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Legislation Cited: Children and Young People Act 2008 (ACT) s 94 Court Procedures Act 2004 (ACT) s 72 Crimes Act 1900 (ACT) ss 55(2), 61(2), 62(2), 64(3), 66(2), 66(3), 66B, 92E(2), 92K(2) Crimes Act 1900 (NSW) ss 61D(1), 61E(1), 66C, 66D Crimes Act 1958 (Vic) s 44(4) Crimes (Sentencing Act) 2005 (ACT) ss 6, 7, 10, 33, 33(1)(j), 34A, 34B, 64(1)(a), 64(2)(f), 65(2), 133C, 133D, 133D(1)(a), 133G, ch 8A Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(2) Criminal Code 2002 (ACT) ss 44, 420, 625(4)(a) Family Violence Act 2016 (ACT) Preamble paras 1(a)-(d) Human Rights Act 2004 (ACT) s 22(3) Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Corby v The Queen [2010] NSWCCA 146 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP (Vic) v Dunlea (a pseudonym) [2017] VCC 1106 DPP (Vic) v Pagani (a pseudonym) [2022] VCC 2013 DPP v Druett [2024] ACTSC 56; 106 MVR 186 DPP v Kenyon [2023] ACTSC 365 DPP v Matas [2024] ACTSC 234 DPP v Muell [2024] ACTSC 184 DPP v Myers (a pseudonym) [2023] ACTSC 142 DPP v van de Zandt (No 3) [2023] ACTSC 359 Dawson v The Queen [2019] ACTCA 9 Forster-Jones v The Queen [2020] ACTCA 31 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Jackson v The King [2023] NSWCCA 121 KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571 Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v Aitchison (No 3) [2018] ACTSC 214 R v BI (No 4) [2017] ACTSC 71 R v BM (Supreme Court (ACT), Refshauge J, 29 October 2012, unrep) R v BS-X [2021] ACTSC 160; 16 ACTLR 238 R v CC [2016] ACTSC 43 R v CV (Supreme Court (ACT), Nield AJ, 5 September 2012, unrep) R v Carberry; Carberry v The King [2023] ACTCA 32 R v Dupuy [2008] VSCA 63 R v EO [2017] ACTSC 138 R v Engert (1995) 84 A Crim R 67 R v Hammer [2019] ACTSC 182 R v Irwin [2019] NSWCCA 133 R v Kilic [2016] HCA 48; 259 CLR 256 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v March [2023] ACTSC 28 R v Smith (No 2) [2022] ACTSC 246 R v TW [2011] ACTCA 25; 6 ACTLR 18 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; 16 VR 269 R v WEF [1998] 2 VR 385 R v WR (No 4) [2015] ACTSC 211 R v WS [2021] NSWDC 135 R v XT [2016] ACTSC 335 R v XX [2009] NSWCCA 115; 195 A Crim R 38 R v Young (a pseudonym) [2021] NSWDC 702 Shannon v The Queen [2006] NSWCCA 39 Taylor v The Queen [2014] ACTCA 9 Veen v The Queen (No 2) (1988) 164 CLR 465 Young (a pseudonym) v The Queen [2022] NSWCCA 111 Zdravkovic v Queen [2016] ACTCA 53; 19 ACTLR 223 Parties: Director of Public Prosecutions Tony Bravo (a pseudonym) (Offender) Representation: Counsel D Swan (DPP) K Musgrove (Offender) Solicitors ACT Director of Public Prosecutions Hugo Law Group (Offender) File Numbers: SCC 227 of 2023 SCC 228 of 2023 LOUKAS-KARLSSON J: Introduction

1. This case involves sentencing for criminal offences involving incest. It is appropriate for the court to issue a caution at the outset of this judgment that it is inevitably disturbing reading. This case is a profound family tragedy. It is a depressing example of the fact that damaged human beings damage other human beings, through the commission of appalling criminal offences. Dry legal words are not adequate to express the depth of this unimaginable family tragedy.

2. On 11 September 2023, Mr Tony Bravo (a pseudonym) (the offender) pleaded guilty to the following charges: (a) Four counts (CH2023/332, CC2022/7924, CH2022/868, CH2023/336) of act of indecency on a person under 16 years and one count (CC2022/7009) of act of indecency in the presence of a person under 16 years, both contrary to s 61(2) of the Crimes Act 1900 (ACT) (Crimes Act), as the section was at the time of the offending. This offending occurred between on 1 January 2015 – 31 December 2015 (CH2022/868), 12 September 2016 – 1 December 2016 (CH2023/332), 1 January 2014 – 13 June 2017 (CH2023/336), and 1 January 2021 – 31 March 2021 (CC2022/7924 and CC2022/7009) respectively. The maximum penalty for this offence is 10 years’ imprisonment. (b) Two counts (CC2023/2005 and CH2023/337) of making available pornographic material to a young person, contrary to s 66(3) of the Crimes Act. This offending occurred between 1 January 2021 – 31 March 2021 (CC2022/2005) and 1 January 2014 – 13 June 2017 (CH2023/337). The maximum penalty for this offence is 700 penalty units, 7 years’ imprisonment, or both. (c) Two counts (CC2022/7010 and CC2022/7011) of incest with a person under 16 years of age, contrary to s 62(2) of the Crimes Act. This offending occurred between 1 January 2021 – 31 March 2021. The maximum penalty for this offence is 15 years’ imprisonment. (d) One count (CH2023/334) of sexual intercourse with a person under 16 years of age, contrary to s 55(2) of the Crimes Act, as the section was at the time of offending. This offending occurred between 1 January 2015 – 31 December 2015. The maximum penalty for this offence is 14 years’ imprisonment. (e) One count (CH2023/912) of attempted sexual intercourse with a person under 16 years of age, contrary to s 55(2) of the Crimes Act, as the section was at the time of the offending, by virtue of s 44 of Criminal Code 2002 (ACT) (Criminal Code). This offending occurred between 1 January 2015 – 31 December 2015. The maximum penalty for this offence at the time of the offending is 14 years’ imprisonment. (f) One count (CC2023/6542) of using a child 12 years or older for the production of child exploitation material, contrary to s 64(3) of the Crimes Act. This offending occurred sometime between 1 January 2021 – 31 March 2021. The maximum penalty for this offence is 1000 penalty units, 10 years’ imprisonment, or both. (g) One count (CC2022/7006) of supply of cannabis to a child, contrary to s 625(4)(a) of the Criminal Code. This offending occurred sometime between 12 October 2018 – 20 July 2022. The maximum penalty for this offence is 500 penalty units, 5 years’ imprisonment, or both.

3. The offender is also to be sentenced for the following transfer charge: (a) One count (CC2023/8896) of unauthorised access to restricted data, contrary to s 420 of the Criminal Code. This offending occurred sometime between 1 January 2021 – 31 March 2021. The maximum penalty for this offence is 200 penalty units, 2 years’ imprisonment, or both.

4. The offences for which Mr Bravo pleaded guilty were variously committed against three victims, two of the victims were young persons at the time of the offending. All three victims were related in some way to Mr Bravo. I will refer to the victims as “Young Victim 1 (YV1)”, “Young Victim 2 (YV2)” and “Victim 3”. Self-evidently, no disrespect is intended. Nevertheless, this approach is essential for the privacy of the victims and for clarity in this judgment.

5. Further, the offender was also a young person when he committed some of the offences. In particular, the offender was a young offender when he committed the act of indecency subject to CH2023/332 against YV1, and the entirety of the offending against YV2. It is not in contention that the offender therefore must be sentenced as a young offender in relation to these offences.

6. In accordance with s 72 of the Court Procedures Act 2004 (ACT), I ordered that the court be closed to the public during the sentence hearings. The fact that the offender was a young offender for these offences also has implications as to the applicable sentencing considerations for the offending, which I will discuss below at [225]-[235]. Agreed facts

7. The agreed facts are set out in the Agreed Statement of Facts, which forms part of the prosecution tender bundle. It is convenient to divide the outline of facts based on individual victims. Understandably, the victims in this case could not particularise the exact dates on which the charged offending for which I must sentence occurred.

8. The agreed facts may be summarised as follows.

YV1 – Incident 1 and Incident 2

9. The offender has 4 siblings. YV1 is the younger maternal half-sister of the offender. YV1 is approximately 7 years and 9 months younger than the offender. YV1 lived together with their mother during the period covered by the offending behaviour. The difference between the offender’s and YV1’s age is approximately 7 years and 9 months.

10. YV1 recalled in general terms that she had been sexually abused by the offender for a long time, and has memories of specific incidents occurring throughout the course of her childhood.

Incident 1: Between 12 September 2016 – 1 December 2016

11. During this period, the offender and YV1 lived together with their mother. YV1 was 10 years old at this time, and the offender was 17 and therefore a young person according to the law as discussed earlier at [5].

12. YV1 was sitting with the offender in the family home. The offender was playing with a gaming console in the offender’s bedroom. YV1 requested a turn and begun playing the console.

13. As YV1 was playing with the console, the offender said to YV1 “Can you show your boobs?”. YV1 asked why she should have to do that, to which the offender responded, “[W]ell, if you want to play my games, you’ve got to show me something.” At the time, YV1 was wearing a pyjama top and no bra underneath. YV1 did not expose her chest to the offender, and said “no” multiple times.

14. YV1 remained in the room and continued to play with the console. As YV1 did so, the offender sat next to her, pulled back the top of YV1’s pyjama top and looked down at her chest before looking back smiling at YV1. This is count CH2023/332, act of indecency on a person under 16 years.

15. Shortly afterwards, another sibling came running to the room to inform them that dinner was ready. YV1 recalled seeing that the room door was locked when the offender approached and opened the door.

Incident 2: Between 1 January 2021 – 31 March 2021

16. During this period, the offender was living with his grandmother. The offender was 22 years old. He had a bedroom in the house, but also used a modified shed in the backyard for recreational purposes such as smoking and playing computer games.

17. YV1 stayed for two nights in the grandmother’s house during the period of 1 January 2021 – 31 March 2021. YV1 was 14 years old at the time. On the first night, YV1 slept on the couch in the lounge room. During the night, YV1 awoke to find the offender lifting the blanket covering her and holding his mobile phone in the other hand. YV1 asked the offender what he was doing, and the offender walked out of the room.

18. On the second day, the offender and YV1 spent an “extended time” in the modified shed. While in the shed, YV1 and the offender consumed cannabis. This caused YV1 to feel intoxicated or “stoned”. YV1 recalled that the cannabis was not mixed with tobacco and consumed via a “bong”. This is count CC2022/7006, supplying cannabis to a child.

19. While consuming cannabis with YV1, the offender disclosed to her his sexual interest in his various family members. This included the offender’s mother and his older sister. The offender then disclosed that he had intimate photographs of various members of the family, secreted on a mobile phone app designed to look like a calculator. The offender told YV1 that he had “hacked” into his family members’ phone to obtain the material.

20. YV1 then observed the offender produce explicit intimate photos and videos. This included a video captured of YV1 showering in the grandmother’s house. YV1 observed that her entire body could be seen in the footage as she showered, including her breasts and genitals. YV1 believed that the footage must have been captured sometime in the preceding days. The footage was captured without YV1’s knowledge or consent. This is count CC2023/6542, using a child 12 years or older for production of child exploitation material. YV1 asked the offender to delete this video. The offender agreed, but YV1 did not observe if he did so. I note again that YV1 was 14 years old at the time.

21. The offender then showed YV1 a graphic video of her sister, Victim 3, performing a sexual act. This video had been filmed by Victim 3 and saved on her mobile phone, accessed by the offender without her knowledge or consent. The showing of this video is count CC2023/2005, making available pornographic material to a young person.

22. YV1 then noticed that while the offender was looking at her, the offender was touching his genitals. The offender then asked YV1 whether she would like to look at his penis. YV1 responded “[N]o, you’re my brother”. The offender persisted, saying that he wanted YV1 to tell him if his penis was “a good size”. The offender also then asked YV1 for advice as to what he should do with a girl he was interested in.

23. The offender and YV1 continued to consume cannabis. Again, the offender asked YV1 if he could show her his penis. After YV1 told him no again, the offender then exposed his penis to her. YV 1 responded “I don’t really want to see that. I don’t want to do anything like that”. The offender then asked “[W]ould you ever like to do anything with me?”. YV1 said to the offender, “no way”, and that the only way she would ever do something like that was if she was paid for having sex with someone. The offender then said he could pay, and would pay YV1 $500.00. YV1 said no, noting that “[I]f someone wants that, they’ve got to pay more because I’m not giving it away.”

24. The offender then offered $750.00. YV1 then said that would be ok, and the offender then said “[C]an we at least do it more than once?”. Shortly afterwards, YV1 removed her top and bra, and the offender came over towards her and touched her breasts. This is Count CC2022/7924, act of indecency on a person under 16 years.

25. At the suggestion of the offender, YV1 and the offender returned to the house. YV1 had a shower, changed to her pyjamas, and went to the offender’s bedroom to sleep. YV1 fell asleep as the offender was playing computer games.

26. At some time in the night, YV1 was awakened by grunting, groaning and slapping noises. YV1 turned over to see the offender’s exposed penis and that the offender was masturbating. YV1 then asked the offender what he was doing, to which he said “[O]h my god… I’m so sorry, I didn’t realise you were still awake” and “I didn’t mean for you to see that”. After YV1 observed his penis, the offender pulled a blanket towards him and covered himself. YV1 rolled back over and tried to go back to sleep. However, YV1 was again able to hear the offender recommencing masturbating after approximately 5 minutes. YV1 turned and again was able to observe the offender masturbating with his penis exposed. This is count CC2022/7009, act of indecency in presence of a person under 16 years.

27. The offender then asked YV1 “[C]an we please do it?”. YV1 refused, saying “[N]o, I don’t want to do like right now”. The continued to plead for them to “do it”, saying “please, please”. After some time, YV1 said “okay”. YV1 then laid on her back, with the offender removing her pants and underpants and throwing the articles of clothing on the floor. The offender then performed cunnilingus on YV1 and penetrated YV1’s vagina with his fingers while holding her legs open. These acts continued until YV1 pushed the offender away. The offender then asked “[W]hat’s wrong?” and YV1 told him to “stop, just stop”. Despite this, the offender then re-positioned himself above YV1 and recommenced engaging in cunnilingus. This is count CC2022/7010, incest with a person under 16 years of age.

28. The offender then pulled his pants down, got on top of YV1 and inserted his penis into YV1’s vagina. The offender moved his penis back and forth for approximately one minute before YV1 pushed him off her and said “stop”. The offender said, “[W]hat’s wrong?” and YV1 said “I’m done”, retrieving her pants and redressed herself. This act constituted count CC2022/7011, incest with a person under 16 years of age.

29. YV1 rolled over and pretended to sleep. The offender moved back to where he had been lying earlier and resumed playing computer games for some time before failing asleep. YV1 went to her grandmother’s room and got into her bed. She could not go to sleep.

Sexual Acts against YV1

30. The agreed facts also noted that prior to the offender turning 14 years of age, the offender committed several sexual acts against YV1. It was not an uncommon practice within the offender’s family for the younger children to shower with their elder siblings. The sexual acts committed against YV1 included an incident when YV1 was between 5-7 years and the offender 12-14 years. The offender made admissions that he: (a) touched YV1 indecently, (b) performed cunnilingus upon YV1, and (c) attempted to penetrate her vagina with his penis before ejaculating onto her body whilst YV1 was in the bath.

31. In admissions to the police, the offender also noted that YV1 disclosed the incident in the bathroom to her friends while they were having a sleepover. The offender noted that his mother spoke to him about it and was supportive of him as long as “it never happens again”.

32. The uncharged acts also included an incident when YV1 was sharing a bath with the offender and the younger brother, and a further occasion when YV1 and the offender was sharing a bath with YV2. The younger brother would have been between 3-6 years old. The offender touched YV1 and either YV2 or the younger brother in each other’s presence. YV2 would have been 7-9 years old. In the offender’s admissions to the police, the offender noted that he did not recall touching YV1 and his younger brother in each other’s presence but noted that if they were all bathing together there were “possibly some questions” and that it was “possible, …, like everything else that’s happening during the time period and what I have forgotten”.

33. I note that, separately, the offender also admitted to the police to getting the younger brother to touch his penis when the offender was aged 13-14 years old to “see what would happen” and noted that he was “trying to get” the younger brother to help him figure out “what felt nice”. The offender also noted that he bathed with his younger brother, where both had erections and would also touch each other’s penis.

34. YV1 also recalled a further incident when the offender laid on her on a trampoline kept in the backyard of their family home when YV1 was 6 years old. As the offender did so, the offender pressed YV1 buttocks while they remained clothed and lying on the trampoline.

35. The prosecution conceded that the presumption of doli incapax is not displaced on the evidence with respect to this offending. In that regard, it is appropriate to refer to sexual acts rather than uncharged acts. These sexual acts with respect to YV1 are relied upon only as sentencing context and as informing the subjective circumstances of the offender, in reference to the evidence of Professor Boer.

YV2 – Incident 1 and Incident 2

36. YV2 is the offender’s younger male cousin. The difference in age between the offender and YV2 is approximately 3 years and 6 months.

Incident 1: Between 1 January 2015 – 31 December 2015

37. During this period, YV2 was aged between 12 and 13 years of age, and the offender aged 16 and 17 years of age.

38. YV2 and the offender were in the offender’s bedroom playing with a gaming console when they commenced having a discussion about sex. The offender then initiated talking about a game of “truth or dare”. The offender then asked YV2 to touch the offender’s penis, saying that it would be “fun”. YV2 felt uncomfortable and did not wish to participate. However, the offender asked YV2 to participate, stating words to the effect of “[I]f you don’t like it we can stop”.

39. YV2 reluctantly agreed and touched the offender’s penis underneath his underwear. The offender was lying down on his bed and YV2 was seated beside him. The offender’s penis was semi-erect as YV2 continued to touch it. When YV2 said words to the effect of “I don’t know”, the offender said “It’ll be okay” and “[I]f you don’t like it, I’m not forcing you”. While holding the offender’s penis, YV2 was directed by the offender to move his hands back and forth. As the touching continued, the offender pulled his tracksuit pants down to his knees, exposing his-now erect penis. The offender also touched YV2 as the touching continued, including touching his genitals over his clothing. YV2 estimated that he rubbed the offender’s penis for approximately 5 minutes. This is count CH2022/868, act of indecency on a person under 16 years.

40. The offender then asked YV2 to put his penis into his mouth. YV2 responded “[O]h, I don’t know. This doesn’t feel right”. The offender responded that “if [YV2] don’t like it, then we’ll stop. It will be okay”. YV2 placed the offender’s penis inside his mouth. However, he pulled it out and told the offender “I don’t like that”. YV2 estimates that the offender’s penis was in his mouth for approximately two seconds. This is count CH2023/334, sexual intercourse with a person under 16 years.

41. The offender then asked YV2 if he could put his penis inside YV2. YV2 refused, and the offender again asked to put his penis inside him and again told YV2 that they would stop if he did not like it. The offender pulled YV2 pants down around his knees and manoeuvred him so that his knees were on the bed and his face bent down. The offender then attempted to insert his penis into YV2’s anus. YV2 felt pain and told the offender to stop. The offender told him to “relax” before continuing to attempt penetration. YV2 then told the offender that he “had enough, it’s time to stop” and the conduct ceased. YV2 estimated that the pain he felt as the offender attempted to penetrate is anus lasted for approximately 10 seconds. This is count CH2023/912, attempt sexual intercourse with person under 16 years.

42. YV2 recalled the offender telling him to not tell anyone about this incident.

Incident 2: Between 1 January 2014 – 13 June 2017

43. During this period, the offender and his family were staying in a property in a suburb of Canberra. The offender was approximately 15-18 years of age, while YV2 was approximately 11-14 years of age.

44. The offender and YV2 were sitting in the lounge area of the property and were on their mobile phones. The offender commenced masturbating with his penis exposed when looking at his phone. YV2 asked the offender what he was doing, and the offender told him that he was watching pornography. The offender then showed his phone to YV2, and YV2 observed that the pornography was cartoon pornography featuring characters from the TV show The Simpsons and Family Guy performing sexual acts. The offender showed this material for between 2 and 5 minutes. This is Count CH2023/337, making available pornographic material to a young person.

45. The offender then asked YV2 if he wanted to touch the offender’s exposed penis. YV2 touched the offender’s erect penis and moved his hand back and forth as he held it. As he did so, the offender touched YV2 on his penis, although YV2 cannot recall if the offender touched him underneath or through his clothing. YV2 felt that the conduct was wrong, and as such stopped touching the offender and said words to the effect “I’ve had enough”. This touching constitutes count CH2023/336, act of indecency on person under 16 years old.

46. The offender then commenced masturbating while YV2 remained seated next to him on the couch until he ejaculated. The parties agreed in submissions received on 24 July 2024 that this act of masturbation remains contextually relevant, but it is not the basis of the charge. YV2 recalled the offender telling him to not tell anyone about the incident.

Earlier acts against YV2

47. As noted above at [32], the agreed facts referred to the fact that the offender also had touched YV2 indecently while they were in the bath. YV2 would have been 7-9 years of age and the offender between 12-14 years. I pause to note that the agreed facts noted that the offender touched “either” YV2 or the younger brother in the presence of YV1. As clarified by the parties on 24 July 2024, the sexual act is relied only as context and informing the offender’s subjective circumstances in reference to the evidence given by Professor Boer.

Victim 3

48. Victim 3 is another younger sister of the offender, and an elder half-sister of YV1. The difference between their ages is approximately 1 year and 10 months. The time-frame given for this offending is between 12 October 2018 and the offender’s arrest in 20 July 2022. I note that this period was previously and erroneously listed as ending on 19 August 2022, but was corrected in the sentence hearing of May 2024.

49. During an examination of the offender’s phone, several video and image files were located in application designed to appear like a calculator (identified as “Secret Calculator” by the offender) and via a Google Drive account.

50. Victim 3 subsequently identified herself as the person captured in the following found material: (a) Two explicit photographs of exposed genitals; (b) A photograph of exposed breasts; (c) Two photographs of exposed buttocks; (d) A video in which a person was masturbating.

51. Victim 3 confirmed that the material was taken by her when she was aged between 18- 20 years of age. Victim 3 had no knowledge that the offender had access to this material. Her phone was protected by a password. To access the material, the offender would have to enter the password. This is count CC2023/8896, unauthorised access to restricted data.

Disclosure

52. During a major argument on 14 July 2022, YV1 first disclosed the sexual offending to her mother, who is, of course, also the mother of the offender. YV1 told her mother that the offender had been sexually abusing her. The mother for her part observed that YV1’s daily behaviour since her early teenage years had been challenging, and that YV1 often spoke of having had trauma.

53. YV1 had tried unsuccessfully to talk about the offender’s behaviour in the 18 months following the incidents that occurred in early 2021. YV1 first disclosed the incidents to her eldest sister (also sister of the offender) approximately two weeks prior to the disclosure to her mother.

54. YV1 and her mother then attended the Tuggeranong Police Station on 18 July 2022 to report the matters to police.

55. The offender’s mother advised the police that she had been aware that the offender displayed aberrant sexual behaviour throughout his childhood and into his adult life. This included the offender viewing incest-themed pornography when he was aged 11 and accessing various family members’ phones without their knowledge to view personal materials. The mother was also aware that the offender had filmed his sisters naked in the bathroom of the family home without their knowledge.

56. Further, the offender had propositioned his mother at the age of 14. The offender’s mother responded that this was inappropriate and that the offender should not think about such things. After this, the offender distanced himself from his mother.

57. YV1 advised police that the offender also disclosed similar aberrant sexual behaviour and interests to her, and that the offender had told her of his sexual interest in his mother, grandmother, and sisters. YV1 also noted that the offender professed concern about his interest in Victim 3’s baby.

58. YV1 was interviewed by the police on three occasions. As a result of disclosures made by YV1 in the first interview on 19 July 2022, police conducted an interview with YV2 on 28 July 2022. Further interviews were also conducted with Victim 3 and with the younger brother in July 2022.

The Offender’s Admissions and Arrest

59. During a record of search warrant conducted on 20 July 2022, the offender also engaged in an interview with the police in which he made several admissions on multiple topics.

60. On indecent materials found on his mobile phone, the offender noted that he used to have an app called “Secret Calculator” on his phone, where he would keep files that he did not want people to see he had. These included indecent materials he had taken from the various mobile phones of his family members, including that of his mother and sisters. The offender described the materials as “a collection of photos that I have of people I probably shouldn’t have”, and that there were possibly some videos. These materials were organised into folders (eg. “YV1”).

61. The offender acknowledged that the images were taken without consent and that taking photos like the material was wrong and is simply not something that should be done.

62. The material included a video taken of YV1 showering. The offender confirmed that he only took such a video once, but that he would have had thoughts of doing it on more occasions. The offender claimed that he was motivated more by “curiosity more than anything” and that he would watch the video occasionally to see “[YV1] naked, more than anything, because I had the desire to see her naked”. The offender also admitted to observing YV1 walking around the family home in revealing clothing and noticing things that “most brothers wouldn’t. Like I would notice her arse or her boobs.”

63. The offender also confirmed that he “often think[s] about [his] sisters” in a sexual way, and that this is “one of [his] bigger issues”. The offender confirmed that he had sexual desires for three of his sisters but only acted on those thoughts with YV1. The offender also confirmed that he had such sexual thoughts “most of his life”. In relation to his sexual desire for YV1, the offender noted that the feelings begin to emerge after the “bathroom incident” but grew stronger once YV1 entered puberty or when YV1 was aged 14 years.

64. The offender also gave his account of the incident that occurred in the bathroom with YV1 and the incident with YV1 between 1 January – 31 March 2021. The offender also admitted to “experimenting” with YV2 when he stayed over and expressed interest in boys about “4-5 years prior”.

65. The offender was arrested and has been in custody since 20 July 2022.

Victim Impact Statements

66. Inevitably, considering the nature of the offences, the impact on the victims of these disturbing offences has been significant.

67. Six victim impact statements (VIS) were read out at the first sentence hearing of February 2024.

68. The first VIS was from Victim 3, which was read out by the police informant in this case. The statement included the following: My life is not the same as it once was, and I’m not sure it will ever be the same again. … I have been violated, and the lack of respect and courtesy that I have been shown has taken an immense toll on not only my life, but on those who I love. The toll cannot be measured. The betrayal that’s happened from someone who I believed was safe to be around undermined everything I believed right in the world. … I have been smoking marijuana to try and drown out my emotions…It’s gotten to the point where it is the only thing that’s helped me balance the anxiety I feel to leave the safety of my own home. But I worry that because I am smoking marijuana it automatically makes me a terrible mother. So I have actively sought treatment from my psychologist… and I am slowly weaning off it. I have been seeing a psychologist… for just over 12 months, and I’ve started recognising that for a long time I had not been any boundaries in place for the way others treat me, or given myself permission to have what I want. Because I feel I don’t deserve to be happy. This has resulted me actively isolating myself from my mother, siblings, aunt, uncle and cousins, who I love and have been an active part of my life growing up. I miss them. These feeling I have of myself, has now spilled into other facts of my life, in particular with my relationship with the father of my daughter. Because of the self-loathing I have of myself, I allowed him to believe to absolute worst of me and my immediately family. I thought I deserve to be manipulated, mentally abused and be controlled into thinking I am not worthy or strong enough to be a good mother or partner. … I am actively working on rebuilding myself, and my life. I know it will take a long time… I want to be happy again and not held back by what has happened to me and my family.

69. The police informant also read the second VIS on behalf of YV2, and included the following: The harm I have suffered because of the offences committed against me frustrates me more than anything. I want nothing more than to be a normal 21 year old man!... … I suffer from severe panic attacks, which strike at any time. The panic attacks are real, and make me feel as if I’m going to die… I go to bed every night afraid to go to sleep because I think I am going to die in my sleep. My heart races every night as I lie down… I struggle to walk into work on a daily basis as I think everyone is looking at me and judging me negatively. I hate people looking at me, as in my mind everyone is thinking the absolute worst of me. I’ve had to see a psychologist and psychiatrist to get treatment for the trauma I endured for years as a child. I hate that I have to do this. And even now, I don’t think it’s helped me enough to overcome the feelings of how powerless I feel in my own body and mind. … For years, before any of this became known, what I tried to do was bury what happened to me… I used drugs and alcohol to numb the pain from the age of 14 all the way through 20, but all that did was take away my opportunity at high school to find where my passion was… and it feels like it has set me back in the career I want to have. Because of what I’ve gone through, I’ve lost my ability to have confidence to make the choices in life I want… … When my mum asked me if I had been hurt… I was terrified. I knew the moment had come and if I confirmed, the pain my family was going to face. I was fine to be the only one who carried the pain, but to see the pain in my [parents’] face, and my siblings is something I carry with me. … I want my life to be normal… I hold onto this hope, but I don’t know when or if this will ever occur.

70. The third VIS was of the mother of YV2, and includes the following: Our ability to protect our son, was taken from us. Never did we think in a million years, allowing our son to know and grow with extended family like cousins, would be the worst mistake we could have made. Because of what has happened to [YV2], we have seen our beautiful, vibrant, funny, excitable, lovable son become a sad, anxious, scared and self-loathing man due to no fault of his own. … When [YV2’s father] and I were first told that our son… had been sexually abused as a child, over a sustained period of time, we were in complete and utter disbelief. There was no way a member of our extended family would or could hurt our baby, especially when [YV2] was so young. Being the parents we are, … we asked [YV2] if this was true. I will never forget the moment when I asked my 19 year old son if he had been hurt by [the offender]. His eyes were wide and frightened, and his response was a single tear falling down his cheek and him just nodding. … What [YV2] had worked so hard at by turning to drugs to push down … had been awoken and he has had to face the harsh reality that he is a victim of child sexual abuse, and everything that goes with that. … He is still trying to protect us, his parents, by asking us not to know what the details are… All we know is that our son was hurt, and is a victim of child sexual abuse. This is our worst nightmare as … parents. The impacts of what was done to [YV2] is still being felt by him. …

71. The fourth VIS is that of the mother of the offender, YV1 and Victim 3, and includes the following: [YV1] is the bravest and strongest person I know, and I am so very proud of her. … In late 2014, I made the decision along with [YV1] father, for both [YV1] and [the younger brother] to live with their dad and his-then wife … Little did I know this period was one of the few times [YV1] was not at risk of being abused from inside my own immediate family. … During [YV1]’s early teenage years through to when she was 16, [YV1]’s behaviour escalated both in a physical and verbal sense. She hated going to school… She would often fly into a rage, with the majority of her anger and frustration aimed solely at me. This was usually due to her thinking I didn’t understand where her frustration was coming from, and to a great point, this is correct. I didn’t understand why she was angry all the time or what / who was causing it. … I didn’t realise that my own home was the one place [YV1] was most at risk of being hurt. … It was that moment … when it first dawned on me the realisation and gravity of the terror [YV1] had been going through since she was a little girl. The blame and pain that she had endured all her life hit me like an atomic bomb… It … made me sick physically and my world crashed that exact moment. The home that I had made and the children I had raised, was the one place where she should have felt completely safe, loved and protected. I was so very very wrong. I never felt more like a failure than at that moment. … [YV1] is still angry at me, is angry at her older sister, does not live with any of her siblings and only lives with my mum… I lost everyone in 24 hours… I felt like the whole world blamed me for the destruction of my family. I have been judged, alienated, pushed away and not supported by anyone. I lost jobs, lost my husband and lost friends… I lost 5 kids in one blow and the pain of that will never go away. I did my absolute best with the hand I was dealt, and I have always loved my children and put them first even though they do not see or believe that. I protected them from every outside influence I could. I had no idea the danger was under my own roof. … I blame myself enough and will always blame myself no matter who says different. … I am not allowed to love [the offender]. I am not allowed to feel sorry for him. I am never allowed to ever support him and I understand that. But I am also his mother and I have also hurt him… …Once there was a time when the offender came to me to talk and from the conversation, I knew there was a problem with him. I thought he was just confused as he was young and going through puberty, but regardless I should have made a point to get him the help he obviously needed, but instead I stuck my head in the sand and tried to believe that he will grow out of it and that he would understand what he said was wrong. I should have made sure he got the help he desperately needed. … They should never be going through any of this and that is my fault. If I could change things I would but I can’t…. Our family unit is broken, and our lives will never be the same again. …

72. The fifth statement is from YV1, and includes the following: What [the offender] did to me over all those years was really confusing for me. I couldn’t make sense of it. He is my half-brother. Then it started to make me increasingly angry because I started to realise how much it affected me and nobody believed me. I would get aggressive, and people would ask me why… I stopped playing footy because I would be too aggressive. I got into fights at school and eventually stop going. I finished year 10… Around 11 years of age I started self-harming because I didn’t know how to feel and hurting myself would take away the thoughts of what he was doing me. I wanted to take it away for a second. I would pull my hair out when I got really upset. I had no idea how to stop it and was scared it might also happen to others in my family… Even after the physical abuse had stopped, I would still get very triggered when I saw [the offender].. [The offender] would also encourage me to smoke pot and would supply pot to me. Because of that, I was a heavy pot smoker from about 11, maybe a bit older… I started to smoke heavily after the first time [the offender] penetrated me… It led me to oversexualise myself, but whenever something was going on with a male it would make me physically sick and I would vomit. So it really affected my ability to relate to other men, what [the offender] did to me. … I always look over my shoulder, always feel in fight-or-flight more even now… … I also have [borderline personality disorder] symptoms, but that can only be diagnosed when I am 18. My brain works non-stop, I am always dreaming nightmares about [the offender] and also other stuff. It makes me feel exhausted and I have no energy during the day. I feel always unsafe. …. It had, and still has such a big impact on so many areas of my life.

73. Finally, there is also a VIS from the father of YV1, a previous partner of the offender’s mother: I found out about this several months after [the offender] was arrested, [YV1] sent me a text message saying ‘Dad I need to talk to you ASAP’. I called her that night and she told me the most horrific thing to hear from your daughter as a [d]ad. She cried and cried and I felt so much guilt, I’ve still got it today. I felt … like I failed my children… When I was with [YV1]’s mum, I used to do everything with [the offender]… After finding out what he done, I felt betrayed and hurt and I’m still very angry. Looking back at [YV1]’s life, there is a point in time [where] I remember she changed… I didn’t pick it at the time but it’s very obvious to me now. … When [YV1] was about 12 or 13 years old, I found out she was hurting herself but I didn’t know why. I found her sheets and doona covers in her bed were cut and she was wearing long sleeves covering her arms… when I was back I asked [YV1] about this and she showed me her arms. We needed to put in a safety plan and remove all sharp objects. … I remember finding [YV1’s] diary once after clearing her desk… I found writing on her desk under everything, things like ‘I want to die’, ‘I’ve had enough’,…. I looked into her diary and it was full of nasty stuff, some about me, some about her mom, some about smoking put, a lot about wanting to hurt herself. … [The offender]’s actions have really torn up the family, caused a big divide in [the offender’s mother]’s family, her sister and all of the kids. This has teared [YV1] and she thinks it’s all her fault. She is always apologising to me, for not telling me soon, she didn’t want to hurt me, for putting everyone through this and for just putting people out in general. … [YV1] had problems keeping jobs … [YV1] won’t get closure after this court case and is sick of everyone telling her she will get closure. I know this will be with [YV1] for the rest of her life… she missed out on being a young girl… on doing a lot of young girl things. … [The offender] was her brother, this should not have happened. …

74. The prosecution correctly submitted that the effect that the offending has had on the victims and their families is profound. This is abundantly clear to the Court. It is without question a profound family tragedy.

75. This Court recognises the undeniably serious impacts of these crimes on the victims. The Court acknowledges the importance of what the victims YV1, YV2 and Victim 3 have expressed in their statements. The Court recognises and underlines the serious and long-lasting effects of the offender’s crimes on all the victims and acknowledges and underlines the significant impact that the offences have had on the victims and the parents who gave VIS.

76. I repeat what I said at the sentence hearing of February 2024, when the victim impact statements were read out. The victim’s statements were dignified and eloquent of pain, and clearly difficult and distressing to write. It is self-evident that none of this should have happened to the victims.

77. The Court also acknowledges what YV2’s mother, the mother of YV1 and Victim 3, as well as YV1’s father have expressed in their eloquent and dignified statements. No child and no parent should have to go through what they have all been through in this case. Additionally, the Court recognises the serious effect that the offender’s crimes have had on children and families. The Court also acknowledges the additional guilt expressed by the mother of both YV1 and Victim 3, who is also the offender’s mother. The home environment created by the mother of the offender and the mother of victims YV1 and Victim 3 was not a safe childhood home.

Issues at the hearing

78. At the outset, I note that this is a case where the sentence must be a sentence of imprisonment in light of the seriousness of the offences. The prosecution submitted that the threshold for imprisonment was crossed in this case. This submission was also maintained in relation to the offending committed when the offender was a young offender and not an adult. Counsel for the offender conceded that a term of imprisonment is appropriate overall in this case (save for the initial act of indecency against YV1 and the offending against Victim 3).

79. Notwithstanding this and other areas of otherwise proper agreement as between counsel, it is clear that there are contentious sentencing issues. First, as I will discuss under the next heading, there is significant disagreement as to the objective seriousness of the offender’s conduct. Second, there is the issue of the offender’s prospects of rehabilitation.

80. Third, there exists a significant issue concerning the psychological report of Professor Douglas Boer dated January 2024 (the Report by Professor Boer) tendered on behalf of the offender. Specifically, the main area of contention centres on the diagnoses made by Professor Boer, and the application of the Verdins and Bugmy principles. The Court has had the benefit of Professor Boer giving evidence at the sentencing hearings in both February 2024 and May 2024.

81. Ultimately, counsel for the offender submitted that taking into account backdating, a period of imprisonment imposed to account for the time the offender has already spent in custody, the offender should be left to serve a further “short sharp term” of further imprisonment followed by a further period of supervision in the community with strict supervision to allow the offender to attend rehabilitative counselling and courses. My view as I discuss later in this judgment, is that a further term of imprisonment longer than “a short sharp term” term of further imprisonment is required in light of the seriousness of the offences. Clearly, intensive rehabilitation is also required taking into account all the evidence that I discuss in detail below. Objective seriousness

82. An assessment of the objective seriousness of an offence has always been an essential part of the sentencing process: DPP v Druett [2024] ACTSC 56; 106 MVR 186 at [19]; see Forster-Jones v The Queen [2020] ACTCA 31 at [29]-[30]. It has been stated in this jurisdiction that it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24] (Toumo’ua). Categories as to range may be opaque and lack clarity. What is required is for a court to “identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I will identify relevant features in relation to the objective seriousness.

83. Before turning to the objective seriousness of the specific offences, it is useful to note the general submissions made by both parties.

84. In written submissions, counsel for the offender submitted that the offending was generally at “the lower ranges” in terms of objective seriousness with the exception of the count CH2023/912 offence, which counsel for the offender conceded was at the lower end of mid-range, as opposed to low range of objective seriousness. Counsel for the prosecution disagreed with the broad submission relating to objective seriousness made by counsel for the offender.

85. Counsel for the prosecution properly referred to the age difference between the offender and each of his victims: see DPP v Kenyon [2023] ACTSC 365 at [57]-[58]; Shannon v The Queen [2006] NSWCCA 39; R v Hammer [2019] ACTSC 182 and Corby v The Queen [2010] NSWCCA 146.

86. The prosecution submitted and I agree on the evidence before me that the following factors would inform an assessment of the objective seriousness of the offending concerning YV1: (a) The power imbalance between the offender and victim (informed by the age difference and the offender’s status as an older sibling); (b) That the offending was committed for the offender’s sexual gratification. (c) That grooming was used by the offender to commit the offences. The prosecution also referred to the Report by Professor Boer, which noted that “the majority of [the offender’s] current offences involved attempts to gain compliance of victims through grooming tactics”. Offending Against YV1

87. The offences committed against YV1 are incestuous in nature. All but one of offences committed against YV1 occurred when the offender was 22 years of age.

88. I will now turn to the parties’ submissions in relation to each individual offending against YV1.

Count CH2023/332 (act of indecency)

89. Counsel for the offender in written submissions argued that the act of indecency that occurred in “Incident 1” (CH2023/332) was of low-level of objective seriousness. Counsel for the offender submitted that there was no physical contact involved and the offending lasted “a very short period of time”. At hearing, counsel for the offender agreed that there was “a level of coercion” in that the offender pulled YV1’s top and looked at her breasts.

90. The prosecution properly agreed that this particular offence was of a “lower” objective seriousness for the offences of this type. Counsel for the prosecution noted that while the offending involved coercion, the act itself is limited to staring at YV1’s chest. The offender was also a young offender at the time this was committed.

91. The submissions made by the prosecution and counsel for the offender accord with my view of the objective seriousness of this particular offence as being at lower objective seriousness taking into account the identifying features discussed above.

92. In oral submissions, counsel for the prosecution highlighted that it is relevant that YV1 was in the lower age range for the offence at the time of this offending (10 years old). Further, counsel also noted that the offender ignored YV1 saying no, and that the offender used gaming as a grooming tactic. In conclusion, counsel for the prosecution maintained that, on account of the aggravating features described, the threshold for imprisonment had been crossed in contrast to the offender’s submission. In my view any sentence of imprisonment in relation to this count in context of the other offending would have to be fully concurrent as a matter of totality.

Count CC2022/7006 (supply of cannabis to a young person)

93. Counsel for the offender initially submitted that the offence of supplying cannabis to YV1 (CC2022/7006) is of “low-level objective seriousness”. Counsel for the offender noted that the offender provided the victim cannabis while they were playing computer games, and that it appears that cannabis was readily available throughout the household, including from the victim’s mother. At the hearing, counsel for the offender noted that the offending must be viewed in light of evidence from the offender’s mother’s VIS that she was also a cannabis user and would regularly provide YV1 with cannabis. Counsel noted her instructions that the offender’s mother supplied the cannabis to the offender which was then supplied to YV1 and as such YV1 was not “brand new to the exposure of cannabis”.

94. By contrast, counsel for the prosecution submitted in written submissions that the supply of cannabis to YV1 occurred in the context where the offender then proceeded to detail his sexual perversions for other family members before committing further sexual offending against YV1. Counsel also noted that YV1 was 14 years of age, and consumed the cannabis pure (absent tobacco), via a bong, and the cannabis was of sufficient potency for the victim to feel “stoned”. Further, the prosecution submitted that this offending cannot be divorced from the sexual offending that followed.

95. In oral submissions, counsel for the prosecution further submitted that the fact that cannabis was consumed regularly in the household, while possibly contextualising the offending, did not mitigate the offending. In reply, counsel for the offender maintained that the general exposure to cannabis mitigates as this entails that YV1 was not a person who was seeing and consuming cannabis for the first time. In other words, counsel for the offender submitted that the “normalisation” of cannabis use in the household mitigates the offending, although counsel conceded that this is not “necessarily much of a mitigating factor”. In my view, this is not a particularly significant mitigating factor.

96. Ultimately, the prosecution submitted that the objective seriousness of this offending was in the context of sexual offending.

97. In conclusion, I do not assess this offence as of low-level objective seriousness as was submitted by counsel for the offender. The offending is above low range. The supply of cannabis by a 22-year-old man to a 14-year-old child is a most serious identifying feature of this offending.

Count CC2023/6542 (use child for production of child exploitation material)

98. Counsel for the offender submitted that the offending of using YV1 to produce child exploitation material (CC2023/6542) was also of “low-level objective seriousness”. Counsel noted the filming had occurred without the victim’s consent or knowledge while YV1 was in the shower in the home they were sharing. The footage showed the victim showering herself and included footage of her breasts, genitals, and anal regions, but does so from a “distance”. Counsel submitted that there was no penetrative conduct in the making of the footage and the victim was unaware of its existence until shown by the offender. Counsel also noted that the footage was not made for dissemination and was in fact not disseminated.

99. Counsel for the offender noted at the hearing that while there was a breach of trust in creating the footage, the breach was not through the offender “using” YV1 by directing her what to do. Further, it was submitted that there was no other contact offending occurring at the same time. Counsel submitted that this lessened the objective seriousness of the offending.

100. In oral submissions in reply, counsel for the prosecution cavilled with the significance of YV1’s footage being taken “at a distance”. As YV1 was in the shower, the distance would have been “metres” at most. Rather, counsel for the prosecution submitted that the objective seriousness of the offending was compounded by the offender retaining the footage to view for his own sexual gratification.

101. Counsel for the offender underlined that the point about “the distance” was made to contrast the situation of an offender who was present and choreographing YV1 on what to do for the purpose of being captured by the footage. In other words, the relevance of “distance” was in the absence of any direction from the offender. Counsel ultimately properly accepted that this pointed rather more to the absence of an aggravating factor.

102. Counsel for the offender properly agreed that the most important consideration for this Court is that the offender filmed YV1 and that the reason for the filming was obviously the offender’s sexual interest in YV1 and the desire to see her naked.

103. Relevantly, in DPP v Myers (a pseudonym) [2023] ACTSC 142, Mossop J stated at [38]: [T]he objective seriousness of this offence depends upon both the acts involved in the production of the child abuse material, as well as the circumstances in which that child abuse material came to be produced.

104. Applying these principles, I agree with the prosecution’s submission that the video captured the naked body of a 14-year-old child and was filmed without the victim’s knowledge or consent and was for the offender’s sexual gratification. The offending involved an invasion of privacy and a breach of familial trust.

105. In conclusion, I do not assess this offence as of low-level objective seriousness as was submitted by counsel for the offender. In my view in light of the identifying factors discussed above at [104] the offence is above low range. Count CC2022/2005 (making available pornographic material to a young person)

106. In relation to the offender showing YV1 the footage of Victim 3 engaging in sexual conduct (CC2022/2005), counsel for the offender submitted that the offending is of low-level objective seriousness. Counsel submitted that the showing of this footage does not appear to have been done for sexual gratification, but more as a confession of having accessed the footage.

107. Counsel for the prosecution submitted that in assessing the objective seriousness of this offending it was important to underline that the victim was shown explicit video footage of her sister performing a sexual act, as opposed to “general pornography with unknown participants”. I agree with the prosecution’s submissions, as it accords with my view of the facts. Counsel for the offender accepted that the footage showed Victim 3 masturbating and that made the offence “objectively far more serious” but submitted that the objective seriousness should also be informed by other factors concerning the nature of the offending (eg. nature of the footage being only of masturbation, of unclear length).

108. In further submissions, counsel for the prosecution submitted that the “only inference available” was that the footage was of Victim 3 masturbating as this was the only footage of Victim 3 found by the police.

109. Finally, counsel for the prosecution submitted that there exists an aggravating factor in that the offender was showing YV1 the footage for his own sexual gratification. Counsel highlighted the fact that the offender was touching his own genitals while looking at YV1, and then proceeded to ask YV1 if she wanted to see his penis. Further, the prosecution noted that prior to this the offender was showing YV1 the footage of YV1 in the shower. In other words, this offending was submitted to be “intrinsically linked to the offender wanting to commit sexual acts against [YV1]”.

110. Counsel for the offender submitted that the motivation of the offender is unclear, and that this Court should not hypothesize or second guess the reasoning why the offender showed the footage. In other words, the submission was that this Court cannot be satisfied beyond reasonable doubt of this aggravating feature. I disagree with this submission. The motivation is not unclear on the evidence.

111. In my view, the aggravating feature is proven beyond reasonable doubt on the evidence. I am not satisfied that this offending is of a low-level objective seriousness as submitted by counsel for the offender the offender. It is above low level in light of the features identified and discussed above at [109]-[110]. Counts CC2022/7924 and CC2022/7009 (act of indecency)

112. Counsel for the offender submitted that the act of indecency (CC2022/7924) was of “low-level objective seriousness”. Counsel for the offender conceded that the touching of YV1 breasts was a “breach of trust” reposed in an older brother. However, counsel noted that neither violence nor threats was used by the offender. Further, the touch was said to be quick.

113. Counsel for the offender also submitted that the second act of indecency (CC2022/7009) encompassed in Incident 2 was equally of “low-level” objective seriousness. Counsel submitted that the offender apologised when he realised YV1 was awake and pulled his blanket to cover his penis once he realised YV1 had seen his penis. Counsel for the offender also noted that YV1 then turned on her side and heard the offender masturbating again after 5 minutes.

114. Counsel for the offender submitted, in relation to the touching of the breasts, that there was no premeditation involved. The spontaneity of the offending, it was submitted, lessened the objective seriousness of the offending. Further, while there was a breach of trust and the fact the offender was older meant that a trust was reposed in the offender, counsel for the offender noted that the breach was not of a trust placed on a parent. a religious minister, or a school teacher. Counsel for the offender also noted that while there was “a small level” of coercion involved, no physical violence was used.

115. Counsel for the prosecution in relation to both counts of act of indecency noted that the acts occurred after YV1 had refused the offender. YV1 had responded to requests to perform sexual acts by saying “no, you’re my brother”, “no way”. Further, YV1 stated that she “[didn’t] really want to see” the offender’s penis. The offender’s overriding of the clear wishes of the victim is, in my view, relevant to objective seriousness of the offences.

116. I agree that the identifying features referred to above including the fact that both counts occurred after YV1 had refused the offender’s incestuous demands entails that the objective seriousness is not low level as contended for by counsel for the offender.

Counts CC2022/7010 and CC2022/7011 (incest)

117. In relation to the incest offending that involved cunnilingus and digital penetration of YV1’s vagina (CC2022/7010), counsel for the offender submitted that it was of “upper low-level objective seriousness”. Counsel noted that the act was for “a very limited period of time”. Counsel also noted that there was no violence used and no degradation or humiliation. Counsel also noted that there was no chance of pregnancy from the act. By contrast, counsel for the prosecution highlighted the fact that the offender continued to perform cunnilingus, even after YV1 pushed him away and told him to “stop, just stop”.

118. Counsel for the offender also submitted that the second offence of incest against YV1 (CC2022/7011) was of “upper lower-level objective seriousness”. Counsel submitted again that there was no violence, degradation or humiliation, and the offender stopped when he was asked to. Counsel for the offender submitted that while there was penile-vaginal intercourse, this was for a short period of time and the offender did not ejaculate.

119. Counsel for the prosecution in written submissions noted that this act occurred immediately following the offender being pushed and told to stop but continuing to perform cunnilingus. Counsel for the prosecution noted that penetration occurred without a condom for approximately 1 minute and was also absent contraception. The penetration only ceased when the offender was told to stop, and YV1 dressed herself.

120. More generally, on the issue of premeditation and coercion, counsel for the prosecution submitted that the offender demonstrated a disregard for YV1’s refusal. While not involving careful or detailed planning, counsel for the prosecution submitted that the offender “had in his mind engaging in sexual acts”. As such, counsel submitted that there is premeditation evidenced by the offender’s persistence and escalation. I agree that there is pre-meditation to that extent on the evidence as discussed below at [122].

121. I note that counsel for the offender at the May 2024 hearing maintained the submission that there was no premeditation whatsoever. Counsel noted that the offender and YV1 were living together, and the facts do not establish that the offender did anything that would indicate planning (eg. separating YV1 from her family, taking her to a remote location). In my view, the fact that there was not greater planning does not mean there was not some level of premeditation.

122. The prosecution conceded that there was some initial degree of opportunism (with escalation), and that there was an absence of significant degree of planning. This submission accords with my view of the facts.

123. Counsel for the prosecution noted, that there was physical and verbal resistance on the part of YV1 during the two incest counts and that resistance was ignored. Counsel for the offender in the May 2024 hearing properly accepted that the conduct engaged by the offender could not be said to involve “no violence”. Counsel for the offender clarified that the submission of no violence was in the sense of no further violence (eg. holding YV1 down), which would have been a further aggravating factor.

124. In conclusion, I am not persuaded that the offending was only of “upper low-level objective seriousness” as was submitted by counsel for the offender. The offending of CC2022/7010 was marked by identifying features of the offender being pushed and told to stop. The offending of CC2022/7011 was marked by the identifying feature that penetration occurred without a condom. Further, I note that there was premeditation and coercion to the extent discussed above at [122].

Offending Against YV2

125. The offending against YV2 occurred when the offender was a young offender. Counsel for the prosecution correctly submitted that the objective seriousness of the offending is informed by the following factors: (a) The power imbalance between the offender and victim (informed by the age difference). I note that the offender was approximately 3 years and 6 months older than YV2. (b) The level of premeditation involved in the offending; the offender suggesting a game of “truth or dare” to initiate sexual contact and exposing the victim to pornography prior to committing sexual acts for the offender’s sexual gratification. (c) That the offender ignored direct requests to stop, from YV2.

Incident 1 (CH2022/868, CH2023/334 and CH2023/912)

126. As to the specific offences against YV2 encompassed in “Incident 1” (CH2022/868, CH2023/334, CH2023/912), the prosecution submitted that the offences all occurred in the context of the offender initiating sexual contact with a child in the form of a “game”: truth or dare. The offender was made aware of YV2’s discomfort during the incident. The prosecution highlighted that despite the offender saying to YV2 “if you don’t like it, we can stop”, the offending escalated to the point of attempting penetration of YV2’s anus, which caused YV2 significant pain and discomfort. This attempted penetration continued after the offender was explicitly told to stop, to which his response was telling YV2 to “relax”. In my view, these are all significant identifying features that inform objective seriousness.

127. Counsel for the offender made the following submissions in relation to the three counts in “Incident 1”. First, the act of indecency (CH2022/868) is of “low-level objective seriousness for offences of this kind”. The prosecution made no submissions as to range. Counsel for the offender submitted that there were no physical violence or threats. At the hearing, counsel for the offender also cavilled with the prosecution’s characterisation that there was a significant degree of premeditation from the playing of “truth or dare”. Further, while counsel for the offender conceded that there was “cajoling” involved, there was no physical violence or threatening behaviour on the part of the offender. I take these identifying features into account on the objective seriousness of this count.

128. Counsel for the offender further submitted that the sexual intercourse with a person under 16 (CH2023/334) offending was at the “upper lower level of objective seriousness). The prosecution made no submissions as to range. Counsel submitted that there was no violence and the offender stopped when the YV2 said he did not like it and the offender did not ejaculate. I take these identifying features into account on the objective seriousness of this count.

129. Further, counsel for the offender submitted that the attempted sexual intercourse with a person under 16 years (CH2023/912) offending is of “lower mid-range” of objective seriousness. Counsel noted that the offending occurred immediately after the offending subject of CH2022/868 and CH2023/334. Counsel for the offender submitted that there was no physical violence used in the offending. There was also, it was submitted, no threats of violence. Further, counsel submitted that the offending lasted for only a short time and the offender stopped when requested by YV2.

130. In relation to the attempted sexual intercourse (CH2023/912), counsel for the prosecution submitted that this count involved the infliction of direct violence on YV2. YV2 was in significant pain. As such, it was submitted that the offence was serious. I agree. This is indeed a serious offence.

131. In conclusion, as to count CH2023/912 I note that the prosecution did not put forward a submission concerning a specific range of seriousness. Nevertheless, I do not agree with the “lower-mid range” submission made by the counsel for the offender. It is serious offending and above the label attached by counsel for the offender. The identifying features are outlined at [125]-[126], and [130].

132. Counsel for the prosecution noted that there was some premeditation for count CH2022/868. Suggesting a game of “truth or dare” and immediately introducing a sexual element was submitted to be evidence of some premeditation (although not sophisticated planning) on the offender’s part. I agree with this submission. It is clear on the evidence. See [127]. It was not on the evidence a significant level of premeditation.

133. Further, counsel for the prosecution correctly noted that the Report by Professor Boer itself described the game of “truth or dare” as a grooming-type behaviour. Counsel for the offender accepted that this was a “low-level” and unsophisticated type of grooming behaviour (see [127]).

Incident 2 (CH2023/337 and CH2023/336)

134. In relation to the counts in “Incident 2”, counsel for the offender submitted that the pornographic material (CH2023/337) offending in “Incident 2” was of “low-level objective seriousness”. Counsel submitted that this was a discrete incident, one that was not long lasting. The pornography shown was cartoon animation. In oral submissions, counsel for the offender noted that the video was shown for 2-5 minutes, and in the absence of particularisation of the material this Court should not assume that the worst type of sexual acts were depicted in the cartoon pornography. In my view, these matters are relevant to the Court’s assessment of objective seriousness.

135. In relation to masturbation in presence of YV2 incident that formed part of “Incident 2” (CH2023/336), counsel for the offender highlighted the lack of violence and coercion as well as the brevity of the episode. In my view, these matters are relevant to the Court’s assessment of objective seriousness.

136. I conclude the specific offending concerning count CH2023/337 does tend toward lower-level objective seriousness in view of the fact that it was cartoon animation. As to the offending subject of CH2023/336 (the “mutual” touching) in view of the identifying features outlined above at [135], this offending also tends toward lower range.

Offending Against Victim 3

137. Counsel for the prosecution submitted that the offending “must be regarded as a serious example” of an unauthorised access to restricted data offending (CC2023/8896). I agree. The prosecution properly submitted that the seriousness of the offending is informed by the following which accord with my view of the relevant identifying features: (a) The material taken was not insignificant (5 x photographs, 1 x video) and contained graphic depictions of Victim 3’s genitals and of her performing a sex act. (b) The offending involved a familial breach of trust, “not only that [Victim 3]’s material would be accessed, but that it would be done so by a trusted family member” for sexual gratification. (c) That a level of sophistication was involved in the offending, namely the attainment and use of a protected password before removing the material from the victim’s phone.

138. For the offender, it was submitted in written submissions that the offending was of “low-level objective seriousness”. I disagree. Counsel for the offender submitted that while it is a breach of privacy, the material was not shared beyond being shown to YV1. Further, the material was not used in any way to exert influence on Victim 3. At the hearing, counsel for the offender conceded that the offending involved a breach of familial trust, while noting at the same time that the offender’s mother appeared to have been aware of the offending for a period of time.

139. Counsel for the prosecution submitted that while the instant offending is not a typical example of the offence, that is not involving accessing data from corporate entities, the offending remained a serious example of such an offence. I agree as this accords with my view of the facts as discussed at [137].

Subjective circumstances

Pre-sentence report

140. In evidence before me is a pre-sentence report dated 30 January 2024 prepared for the offender (PSR) which includes the following in relation to the offender’s subjective circumstances. At the time of sentencing, the offender is 25 years of age.

141. Records indicate that the offender’s behaviour in custody has been satisfactory and there has been no negative interactions.

Family Background

142. The offender was born in Queensland. There was a lot of moving during his childhood. His family moved to Canberra when he was 9 years old. The family moved back to a city in Queensland when he was 18 years old and the offender also resided with his father at some point. The offender eventually returned to live with his mother in Queensland, then back to Canberra.

143. The offender reported being raised in a dysfunctional household and described himself as the “emotional punching bag of the family.” His sister confirmed that the offender was subjected to ridicule and humiliation by the family. His parents divorced when he was aged two, and he had no contact with his father until he was 19 years old. Family members told the offender that his father was physically abusive towards him, although he personally has no recollection of this. The offender did recall irregular physical abuse from his mother, and more regularly by his stepfather.

144. The offender has four siblings on his mother’s side including YV1 and Victim 3, victims of the current offences. The offender reported that he no longer has contact with his mother or three of his siblings. The offender also reported that he ceased contact with his mother due to the emotional abuse he was subjected to in his childhood. The offender also has two siblings on his father’s side, and he does not have contact with them. The primary support for the offender is his older sister and her partner.

145. The offender also disclosed that he and his older sister were the victims of sexual abuse perpetrated by a babysitter when they were children. Although they have discussed the offence as adults, they had made the decision not to report the matter to the police.

Socioeconomic Background

146. Prior to being remanded in custody, the offender reported that he had resided with his sister and her partner for one month. Before this, he had been renting a room from a work colleague. The offender advised the author of the PSR that he can return to live with his sister in the future. This was confirmed by his sister.

147. The offender left school during Year 11. The offender obtained a Certificate in Customer Relations. The offender reported an employment history of working in fast food restaurants and retail as a teenager, although he was unemployed for a three-year period when living in Queensland. The offender had been employed in retail for a year prior to being remanded in custody.

148. In custody, the offender is employed as an activities coordinator. Previously, he held the positions of leading hand and sweeper.

149. The offender reported social contact with work colleagues prior to being remanded in custody. The offender noted that he has not attempted to contact any friends while in custody, stating he did not think they would want to remain in contact with him. When in the community, the offender would spend his leisure time smoking cannabis, playing video games, socialising or exercising.

Alcohol and Drug Use

150. The offender reported cannabis use from the age of 15. The offender stated that cannabis was readily available in the family home. Prior to the offender’s arrest and remand in custody, he was using cannabis daily. The offender would smoke prior to work and upon returning home each day.

Mental Health

151. The offender advised the author of the PSR that he had experienced suicidal thoughts from a young age. The offender stated he had been exploring mental health treatment with a psychiatrist or psychologist in the community.

152. The offender’s sister described him as “sad” from a young age and recalled some attempts to seek help from a General Practitioner when he was a teenager. His sister noted, however, that the offender was reluctant to engage in counselling at that time.

153. The offender reported being prescribed medication when first in custody, although he is no longer taking medication. The offender reported ongoing suicidal thoughts. However, the offender was able to identify strategies to prevent him from acting on those thoughts. The offender recognized that his mental health is an ongoing issue and is working on managing his mental state.

154. The PSR mentioned that the offender has engaged in three periods of counselling with the Supports and Interventions Unit (SIU). The PSR noted that counselling is available from the SIU for up to three months, after which time detainees may submit another referral. Counsel for the offender highlighted that the PSR stated that the offender will be able to participate in offence specific programs after sentencing. Information received from ACT Health advised that the offender first had contact with mental health services in July 2022 and had an inpatient admission for five days. After this time, the offender was returned to court and remanded in custody.

155. Relevantly, the PSR also noted that the offender had contact with a psychiatrist in custody who provided a diagnosis of unspecified paraphilic disorder. After this diagnosis, his file was closed with Custodial Mental Health Service.

Conclusion of the PSR

156. The PSR concluded in brief as follows: that the offender was a 25-year-old man who reported experiencing emotional and physical abuse growing up. The PSR further noted that the offender was a heavy cannabis user. The offender was employed prior to being remanded and is employed in custody.

157. The PSR noted that the offender acknowledged his need to engage in further treatment to address his offending. The offender has accepted he will no longer have contact with many family members due to the offending. He benefits from ongoing support from his older sister.

The Psychological Report of Professor Boer

158. Also in evidence before me is the Report by Professor Boer, tendered on behalf of the offender. As noted above at [80], the diagnoses and implications of the Report by Professor Boer were in contention at the sentencing hearing. It is convenient to set out the relevant expert opinions of the Report by Professor Boer, before turning to the oral evidence at the sentence hearing of Professor Boer and then considering the submissions of the parties.

General Background

159. The Report by Professor Boer provided some further context as to the offender’s subjective circumstances. I will set out some relevant detail below.

160. The offender understood from his mother that his parents had an “antagonistic relationship” and that there was domestic violence. The offender stated that his mother told him that his father used to lock the offender in his room, “was possibly an alcoholic” and was physically abusive of him before the age of 2. The offender felt that his grandmother was the “nurturing person in our (the children’s) lives”.

161. The offender noted that, in contrast to the “not close but not antagonistic” relationship he has with his father, the offender has “pretty much cut [his mother] off (and) hasn’t had much to do with her since [the offender] was 19”. During this period, the offender claimed that the offender’s mother was essentially “his pot dealer”. The offender described his mother as, among other things, “manipulative and mentally abusive” and he currently refuses to see his mother.

162. The offender stated that he “hated school” because of bullying he received and felt only “a few teachers tried to help and put in an effort (to help him)”.

163. The offender noted that he was suicidal and depressed throughout his late teens. He also noted that his mental health issues interfered with his ability to work.

164. The offender reported “quite a few” experiences of sexual abuse at the hands of babysitters “over [a period of time of] a year or two” as a child. The offender reported that he was forced into doing “sexual stuff” to female siblings at the age of 6 to 8 years of age by babysitters.

Mental Health Background

165. The Report by Professor Boer also provided further context as to the offender’s mental health. The offender reported that he has “been suicidal most of (his) life” and that he recalled wanting to die from as young as 4 years of age. He recalled eight different suicide attempts from the age of 15, including attempts involving hanging, overdose attempts, cutting his writs, and jumping off a balcony. The offender noted that his most recent suicide attempt occurred when arrest for his current offences was imminent.

166. The offender recalled being on antidepressants at age 15, and that he was on sertraline (an antidepressant) for about 1.5 years prior to coming into custody. The offender also took the antidepressant for 7 months in custody, after which he stopped taking the medication following a sequential dose reduction with medical support.

167. As mentioned in the PSR, the offender also reported participating in three rounds of counselling (12 sessions per round) since he has been in custody.

168. The offender reported that he began smoking “pot” with friends when he was 15 years old and used the substance continuously since then. After the offender turned 16 years, the offender reporting “getting pot from [his mother] to self-medicate”.

Diagnosis, Assessment, and Conclusions of the Report by Professor Boer

169. In preparing his report, Professor Boer reviewed the Agreed Statement of Facts, as well as the record of interview with the offender dated 20 July 2022, and two records of interview with the offender’s mother. Professor Boer also noted his review of contents 1 of the Bugmy Bar Book.

170. Professor Boer also conducted two interviews (inclusive of testing) with the offender for a total of 4 hours in January 2024 via AVL.

171. Professor Boer made observations as to the offender and his then-current psychological status, and I highlight the following concerning the offender’s attempt to understand his offending: [The offender] denied any current suicide or self-harm risk although he noted he has been “suicidal most of (his) life”… … [The offender] did not appear to try and portray himself in an overly positive or negative light and seemed eager to discuss and attempt to understand his offending behaviour.

172. As to the offender’s early exposure to trauma, Professor Boer described that the offender reported that “he experienced virtually every type of abuse as a child”. Relevant to sentencing, Professor Boer referred to the relationship between maltreatment as a child and criminal offending as an adolescent and adult: There is substantial Australian and international research that shows a consistent relationship between being maltreated as a child and criminal offending, including sexual offending, as an adolescent or as an adult.

173. On the question of whether the offender experienced disadvantage or deprivation, Professor Boer concluded:

1 The Bugmy Bar Book can be accessed here: https://bugmybarbook.org.au/ [The offender] reported a history which indicated that he experienced a high degree of disadvantage and deprivation due to childhood sexual abuse, multiple occasions of early exposure to family violence by multiple partners, early exposure to alcohol and drug abuse by his mother’s various partners (as well as getting marijuana from his mother during his mid-teens). These issues have been reviewed earlier in this report and are all considerations noted by the Bugmy Bar Book as resulting in intergenerational cycles of trauma, violence and disadvantage. Further, the Bugmy Bar Book has noted that there is a “robust body of research evidence (which) clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences. (emphasis added)

174. Professor Boer diagnosed the offender as having both cannabis use disorder and a major depressive disorder, stating: In my view, he has suffered from [major depressive disorder] since he was a teenager (14 or 15 years of age), and this disorder has continued to be present in his life at a problematic level since that time. He has been reactively suicidal under periods of stress (e.g., pre-incarceration) as already noted. (emphasis added)

175. Professor Boer was of the opinion that the offender was suffering from the above disorders at the time of the offending.

176. Unsurprisingly, Professor Boer was of the view that the offender would have benefitted from an earlier mental health intervention.

177. This evidence is relevant to the application of both the Verdins and Bugmy principles in this case, which I consider later at [236]-[272].

178. Professor Boer also concluded that both the childhood deprivation and the offender’s mental health disorders contributed to the offending. It is relevant to set out his conclusion in full: In my opinion, [the offender]’s offending was underpinned at the time by both his depression and cannabis use disorder, but not to the point of him being mentally impaired due to these mental health disorders. He noted that he was manic at times due to cannabis use, but he did not describe any psychotic features associated with his cannabis use or depression. In addition, in my opinion, [the offender’s] entire childhood was marred by ongoing experiences of disadvantage and deprivation in his childhood and youth, which the cited literature has depicted as contributory (i.e., related or correlated) factors to both adolescent and adult sexual offending. In my opinion, the extent to which these issues contributed to [the offender’s] charges is considerable, significant, contributory, but difficult to quantify. In my view, without this history, [the offender] would have grown up in a far healthier environment and likely would not have committed the offences which he admitted committing upon his family members. (emphasis added)

179. In my view, this conclusion by Professor Boer on the evidence before me is not without foundation. It is consistent, in my view, with the evidence generally before me in this case.

180. Additionally, Professor Boer assessed the offender’s risk of recidivism for sexual offending using multiple assessment tools. This included the “Sexual Violence Risk – 20” (SVR-20) tool, a tool that Professor Boer described as providing: a summary risk estimate, an estimate of risk for serious physical harm, need for immediate action (in case of imminent risk), and an appraisal of other risks that may be indicated (e.g., risk for other forms of violence, suicide, or self-harm).

181. As noted in the Report by Professor Boer, the SVR-20 tool was published initially in 1997, with a revised version (SVR-20 V2) being published in 2017. It appears that both tools were used as part of the Report by Professor Boer.

182. Additionally, the offender was assessed using the Static-99R tool, which Professor Boer noted was the most widely used actual test for assessing sexual offenders to “provide an estimate of [the offender] committing a sexual offence in the future”. The Report by Professor Boer described the test as providing a “broad “risk baseline”” for sexual offenders, in that the test does not “differentiate between individual offenders of a given risk level but provides a general risk level by virtue of shared characteristics”. These characteristics include age, number of prior convictions, convictions for non-contact offending, and “presence/ absence of a male or stranger or related victim ever”. Professor Boer noted that other factors do not enter into the Static-99R assessment, such as presence or absence of mental illness or an offender’s willingness to undertake risk-relevant treatment.

183. Professor Boer also used the “Level of Service Inventory-Revised” tool to assess the offender’s risk for general recidivism.

184. The result of the SVR-20 V2 assessment based on the information provided and self-reports from the offender indicated the following: [The offender has] a "moderate" risk for sexual offending in terms of the level of supervisory effort and intervention needed to prevent further sexual offending by [the offender]. The offender’s offending behaviour was unique in that it was focused on related victims, who he was sexually attracted to, and found himself acting in a manner contrary to his personal values. In terms of risk for serious physical harm in the future, given the offending that has occurred, there is a “low” risk that [the offender]’s risk for sexual violence would escalate into actual physical harm of a victim. As noted, there was some physical harm conducted against one of the victims in the current offences. [The offender] appears to pose a “low” risk for imminent sexual offending against another victim. His continued supervision and intervention for relapse prevention and risk management upon eventual release to the community would seem adequate to reduce any risks that remain present for sexual reoffending in this regard. (emphasis added)

185. The SVR-20 assessment also noted that the offender had a “moderate risk” of suicide given his history of actual attempts and suicidal ideation.

186. I note the following discussion of the Static-99R tool testing of the offender: The results … show that [the offender] is considered "moderate to high" risk for further sexual offending. His actual likelihood of reoffending (on the Static-99R) will decrease numerically and categorically as he ages if he remains offence-free in the community. For example, when [the offender] turns 35 years of age, his risk level will decrease by one point, and he will then be considered “low to moderate” risk for further sexual offending. … (emphasis added)

187. Importantly, as relevant to the offender’s case, Professor Boer noted the results of the SVR-20 and Static 99-R indicated “slightly” different levels of risk of future sexual offending. Professor Boer’s explained the difference as follows: To reiterate, the Static-99R provided an estimate of "moderate to high" risk. Risk levels according to this test is dependent on offence history variables including prior convictions, sentencing dates and other variables described in the above section. The SVR-20 V2 highlights a number of risk-decreasing (i.e., protective) variables that are not assessed on the Static-99R (e.g., positive attitude towards treatment) and rendered a conclusion of "moderate" risk in terms of his treatment and supervision needs, low risk for serious physical harm to others in the future, and low risk of imminent sexual offending against another victim.

188. The “protective” or risk-reducing variables Professor Boer referred to are as follows. I note that these are important matters for this Court to consider in sentencing including in relation to specific deterrence and rehabilitation: (a) The offender is aware that he needs ongoing access to mental health services to manage his MDD and suicide risk. Indeed, he had already been pursuing mental health counselling in custody. (b) The offender is “driven to gain insight regarding his offence and why he committed the offences”. Professor Boer’s opinion is that the offender has a considerable amount of remorse about his offending and that the offender has used it to spur him on to pursue sex offender treatment as soon as possible. (c) The offender’s victims are getting older, and his family is now fully aware of the offender’s “offence propensities” and “will, hopefully act more protectively in regard to persons who could be potential victims in the future”. This current decreased level of “victim access” is therefore a protective factor.

189. Ultimately, Professor Boer concluded in relation to the risk of recidivism for sexual offending to be moderate, stating the following: In my view, [the offender’s] overall level of risk for sexual reoffending is best seen as “MODERATE”. [The offender]’s “moderate to high” risk level on the Static-99R is the result of variables (his young age, not having lived with a lover for at least two years, non-contact offending, and a male related victim) that are uniquely combined in the offending situation. Future offending of this nature, is, in my opinion, unlikely to be repeated given that [the offender] is motivated to avoid such a situation in the future and the family members are well-informed and will likely reduce his access to potential victims. In my opinion, the SVR-V2’s overall estimate of “moderate” is an accurate and nuanced reflection of his unique risk issues, but it is [the offender]/s behaviour in social situations involving female family members (e.g., nieces) which will be the litmus test for his stated resolve to not reoffend in the future. (emphasis added)

190. Professor Boer also noted that, in his assessment, the offender’s risk for general recidivism is low.

Evidence of Professor Boer at the sentence hearing

191. In written submissions in February 2024, counsel for the prosecution challenged aspects of the Report by Professor Boer and foreshadowed his intention to cross-examine Professor Boer. Professor Boer was accordingly called to give evidence at the sentence hearing in February 2024 and again in May 2024. After the conclusion of the sentencing hearing of May 2024, the parties filed supplementary submissions in relation to matters arising from Professor Boer’s oral evidence before the Court.

192. The primary basis of the cross-examination by the prosecution before the Court, was related to the implications of Professor Boer’s report on the application of Verdins and Bugmy principles to the specific facts of this case, along with the offender’s prospects of rehabilitation. I will accordingly consider Professor Boer’s evidence and the parties’ submissions as to these issues when I discuss the application of the Verdins principles and Bugmy principles in this case and the offender’s prospects of rehabilitation later in judgment at [236]-[272] and [284]-[307].

Paraphilic Disorder

193. Counsel for the prosecution in written submissions questioned why Professor Boer did not diagnose the offender with any paraphilic disorder. Counsel for the prosecution noted that this lack of diagnosis is “striking” given the breadth and nature of the offending, and also noted that the PSR recorded a diagnosis of “unspecified paraphilic disorder” made by a psychiatrist at the AMC.

194. In cross-examination, Professor Boer explained that while he does not disagree with the diagnosis of unspecified paraphilic disorder, he does not find any utility for treatment in making such a diagnosis in the case of the offender. Relevantly, the professor stated that there was no utility because the professor had already scored the offender as a ‘yes’ for sexual deviance: PROFESSOR BOER: The presentence report that was recently provided to me that a psychiatrist at ACT Health diagnosed him with an unspecified paraphilic disorder and – and, well, I wouldn't necessary disagree with that diagnosis. But the purpose of diagnosis is to direct treatment and the – the unspecified paraphilic disorder doesn't do that. It doesn't – it basically is – suggests that – so if you have the DSM-5-TR available to you.... I can read the – it's only two sentences and I think it - - - HER HONOUR: Please do that, doctor? PROFESSOR BOER: Thank you, your Honour. So unspecified paraphilic disorder: This category applies for presentations in which symptoms characteristic of paraphilic disorder have caused clinically significant distress or impairment in social occupational or other important areas of functioning predominate, but do not meet the full criteria for any other disorders and the paraphilic disorders' diagnostic class. The unspecified paraphilic disorder category is used in situations in which the clinician chooses not to specify the reason that the criteria are not met for a specific paraphilic disorder and includes presentations in which there was insufficient information to make a more specific diagnosis. So I don't disagree that one could diagnose him with that. I think it – it's – it's – well, certainly – certainly, if there was an ongoing – if there was ongoing evidence of paedophilic – paedophilic disorder, I would have diagnosed him with that. I – I provide diagnoses that provide information targeted – that – that help target treatment. That – that diagnosis doesn't – isn't helpful, in my view, and so I didn't give the diagnosis.

195. Professor Boer further stated: PROSECUTOR: Now, professor, you have given evidence to say you don't disagree with that potential diagnoses but it's not one you have made yourself? PROFESSOR BOER: I just don't see the utility of it. The – I've already scored him a 'yes' for sexual deviance. If I gave him that diagnosis, he'd still get a 'yes' for sexual deviance….

196. Counsel for the offender submitted in relation to further context that the diagnosis in the PSR was made when the offender was undergoing a s 309 assessment, and that the assessment was “ad hoc one off”.

197. In supplementary written submissions, counsel for the offender submitted that the cross-examination by the prosecution of Professor Boer in no way significantly diminished the evidence by Professor Boer, and that the cross-examination in effect reinforced the Report of Professor Boer. In my view, there is quite some force to that submission on my analysis of the evidence, further discussed below. Remorse

198. The PSR noted that the offender confirmed he is aware of the offences for which he is to be sentenced. The offender stated he remembers some of the offences differently, although accepts that he has pleaded guilty to the offences as detailed in the agreed facts.

199. The PSR noted that the offender accepted responsibility for his behaviour and spoke of his regret at hurting people in his family. The offender stated it was a relief to be arrested as he knew his behaviour was “wrong” and he no longer has to hide it. The offender acknowledged he needs psychological help to address his offending, although he denied being a risk to anyone in the future. The offender noted his belief that it is necessary for him to be in custody in order to receive treatment and to allow the victims time to heal. The offender stated he has accepted he will not have contact with the victims in the future, and it is unlikely he will have any contact with a number of other family members.

200. For his part, Professor Boer expressed his expert professional opinion that the offender has accepted responsibility for his offending and that the offender is remorseful. The offender, Professor Boer noted, did not attempt to minimise his offending nor blame his offending on his mental health problems and abusive childhood.

201. The Court notes the letter of apology written by the offender, tendered as part of the offender’s tender bundle. This letter includes the following: I would like to start by apologising to the people my actions have affected. Whilst I will probably never understand the full extent my actions have impacted their lives, I know that I have, in a horrible way. I know I have done a terrible thing that people never deserve to go through, and I take full responsibility for my actions and accept whatever consequences may follow. … While I'm sure I will never understand the full extent the impact my actions have had on each individual victim, I understand my actions have impacted a much wider range of people also. My entire immediate & extended family have been impacted by my actions in multiple facets of their life, affecting their employment, mental state, social interactions and how they generally portray themselves. My actions have created a general mistrust. within my family members, and within their relationships with one another. Whilst our family unit was by no means a healthy & functional one, I understand that my actions have changed the family dynamics and relationships forever. … To [YV1], [YV2], and [Victim 3] I am sorry for what I've done. I hope that you will be able to move past the trauma I have submitted you to and go on to lead happy and fulfilling lives and to continue to grow within yourselves.

202. The offender read this letter from the dock during the February 2024 hearing. I repeat what I said at the hearing that this Court has heard his apology, and that it was important that the offender told the Court about his understanding of the consequences of his actions, consequences which he must now face.

203. Counsel for the offender correctly submitted that the offender has expressed very clear remorse on multiple occasions, citing his letter to the Court and the PSR. Counsel highlighted the above statement to the author of the PSR that the offender was glad to be caught as he knew his conduct was wrong, and his recognition that he needs to be incarcerated to receive treatment and to allow the victims time to heal. The offender, it was noted, has also repeatedly expressed his remorse to his older sister and her fiancée.

204. Further, counsel for the offender emphasized that the offender readily made admissions to the AFP.

205. Counsel for the offender also submitted that the offender recognised that his behaviour was “abhorrent and wrong”, and noted Professor Boer’s observations that the offender was remorseful for his conduct.

206. The prosecution properly agreed in written submissions that there was “cogent evidence” of the offender’s remorse before the Court. Counsel noted the admissions the offender made as at the time of his arrest, which included not only to him having committed distinct offences but also as to his broad sexual interest in various family members. The Court notes that the offender’s remorse is reinforced by the offender’s expressed intention to engage in targeted sexual behaviour rehabilitation.

207. Accordingly, significant weight should be accorded by this Court to the remorse expressed by the offender.

Reference

208. One reference was tendered in support of the offender. A signed reference under the hand of the offender’s older sister dated 30 January 2024 was tendered and includes the following: I am aware of the nature of [the offender]’s charges for which we are here today. Prior to today, [the offender] has never had any criminal record or run-ins with the law. … Whilst his size and stature could be intimidating to some, he was regularly bullied at school and home for how soft spoken and gentle his demeanour was. At home he was raised by our mother and grandmother, as well being surrounded by 2, then 3 sisters, so he was quite emotionally expressive, which we had been raised to believe at the time was a non-masculine feature. He was the only male of the immediate family, until our younger brother was born 9 years later. … .. [I]t was decided that [the offender] would need to repeat year 3 again… This was the beginning of years of bullying to come. I remember physically breaking up half a dozen fist fights, groups of boys constantly deciding to target him for any reason they chose - his weight, his intelligence, or simply because he would cry when flustered or overwhelmed, usually as one of the only ways he felt he could express himself as he was always told to try to supress his feelings…. I don’t think it helped that by this age, it had already been ingrained into him that any aggression he displayed was a sign of toxic masculinity and was quickly punished by the adults in our life at the time. … There had been an attempt to get [the offender] to see a counsellor upon our mother & grandmother finding an unfinished suicide note authored by [the offender], which also resulted in a few inconsistent periods of taking anti-depressants from age 15 to current, only being medicated for 5 out of the 10 years that have passed. … The result of the way we had to grow up as children started to shape [the offender] into being someone who is honest to a fault, and no stranger to getting himself in trouble at times by lacking a filter. He is a highly compassionate person, and it was often suggested to him that he explore a career in aged care, or rehabilitation work due to his caring nature & kind demeanour to others… [The offender] was fiercely loyal & protective over the household, often being told that as the man of the house, it was his job to protect us & watch over us all, and there was never a time growing up where he forgot about that responsibility. … The progress made prior to his arrest, acknowledging that he wanted to speak to a medical professional, was the beginning of a refreshing new outlook on life for [the offender], which he has continued whilst being detained in the AMC. In all my years of knowing [the offender], I have never seen him more clear-minded and determined to better himself. He has demonstrated this by keeping the responsibilities assigned to him to the highest standard, having held the several trusted positions within the yard, as well as continuing to work on all aspects of himself with counsellors within the AMC whenever available. Once sentenced, he eagerly awaits the variety of courses that will become available to him. I believe [the offender]’s experiences in the last 18 months since his arrest have been, in no loose terms, one of the most severe reality checks and wake up calls one can experience in their time on this earth. He does not feel he is beyond help or a lost cause… Whilst we [the offender’s sister and her partner] support [the offender], we also make it clear to him that in no way, shape, or form are the actions he has committed acceptable or tolerable by any means. We deplore what he has done, and the scars of his actions will be visible on himself, his victims and this family for life and he knows that. (emphasis added)

209. I take this reference into account on sentence.

Criminal History

210. The offender had no criminal record prior to the offences I am sentencing him for today.

Pleas of guilty

211. As noted in the prosecution tender bundle, the offender pleaded guilty to the offending on 11 September 2023, at a mention in the ACT Magistrates Court. The offender was first charged on 21 July 2022, and initially pleaded not guilty to the charges on 27 February 2023. The agreed facts noted that the guilty pleas were finally entered on 11 September 2023 after negotiations.

212. As noted by counsel for the offender, pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.

213. Counsel for the offender submitted that a discount of 25% is appropriate in light of the offender’s early plea. Counsel noted that the pleas had significant utilitarian value: Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99; Toumo’ua. Counsel highlighted that the pleas of guilty saved the victims from giving evidence at a trial.

214. Counsel for the prosecution agreed in written submissions that the offender is entitled to discounts that reflect the utilitarian benefit of his plea and did not cavil with the 25% discount submitted by the offender in all of the circumstances.

215. Taking into account the relevant law as discussed above, in my view, a discount of approximately 25% is appropriate.

Time in custody

216. The offender has spent 2 years and 7 days in custody from 20 July 2022 to the date of sentence (26 July 2024). This time in prison is solely referable to these offences. Accordingly, it is appropriate for the offender’s sentence to be backdated.

Comparable cases

217. I note that, as the High Court has stated in DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]: [C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.

218. In this case, both parties noted difficulty in locating comparable cases. Indeed, at the February 2024 hearing, counsel for the prosecution conceded that the cases he submitted are likely only of some limited assistance to the Court.

219. Cases from this jurisdiction and beyond may assist by providing a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [53]-[54].

220. Attached as an annexure to this judgment is a summary of cases referred to by the prosecution and counsel for the offender.

221. It is relevant to refer to the submissions made by counsel for the offender regarding the prosecution’s cases. Counsel for the offender submitted that none of the cases referred to by the prosecution were of any particular assistance as the facts differed significantly as follows: (a) The offender in DPP v van de Zandt (No 3) [2023] ACTSC 359 was an uncle, and as such there were “more a trust relationship” than in a sibling relationship. Counsel also highlighted the lack of remorse and the fact that the matter went to trial. (b) The offender in R v XT [2016] ACTSC 335 was an uncle who had prior convictions for sexual offences. (c) The offender in R v WR (No 4) [2015] ACTSC 211 was a stepfather and therefore in “more of a trust relationship”. The offender in that case did not accept responsibility. (d) R v CC [2016] ACTSC 43 (CC) involved offending by a stepfather over a period of months. (e) R v Aitchison (No 3) [2018] ACTSC 214 involved a deacon of the Anglican church, who offended in circumstances different to the offending in this case.

222. I was also referred to cases by counsel for the offender at the February 2024 hearing and the May 2024 hearing. Counsel for the offender submitted that the February cases were at the lower end of utility as the cases were significantly factually different but may assist the Court in terms of outcomes. The other cases were apparently primarily referred to for the purpose of the discussion of objective seriousness.

223. Counsel for the prosecution also noted that cases referred to by counsel for the offender, DPP (Vic) v Pagani (a pseudonym) [2022] VCC 2013 and DPP (Vic) v Dunlea (a pseudonym) [2017] VCC 1106, are distinguishable from the offender’s case in so far as the cases involved offending committed by an offender who was young, but who did not proceed to reoffend as an adult. Counsel for the offender properly submitted that the offender’s case involved sentencing for “discrete events” that occurred from the time of the offender being a young offender to his adulthood but noted that the cases may remain of assistance despite these factual differences.

224. I will take into account the would-be comparable cases to the extent possible considering the differences that perforce must exist in every individual case that comes before the Court.

Youth and rehabilitation

225. The offender was a young offender at the time of committing some of the offences. Namely, the offender was a young person in relation to the first act of indecency against YV1 (CH2023/332) and the entirety of the offending against YV2 (CH2022/868, CH2023/334, CH2023/912, CH2023/337, CH2023/336).

226. In sentencing a young offender, the relevant legislation includes the Sentencing Act, particularly ch 8A, the Children and Young People Act 2008 (ACT) (CYPA) and the Human Rights Act 2004 (ACT) (HRA).

227. Relevant sections of the Sentencing Act include: 133C Young offenders – purposes of sentencing (1) Despite section 7(2), in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in section 7(1). (2) Also, in sentencing a young offender, a court must have particular regard to the common law principle of individualised justice. 133D Young offenders – sentencing – additional relevant considerations (1) In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters: (a) the young offender’s culpability for the offence having regard to his or her maturity; (b) the young offender’s state of development; (c) the past and present family circumstances of the young offender. (2) This section applies in addition to section 33 (Sentencing – relevant consideration). … 133G Young offenders – sentences of imprisonment (1) This section applies if a court is sentencing a young offender to imprisonment under section 10. (2) The sentence of imprisonment must be a last resort and for the shortest appropriate term. (3) The court must consider making a combination sentence consisting of – (a) the sentence of imprisonment; and (b) a good behaviour order with a supervision condition. (4) The court must not sentence the young offender to imprisonment for life.

228. Section 94 of the CYPA is also relevant and provides the following in relation to youth justice principles: 94 Youth justice principles (1) For the criminal matters chapters, in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that is relevant (the youth justice principles): (a) if a child or young person does something that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable; (b) a child or young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways; (c) a child or young person should be consulted about, and be given the opportunity to take part in making, decisions that affect the child or young person, to the maximum extent possible taking into consideration their age, maturity and developmental capacity; (d) if practicable and appropriate, decisions about an Aboriginal or Torres Strait Islander child or young person should be made in a way that involves their community; (e) if a child or young person is charged with an offence, he or she should have prompt access to legal assistance, and any legal proceeding relating to the offence should begin as soon as possible; (f) a child or young person may only be detained in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the minimum time necessary; (g) children, young people and other young offenders should be dealt with in the criminal law system in in a way consistent with their age, maturity and developmental capacity and have at least the same rights and protection before the law as would adults in similar circumstances; (h) on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community; (i) it is a high priority that intervention with young offenders must promote their rehabilitation, and must be balanced with the rights of any victim of the young offender’s offence and the interests of the community. (2) The decision-maker may also consider any other relevant matter. (3) The youth justice principles are intended to be interpreted consistently with relevant human rights instruments and jurisprudence. (4) A reference in subsection (1) to a child or young person includes a reference to a person who is at least 18 years old but is being dealt with in relation to an offence committed, or allege to have been committed, when he or she was under 18 years old.

229. Relevantly, s 22 of the HRA provides: 22 Rights in criminal proceedings … (3) A child who is charged with a criminal offence has the right to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation.

230. In submissions, counsel for the offender highlighted ss 133C, 133D and 133G of the Sentencing Act.

231. At the hearing, counsel for the offender submitted the offender’s difficult childhood had shaped and influenced his actions, including his experience of sexual and physical abuse, bullying, exposure to cannabis, and the lack of emotional and mental health support available to the offender growing up. Counsel also highlighted the lack of psychological assistance when the offender’s incestuous sexual interest became known to his mother and grandmother. This family background, it was submitted, is particularly relevant in sentencing the offender for the offences committed as a young offender. I agree that this is relevant. It was certainly a disturbed childhood; consistent with all the evidence before me.

232. Counsel for the offender correctly referred to ch 8A of the Sentencing Act. The Court must consider the offender’s culpability having regard to his maturity: see Sentencing Act s 133D(1)(a). Counsel submitted that the offender’s culpability was reduced by the fact that the offender’s “sexual predilections” were not addressed despite being known to his mother from when the offender was 11 years old.

233. Counsel for the prosecution correctly, properly and inevitably accepted the relevance of ch 8A of the Sentencing Act to the offender, in particular ss 133C, 133D and 133G.

234. I also note the common law principles relevant to the sentencing of young offenders. These principles are helpfully summarised by McClellan CJ at CL in KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[23] and adopted in this jurisdiction in R v BM (Supreme Court (ACT), Refshauge J, 29 October 2012, unrep).

235. Accordingly, I take these principles and the legislation into account in relation to the offences committed by the offender as a young person. Application of Bugmy principles

236. A history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 [41]-[44] (Bugmy). What is clear from Bugmy, and subsequent case law, includes the following: (a) the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44]; (b) the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [43]-[44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and (c) the application of the Bugmy principles “is not discretionary”: Irwin at [3].

237. There is no doubt on the evidence before me, particularly the Report by Professor Boer, that the offender has experienced significant childhood disadvantage. It is also not contested that the offender’s circumstances engage the Bugmy principles. It is appropriate that I take this into account on sentence, in the manner set out in Bugmy.

238. At the May 2024 hearing, counsel for the prosecution submitted that the application of Bugmy in this specific case may “cut both ways” in so far it may also call for a greater emphasis on specific deterrence in the sense of community protection. The prosecution further submitted that because the members of the community at greatest risk (the offender’s family) comes from a “limited pool” from the community does not mean community protection ceased to be relevant.

239. In my view, it is clear from the evidence in this case in particular the evidence of Professor Boer that the application of the Bugmy principles overlap to a significant extent in this case with the application of the Verdins principles. I will discuss the application of the Verdins principles under the next heading: see also R v BS-X [2021] ACTSC 160; 16 ACTLR 238 at [94]; Jackson v The King [2023] NSWCCA 121 at [53] (Jackson); DPP v Muell [2024] ACTSC 184 at [138] (Muell)

Application of the Verdins principles

240. In R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins), the Victorian Court of Appeal identified six ways in which impaired mental functioning may be relevant for sentencing (at [32]): Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentence in at least the following six ways: 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both [citing Payne v The Queen [2002] WASCA 186; 131 A Crim R 432 at [43]]. 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment. (emphasis added)

241. In R v Engert (1995) 84 A Crim R 67 (Engert), Gleeson CJ observed at 68 (also referred to in Bugmy at [45]): A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender. (emphasis added)

242. As discussed above, the Report by Professor Boer referred to certain matters that must properly be considered in the application of Verdins in this case: (a) The offender meets the DSM-5-TR criteria for cannabis use disorder, in sustained remission in a controlled environment. Importantly, the offender also meets the DSM-5-TR criteria diagnosis of major depressive disorder, severe, with recurrent episodes and anxious distress. (b) The offender was suffering from these disorders at the time of the offending. (c) The offender’s disorder “underpins” the offending in the opinion of Dr Boer.

243. Counsel for the offender submitted that this Court could take into account the offender’s mental health conditions in the following ways: (a) The offender’s cannabis use disorder can be seen as a contributing factor to the offending, and his moral culpability may be lessened due to his exposure to cannabis in the family home from a young age. (b) The offender’s mental health conditions could warrant a reduction in the significance of general deterrence in this specific case. Counsel also highlighted the contributing role played by the lack of parental assistance and guidance the offender had in dealing with his mental health conditions concerning the offending. (c) The significance of specific deterrence may also be reduced given the offender’s history, mental health issues and prospects of rehabilitation. (d) As noted by Professor Boer, the offender would experience greater hardship from imprisonment on account of his mental health issues and history of reactive suicide attempts than someone without this “mental health fragility”.

244. Contrastingly, counsel for the prosecution made the following submissions in relation to the Report by Professor Boer.

245. First, it was submitted that it is unclear on what basis Professor Boer concluded that “all of the offending was “underpinned” by cannabis use disorder and/or major depressive disorder”.

246. Counsel for the prosecution submitted that given the offender’s admitted sexual interest in his family members, it is unclear how the offending can be said to be “underpinned” by his mental health disorders. In this vein the prosecution submitted the following: (a) The Report by Professor Boer did not outline which diagnostic criteria was met for the each of the DSM-5 diagnoses. (b) It was unclear how Professor Boer concluded that the offender “likely would not have committed the offences” but for his disorder and childhood deprivation if, as noted in the Report by Professor Boer, it is difficult to quantify the impact of these factors despite them having “considerable, contributory and significant” impact. (c) In light of the offender’s current circumstances in custody, counsel queried the opinion expressed in the Report by Professor Boer that the offender “would very likely experience greater hardship than someone without his mental health issues” if he is sentenced to full-time imprisonment.

247. In further written submissions subsequent to the completion of Professor Boer’s oral evidence, counsel for the prosecution returned to the above submissions concerning the application of the Verdins principles to the offender. The prosecution referred to the uncontroversial proposition that the application of Verdins principles requires consideration of the facts of each case, and does not obviate instinctive synthesis: R v Dupuy [2008] VSCA 63 at [34] (Ashley JA, Buchanan JA and Forrest AJA agreeing). So much is obvious in sentencing.

248. I must consider the question of the reduction of moral culpability, and specific and general deterrence in relation to the application of Verdins.

249. I note in this regard the following discussion at line 440-445 of the Report by Professor Boer: [The offender]’s offending behaviour occurred in a unique environmental context (being in the same dwelling during some of the offending with the victims) due to being related to the victims. The offending was, in my opinion, of greater psychological complexity than sexual deviancy alone, involving a number of elements, including [the offender’s] chronic depression, his ongoing cannabis use, his sexual attraction to the victims, and the sexual reinforcement obtained from the “incest porn” imagery that he used for sexual arousal purposes. (emphasis added)

250. Earlier in his Report, Professor Boer also made the following observation when conducting an assessment of the offender using the SVR-20 tool: During our second interview, he admitted to sexual interest in family members … and that the offences which occurred when he was older were driven, in part, by sexual attraction to the victims and sexual arousal to “incest porn”.

251. I note that at the sentencing hearing, Professor Boer was cross-examined by counsel for the prosecution on the offender’s consumption of incest-themed pornography. By way of summary, Professor Boer gave the following evidence: (a) Professor Boer asked the offender about his sexual interest in the second interview. He also noted that he would usually explore the type of pornography the offender would be viewing in treatment, not in pre-sentence assessment. Professor Boer also noted that interrogating incestuous pornography in further detail would be really important for treatment. (b) The offender had an exclusive, intense and persistent incestual sexual interest. (c) Professor Boer did not have the opportunity to clarify when the offender started to watch pornography of an incestuous or incest-themed nature given the difficulty with setting the AVL for a third interview. (d) The offender reported that he would look at incest-themed porn “of all types”, but Professor Boer did not ask the offender further regarding ages. (e) Professor Boer was also unable to clarify whether the offender’s usage increased or decreased over time. (f) Professor Boer disagreed that he would need to have a “fairly good understanding of the volume and nature” of the pornography viewed by the offender to discuss the causative factor of the offender’s viewing of pornography. In his opinion, the consumption of inappropriate pornography itself is “a kind of corelative or supportive behaviour” that supported the offending. (g) Professor Boer agreed that, in terms of being a causative factor, the degree by which a person consumes pornography is relevant. Having said that, Professor Boer noted that the offender reported consistent or regular consumption of incest pornography.

252. Further, on the viewing of incest pornography, counsel for the prosecution highlighted the following exchange: PROSECUTOR: So just so I can perhaps understand it, Professor Boer, in terms of the use of incestuous pornography by the offender, can you just clarify with respect to particularly the paragraphs that I have referred you to including those commencing at line 440, what role, if any, did that play in the offending? PROFESSOR BOER: Many offenders, many sexual offenders use pornography similar to that, you know, to sort of fuel the fire, if you will. It keeps the fire going. And so[,] when they’re not offending, they’re looking at pornography that is related to their offending. So[,] it serves a purpose of reinforcing that kind of offending. PROSECUTOR: Okay. But you don’t say it’s causative for the offending? PROFESSOR BOER: I’d say it’s supportive of the offending but not causative.

253. Counsel for the prosecution also noted that the offender has, as noted by Professor Boer, a “highly complex pathway of offending” and this included a deviant sexual interest on his own family members. Counsel for the prosecution submitted that this interest drives the offending, and that the “predominant factor” in the offending is the offender’s “intense and persistent” sexual interest in his family members, male or female and of all ages. The prosecution therefore submitted that the sexual interest is not causally connected to the offender’s mental health diagnoses. Further, counsel for the prosecution also noted that Professor Boer accepted in cross-examination that while the offender’s mental health diagnoses were significant, they were not more significant that his “pervasive sexual deviancy”.

254. In the Court’s consideration of the prosecution’s submissions in this regard, I note that in cross-examination Professor Boer gave the following evidence which I accept on the basis of Professor Boer’s expertise in relation to the linkage between the offender’s mental health diagnoses and the offending: (a) The offender’s cannabis use disorder and major depressive disorder makes the offending “of greater psychological complexity” than mere sexual deviancy. (b) Professor Boer confirmed that the offender would have had onset of symptoms for both disorders when he was aged around 15 years. (c) The fact that the offender was already committing sexual acts against YV1 and YV2 prior to him turning 15 did not “alter his opinion” that the offending is of greater psychological complexity than mere deviancy. Indeed, Professor Boer noted his expert professional view that “it’s all part of the same opinion. This is a highly complex pathway of offending that only gotten more complex” as other variables entered the picture. (d) In Professor Boer’s opinion, the offender turned to sex as a coping strategy for his depression. (e) Professor Boer agreed that cannabis use disorder and major depressive disorder were not conditions that would inherently lead to sexual offending.

255. Counsel for the prosecution noted concerning moral culpability the offender’s admissions to the police on 20 July 2022 that it was wrong to possess the naked images of his family members, and his acknowledgment that he spoke to YV1 days after the offending in 2021 that him “agreeing to pay [YV1] in order to have sex … should not have happened” and that he felt bad. This evidence, of course, cannot conclude the issue of the application of Bugmy or Verdins.

256. Accordingly, the prosecution submitted that any reduction on moral culpability and specific and general deterrence on the operation of Verdins would be only “slight”. I disagree. I will conclude concerning the application of Bugmy or Verdins principles at [269]-[272].

Hardship in custody

257. Specifically only on the question of whether the offender would likely suffer greater hardship in a custodial environment due to his mental health diagnoses, I am not persuaded on the evidence before me. There is not an adequate evidential basis for the conclusion of greater custodial hardship.

258. There are observations in the Report by Professor Boer that the offender’s current state of mind is that the offender is “glad to be in prison being punished for what [he]’s done”.

259. Relevantly, I also note the following evidence involved some conceded level of speculation: PROSECUTOR: Do you still think that [the offender] is someone who would experience greater hardship because of those mental health needs, specifically? PROFESSOR BOER: Well, he's in a funny transition period, isn't he? So he's in a – he's in a unit, when I spoke to him, full of guys who've committed sexual offences. There's a real mix of attitudes and levels of responsibility taken for offences in that unit from his own discussions. So some guys feel regret, some guys are openly - and openly taking responsibility and want to change, and other guys are victim-blaming. And so it's – it's – you know, depending on the sentence or what happens, attitudes towards him could shift. PROSECUTOR: Yes? PROFESSOR BOER: And I think he's quite reactive. He – well, I don't think, I know, he's quite reactive to changes in attitude around – from those around him. So he could become victimised, in a way, by the guys on the unit. So if he gets a really long sentence, 'Looks like you're a real so-and-so,' you know, even though you take responsibility that the – that the sledging could become quite psychologically negative. …. Guys with trauma histories find group programs difficult to take. I honestly don't know how he's going to react psychologically, and maybe become reactively suicidal again because of that very history and those potential interactions. That’s why I wrote what I wrote. PROSECUTOR: And those potential interactions, it is entirely speculative, would you agree? PROFESSOR BOER: Well, yes. PROSECUTOR: Yes. And in the 18 months, or in excess of 18 months up to now, has there been interactions of that type that he's reported to you …? PROFESSOR BOER: Well, he hasn't been in the sex offender program and he's awaiting sentence. So there's a lot of unknowns. PROSECUTOR: But he has been in the custodial environment…? PROFESSOR BOER: Yes. PROSECUTOR: …for that period of time? PROFESSOR BOER: Yes. PROSECUTOR: And has he reported anything of the type that you are describing? PROFESSOR BOER: No. Bugmy / Verdins overlap

260. Leaving aside the question of custodial hardship and going more generally to the broader questions, I again note that there is a significant overlap in relation to the question of the application of the Bugmy and Verdins principles.

261. Counsel for the offender noted that the relation between the offender’s cannabis use disorder and major depressive disorder is complex. Referring to the evidence of Professor Boer at the hearing, counsel noted Professor Boer’s opinion that the offending arose from a “highly complex” pathway and only became more complex as other variables entered the picture. I accept this expert opinion of Professor Boer on the basis of his qualifications and professional experience and the evidence before me.

262. Further, I note the following relevant evidence concerning offender’s mental impairments and his sexual deviancy: PROSECUTOR: In terms of your opinion that the offending was underpinned at the time by both his depression and cannabis use disorder but not to the point of him being mentally impaired…, is that overstating the impact of those diagnoses on the [offender]? PROFESSOR BOER: I don't think so. I mean, it's asking - the question that's being asked -the extent to which you believe in any such condition or disorder diagnosed in accordance with one or the disadvantage or deprivation that's contributing to the conduct. It's not asking about the deviance, it's asking about the diagnoses. So that's - the answer is then related to - in relation to the diagnoses, not to any deviance because it's actually not being asked there at all. PROSECUTOR: No but you're saying that the offending - putting aside the deviance - you're saying the offending was underpinned by both of those. Now, underpinned, you know I would read as saying that that is obviously significant. Is that how you were meaning to articulate it there or not? PROFESSOR BOER: Yes, I believe it is significant. PROSECUTOR: More significant than his pervasive sexual deviancy? PROFESSOR BOER: I do not believe that would be the case, no. PROSECUTOR: So, pervasive sexual deviancy really is the predominant factor as opposed to the diagnoses? PROFESSOR BOER: I don't believe - I don't believe that being - having sexual deviance issues alone necessarily is - it's like any recipe. You need certain amounts of everything for things to turn out. In this case, his offending I think was driven by deviance but also happened when he was particularly depressed and using cannabis. So, they went together. So, it's hard to pull them apart because it wasn't happening separately. … PROSECUTOR: Now, ultimately in terms of that very broad proposition [referring to the conclusion produced at [178] of these remarks], I mean that has to be significantly qualified in terms of effectively holding a crystal ball and removing various factors to therefore conclude it was likely that none of this would have happened; would you agree? PROFESSOR BOER: Well, there's no crystal ball needed here because [the offender] did these offences, he admitted to doing these offences under those conditions with that history. And if you pull out his own abuse or if you pulled out sexual - use of incest and having an interest in sexual attraction to family members, I think you can safely say that it's very unlikely that he would have done any incestuous behaviour. So I think these things happened under certain mental health conditions and it - so it essentially is a combined effect of all these factors that happened in the offences each time and I - so that's - that's my opinion. In my view, that's why - he would not have committed those offences without those issues contributing to his risk at the time of the offending. (emphasis added)

263. Further, counsel for the offender correctly noted that, contrary to the prosecution’s written submissions, it is not the case that the offender’s mental health disorder only materialised when the offender was 15. Counsel referred to the evidence of Professor Boer at the February 2024 hearing, who opined that while diagnoses were “responsibly made” at the age of 14-15 years old, the offender in his view was already experiencing depressive symptoms since he was 4 years old. It is relevant to extract what Professor Boer stated in relation to the issue in cross-examination: PROSECUTOR: [R]eally what I'm seeking, Professor Boer, to ask here is how causative could cannabis disorder and major depressive disorder be in terms of the offending given that prior to the offending and prior to those diagnoses arising he was already committing sexual acts with family members? Do you understand that question? PROFESSOR BOER: I understand the question … what I understood from [the offender] in the interview was he … could recall from the age of 14 or 15 that he had certain symptoms so … I think that… I'd be surprised if there weren't symptoms before 14 and certainly the report of feeling suicidal since he was four suggests he was having depressed - symptoms of depression well before 14 so I think it's difficult to - so once you're convinced there's a diagnosis and you've got enough evidence to say for sure at this age there – he would have met these diagnoses. I … couldn't say for sure that he didn't meet them before.

264. Importantly in regard to the diagnosis, Professor Boer conceded that while he has no information to confirm that the offender had met the diagnostic criteria earlier, the offender definitely met the diagnostic criteria by the time he was 14-15 years old. Thus, Professor Boer’s evidence was that the earliest possible definite diagnoses for both disorders was when the offender was 14-15 years old. Professor Boer gave evidence that this does not mean that the offender was without symptoms or was not depressed prior to this. Indeed, Professor Boer noted that in his view the offender’s symptoms of depression have been in his life for a long time and were tied to the offender’s offending throughout his “offending career”.

265. There was also the following relevant exchange as highlighted by counsel for the offender in further written submissions: PROSECUTOR: So Professor Boer, just in terms of the last questions and answers we exploring … just in terms of the earlier questions I asked you and your evidence about when those diagnoses that form part of that broad opinion arise and the fact that they arise after he 15 is already committing sexual acts with family members, just in terms of those diagnoses' impact on that broad opinion, it has to be qualified; yes?— PROFESSOR BOER: I believe that my prior explanation is from [the offender]’s self-report. It was clear that those diagnoses were responsibly made at that age of 14 or 15. It doesn't mean – it certainly would not mean that symptoms were not present prior. I believe that symptoms had been prior. And children have limited insight into their own depression, and feeling that anxiety and being able to deal with being a victim, and … I think he was experiencing symptoms since he was four. Did I have time to explore all that in our limited interviews? No, but I think eventually conflating a definitive diagnosis was … that's when the disorder appeared and that's simply not the case. (emphasis added)

266. Having reviewed the evidence, I disagree with the prosecution submission that there is no significant role for the application of the Verdins principles concerning moral culpability and deterrence.

267. Nevertheless, as repeated consistently in this judgment at [239] and [260] and should be restated at this point the application of the Bugmy and Verdins principles overlap. Additionally, the countervailing issue of community protection and specific deterrence is also relevant to the application of both the Bugmy and Verdins principles.

268. In conclusion it must be stated that dealing with the application of the overlapping Bugmy and Verdins principles in the context of the evidence in this case does constitute something of a Gordian Knot. There are both overlapping principles to be applied, and there are also countervailing matters in relation to specific deterrence to be considered, alongside the offender’s prospects of rehabilitation.

269. I am persuaded on the evidence before me, on the balance of probabilities, that the offender has experienced significant childhood disadvantage and it is appropriate in accordance with Bugmy that I take this into account on sentence. I am also similarly persuaded on the basis of Professor Boer’s evidence that it is appropriate that I take into account the mental conditions of the offender in accordance with the principles outlined in Verdins. I note that I must not double count these overlapping matters in relation to the reduction that is appropriate concerning moral culpability and general deterrence.

270. Additionally, in respect of the application of the overlapping Bugmy and Verdins principles in this case there are countervailing issues of specific deterrence and the protection of the community (that is the sentencing principle of protection of the community as opposed to preventative detention): see Veen v The Queen (No 2) (1988) 164 CLR 465 at 472-3; Bugmy at [44]; Engert at 68, 71; Jackson at [46]; Muell at [198]-[199]; R v March [2023] ACTSC 28 at [126]; DPP v Matas [2024] ACTSC 234 at [280].

271. Nevertheless, in this case the countervailing factors do not, of themselves, lead to the relevant mitigating matters having no effect. On the facts of this case, taking into account the prospects for rehabilitation in assessing specific deterrence, the Bugmy and Verdins factors are nevertheless relevant and not deprived of some substance in sentencing weight: see Jackson at [46], [56].

272. I will therefore accord appropriate weight taking into account all the matters discussed above in the application of the Bugmy and Verdins principles.

Statutory and other relevant considerations

273. Sentencing for Territory offences is determined in accordance with Sentencing Act.

274. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.

275. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.

276. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31].

277. Section 34A(a) requires the Court to sentence the offender in accordance with sentencing practice at the time of sentencing. I note that this is not a case where s 34A(b) concerning good character applies: 34A Sentencing—sexual offences against children For a sexual offence against a child, a court— (a) must sentence the offender in accordance with sentencing practice, including sentencing patterns, at the time of sentencing; and (b) must not reduce the severity of a sentence it would otherwise have imposed on an offender because the offender has good character, to the extent that the offender’s good character enabled the offender to commit the offence. Examples—par (b) 1. The offender’s good character was one reason the offender was selected to supervise children on a camp. The offender began to establish a relationship with children at the camp to obtain their compliance in acts of a sexual nature. 2. A child’s parents trusted the offender to care for the child because of the offender’s authority in their community. The offender held authority in the community in part because of the offender’s good character. The offender sexually abused the child including while the child was in the offender’s care. … (emphasis added)

278. Importantly, in R v TW [2011] ACTCA 25; 6 ACTLR 18 Refshauge J (Lander J agreeing) noted that the community looks to the courts to deal with such offences in such a way as to provide deterrence (at [21]): Those offences [offences involving children, whether related or not to the offender] are ones which the courts view very seriously. As Maxwell J said in Fisher v The Queen (1989) 40 A Crim R 442 (at 446): …the community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities.

279. I further note the following observations by Burns J are apposite in relation to sentencing for offences involving children and particularly incest in CC at [40], [42]: 40. Such offences are also apt to cause grave and long-lasting psychological damage. As such, these offences cause great harm, not only to the particular victim but also to our community and its social institutions and values. … 42. The community looks to its courts to assist in the protection of children and community institutions and values by passing sentences that reflect the community’s disapprobation and that deter offenders or would be offenders from similar offending. Rehabilitation of offenders is always a relevant sentencing consideration but in offences of this type punishment and deterrence generally have greater weight. (emphasis added)

280. In R v BI (No 4) [2017] ACTSC 71, Refshauge J observed that such offences cause long-term serious harm to victims: 1. While it is often said that the community speaks with one voice as to its abhorrence of sexual offences, such offences committed against children are regarded even more seriously. They steal from the young their innocence, prey on the vulnerable, and usually cause long-term seriously impairing disabilities to the victim. Similar observations were also made in R v WEF [1998] 2 VR 385 at 387.

281. Counsel for the prosecution also submitted that s 34B of the Sentencing Act is engaged in this sentencing exercise given the familial relationship between the offender and his victims. That section requires the Court to have regard to certain matters in sentencing the offender: 34B Sentencing—family violence offences (1) In deciding how an offender should be sentenced for a family violence offence, a court must consider the nature of family violence and the context of the offending, including the following: (a) the matters mentioned in the preamble to the Family Violence Act 2016; (b) whether the offending occurred at the home of the victim, offender or another person; (c) whether the offending occurred when a child was present; (d) if the offence is a serious family violence offence—whether the offender has 1 or more other convictions for serious family violence offences.

(2) A court must not reduce the severity of a sentence it would otherwise have imposed because— (a) the offence is a family violence offence; or (b) a family violence order under the Family Violence Act 2016 or a protection order under the Domestic Violence and Protection Orders Act 2008 (repealed) is in force against the offender in relation to the family violence offence. (3) In this section: family violence—see the Family Violence Act 2016, dictionary. serious family violence offence means a family violence offence that is punishable by imprisonment for 5 years or more.’

282. I note that the preamble in the Family Violence Act 2016 (ACT) (FV Act) sets out a number of matters (FV Act Preamble para 1): (a) family violence is unacceptable in any form. (b) freedom from family violence is a human right. (c) the justice system should respect and protect all human rights in accordance with the HRA and international law. (d) family violence is best addressed through a coordinated legal and social response of assistance to victims and the prevention of violence by such things as promoting the accountability of perpetrators of family violence and the appropriate intervention by the police and the courts.

283. As I noted in R v Smith (No 2) [2022] ACTSC 246 (at [107]) in connection with s 34B, courts have recognised in case law over time the matters consistent with the legislation.

Rehabilitation

284. The most durable guarantee of community safety and I interpolate family safety is the rehabilitation of offenders: see Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32] (French CJ).

285. As highlighted by the prosecution, the PSR noted that an actuarial tool has assessed the offender as having an above average risk of sexual reoffending. As such, the offender would be suitable for a high level of supervision with ACT Corrective Services.

286. As noted above at [189]-[190], Professor Boer assessed the offender’s risk of sexual offending as “moderate” and general reoffending as “low”.

287. On sexual offending, Professor Boer noted in his report that the results of the SVR-20 testing is to be preferred over the result yielded by the Static-99R tool. In his opinion, the “moderate to high” risk yielded by Static 99-R tool was “the result of variables (his young age, not having lived with a lover for at least two years, non-contact offending, and a male related victim) that are uniquely combined in the situation”. Professor Boer also noted that the Static-99R tool also does not assess for a number of risk-decreasing or protective variables that are assessed in the SVR-20 V2 (eg. attitude towards treatment). As such, Professor Boer ultimately characterised the SVR-20 V2 assessment of “moderate” risk as a more accurate and nuanced reflection of the offender’s “unique risk issues”.

288. Relevantly, Professor Boer further noted in his Report the following concerning prospects of rehabilitation for the offender: [The offender] indicated that he “wants treatment”, and would like to take “all programs that are available, including trauma counselling, sex offender treatment, and general psychological treatment to help him process his emotions. [The offender] added that he would preferably take the ACT Corrective Services adult sex offender program … or take such a program on an individual basis if waiting for the former program negatively affects his release eligibility.

289. Importantly, Professor Boer in his concluding remarks noted the offender is highly motivated to rehabilitate himself: [The offender] appears to be highly motivated to change his lifestyle and live a more positive, prosocial, life upon release from custody at the current time… He seemed insightful regarding his treatment needs and understands that there is a complex relationship between his mental health issues, his complex childhood history of abuse (resulting in disadvantage and deprivation), and his offending behaviour. At the present time, he is highly motivated for treatment, and it is my hope that the Court will help facilitate his recovery via a sentence particularly focused on rehabilitation.

290. It is noted in the Report by Professor Boer that upon his release, the offender stated that he will also look into further counselling from a psychologist, such as maintenance therapy regarding sex offending.

291. Counsel for the prosecution submitted that the offender’s prospect of rehabilitation should be seen as only guarded.

292. Counsel for the prosecution in written submissions also noted the Report by Professor Boer finding set out above at [188] that one of the “protective” factors in the offender’s case was the offender’s family limiting access to any potential further victims. Counsel referred to the offender’s stated desire to live with his elder sister after his release.

293. On this issue, I note the following exchange in cross-examination in the first sentence hearing: PROSECUTOR: [Y]ou have referred in your report for example, at line 450: Future offending of this nature is, in my opinion, unlikely to be repeated given [the offender] is motivated to avoid such situations in the future and family members are well-informed, PROSECUTOR: So effectively, to one extent, putting the responsibility on family members to take precautions. Would you agree with that? … PROFESSOR BOER: Well, I think … the family members are well-informed now. The letter from his sisters clearly supports her and it doesn't discuss the past abuse by babysitters that they both experienced, but it seems that [the offender] sister has become a well-informed support person, and … I think … he has virtually no access to other family members. … [W]hat is your inference, sir? PROSECUTOR: Well, in circumstances where you have predicated his risk of reoffending being lowered because family members were aware…of his previous predilections, given the way that the offending has occurred, for example surreptitiously filming people … [awareness] doesn't necessarily protect … from being offended against. Would you agree with that? PROFESSOR BOER: … [T[hese past offending behaviours… are problematic but they're also offending behaviours that his sister's aware of, and … she's willing to support him despite these past behaviours. She's a well-informed support person so I think that it's …. something that … maybe that's the best available to him and she's willing to be, I'm sure, a well-informed and cautious person in taking [the offender] into her home.

294. At the May 2024 sentence hearing, Professor Boer was further cross-examined by the prosecution on the risk posed by the offender living with his elder sister upon release. Professor Boer noted that while there is a “trade-off” between “potential offence situations” and everyone in the offender’s family being aware of his offence propensities, ultimately Professor Boer was of the opinion that living with the offender’s sister was “safer in some ways” than him living alone.

295. Professor Boer noted that there were some promising indications in his interviews with the offender that the offender no longer held incestuous interest in his family members. This included the offender’s relief that he had been “stopped by the police” and that his offending could be addressed, and his admissions to the police. The offender also expressed what Professor Boer termed “uncommon” display of interest in the sex offender program. In Professor Boer’s view: So I think there's a lot of positive indications of change and I think the sister that he wants to live with is a stable feature of his life and there may have been some attraction to her in the past, but she has become a stable protective factor in my view.

296. Nevertheless, Professor Boer conceded that the offender has not stated to him “verbatim” that he is no longer sexually attracted to family members. Professor Boer also agreed with the prosecution’s suggestion that there is an open question on whether the offender remains sexually attracted to his family members, noting that lack of interest and insight to one’s behaviour does not mean there is “absolutely… no potential for sexual arousal to family members”.

297. Professor Boer further extrapolated on the nature of the offender’s sexual interest and how it may be addressed through therapy: …[S]exual attraction isn't a cognitive process… [I]t has physiological roots and so if he's doing everything he can to understand his sexual offending, he would also … address the issues of sexual arousal and if you felt that you were attracted to someone of an inappropriate age, inappropriate relationship, and you felt some attraction, you would be counselled to expect that that might come up, that those sensations may appear and then how to react to them. So it's different than being, you know, naively out, associating with family members. … [Y]ou would have a lot of discussion about, “Well, if you felt this way, what would you do? You'd leave the room. You'd tell [the offender’s older sister] that I'm having inappropriate feelings, I need to go.”

298. Professor Boer further gave evidence that one of the biggest impediments offenders face in obtaining early release was obtaining a stable, available accommodation. Professor Boer conceded that the offender living with his sister carries some risk and is not the “best scenario”. In other words, Professor Boer appears to accept that there are pros and cons to the offender living with his sister upon his release. Nevertheless, Professor Boer gave evidence that it is a “stable family setting” and will have “a lot of protective factors”.

299. Professor Boer agreed that offender’s previous engagement in covert acts (eg. breaking into devices and obtaining materials) may be a problem, but a “comprehensive program” of therapy prior to the offender moving in would help negate some of the issues. In cross-examination, Professor Boer conceded that the comprehensive therapy he spoke of above has yet to be offered to the offender.

300. Professor Boer was also asked at the May 2024 hearing regarding the rehabilitation programs that are available to the offender. Professor Boer gave evidence that he has supervised these programs in the past and referred to the availability of a moderate and high-risk sex offender programs available at the AMC. These programs to his knowledge are between 6-9 months in duration and can be done in custody and in the community.

301. Professor Boer was of the view that the offender is willing and motivated to engage in such programs. He also noted that the counselling and therapy the offender has received thus far in the AMC has already begun to have a benefit to him.

302. Professor Boer was also cross-examined on his conclusions as to the offender’s risk of reoffending at the May 2024 hearing. Professor Boer was first asked as to the “other considerations” that were assessed under SVR-20 V2 tool discussed above at [187]. In particular, Professor Boer agreed while it is positive that the offender has shown insight as to the need for mental health treatment, at this stage it remains to be seen how the offender would actually respond to such treatment and nevertheless maintained that in his experience interest and the desire for insight are “very good indicators” of treatment success.

303. Professor Boer was also questioned by counsel for the prosecution on his preference for the SVR-20 assessment over the results of the Static-99R. Professor Boer relevantly responded as follows in relation to the difference between the two tests and the importance that the offender wants treatment: The level of risk [in relation to the SVR-20] isn't nearly as important as the narrative around it. The narrative around his risk is he wants treatment. That doesn't happen very often. He wants to continue in treatment upon release. There's all sorts of positive indicators of treatment need which drive risk down. So it's a different – the structural professional judgement guidelines are different than the actuarial tests in that regard. … ..the Static-99 is a group based… it’s a statistical estimate based on shared characteristics. [T]here's all sorts of little variables that bump your risk up but that's based on your similarity to a population of offenders, many of whom are not interested in treatment. So the Static- 99 doesn't tell you what to do or how to manage risk. That's what the SVR-20 does… [y]ou could be a member of a high-risk group but that doesn’t mean you’re necessarily high risk. … Karl Hanson, the author of the Static-99 said himself in one of his papers, if you want to understand the individual client, you might try doing the SVR-20. And so these are competing tests, in a way, but I do both. So you get your actuarial baseline of risk, and then you get your SVR-20 risk description, 'What are we going to do about it?'. So the variable – the labels of risk when they both include the word 'moderate' really ask the assessor to tell us, 'What do we do now? How do we make that risk more manageable?' (emphasis added).

304. Professor Boer did not consider that the risk issue of the offender living at his elder sister house was “the most potent risk issue”.

305. On rehabilitation, counsel for the offender submitted that the offender had strong prospects of rehabilitation. Counsel properly referred to the following factors as relevant: (a) The offender recognised that his conduct was abhorrent and wrong, and as such wants to change. (b) The offender has sought to undertake sex offender courses while on remand. In the absence of being able to do so during his remand, the offender has undertaken three rounds of counselling to address his depression and underlying issues at his own volition. The offender will also apply for further counselling when he becomes eligible. (c) The offender has been gainfully employed while on remand, currently working as an activities coordinator. Counsel for the offender at the hearing noted that the offender had worked his way up through various positions and was also “the first hand” in his unit as well. This, it was submitted, bodes well for the offender’s ability to undertake employment. (d) There have been no disciplinary issues when the offender was in custody. (e) Further, counsel for the offender also noted that the offender’s ability to undertake employment was adversely affected by the offender’s cannabis use disorder, which is under control at the AMC. (f) Professor Boer concluded that the offender has a high motivation to undertake sex offender treatment and was very focused on undertaking programmes to assist with his mental health. Professor Boer also noted that the offender was remorseful for his conduct. (g) In the absence of an explanation for their conclusion, the PSR’s conclusion on the offender’s risk of sexual reoffending should be disregarded in favour of Professor Boer’s. The Report by Professor Boer found the offender’s risk of sexual reoffending to be “moderate”, and the risk of general reoffending as “low”.

306. Ultimately, counsel for the offender in written submissions concluded by characterising the offender as a relatively young person, who had an “emotionally deprived” upbringing that did nothing to address his depression and suicidality. The offender was also exposed to cannabis at a young age. As such, the offender’s sentence, it was submitted, should facilitate the offender’s rehabilitation. I agree. The matters raised by counsel for the offender are consistent with the evidence.

307. In my view, on the evidence, the offender’s prospects for rehabilitation are somewhat better than only guarded, in light of the fact that there are real prospects for rehabilitation taking into account the rehabilitation the offender has undertaken thus far and his clear motivation to continue.

Totality and Concurrency

308. When sentencing for multiple offences, it is well-established that a court must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53; 19 ACTLR 223 at [64] (Zdravkovic). In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308; Mill v The Queen (1988) 166 CLR 59 at 63 (Mill); Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 623-4 (Pearce); R v XX [2009] NSWCCA 115; 195 A Crim R 38 at [52] (Hall J, Tobias JA and Kirby J agreeing).

309. I note that there are significant issues of totality in this case as I have to deal with offences committed when the offender was a young offender and offences committed when the offender was an adult. This means that there are two different sentencing regimes that are applicable.

310. In R v Carberry; Carberry v The King [2023] ACTCA 32 at [92], the Court of Appeal (Loukas-Karlsson, Kennett and Abraham JJ) made the following observations concerning totality: (a) There is no single correct approach to the structuring of multiple sentences, and the totality principle can be implemented in a variety of acceptable ways: Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 at [56]. (b) In determining questions of accumulation or concurrence, a court is required to look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill. (c) A sentence should not be “crushing” in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result or accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length): R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]-[17]. (d) Against these considerations, a sentence should not lead to a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences, or that an offender is being offered a discount for multiple offending: O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26](c) (O’Brien) (e) Making two counts wholly concurrent may reveal error in that to do so fails to take account of the differences in the conduct which were the subject of punishment on each count: Pearce at [49] (McHugh, Hayne and Callinan JJ).

311. Relevant principles are also discussed in Dawson v The Queen [2019] ACTCA 9 at [37] and O’Brien at [26]. I take these principles concerning totality into account in formulating the overall sentence.

312. Additionally, I note the observations of the High Court (McHugh, Hayne and Callinan JJ) in Pearce at [49] concerning double punishment and take the principles into account: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. (emphasis added)

313. I will take the principles of totality discussed above into account in formulating the total sentence. Non-Parole Period

314. I am required to set a non-parole period in relation to the offences committed when the offender was an adult: Sentencing Act s 65(2).

315. The principles concerning setting a non-parole period are well-established. See Taylor v The Queen [2014] ACTCA 9 at [19] (Murrell CJ): The proper approach to fixing a non-period is well established and can be summarised as follows. 1. A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender‘s subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627–628, Deakin v The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen (1990) 169 CLR 525 (Bugmy) at 536. 2. An offender‘s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531–532. 3. The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625. 4. Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range“ for non-parole periods… (emphasis added)

316. Counsel for the offender submitted that, as the offender’s prospects of rehabilitation are generally positive with appropriate treatment or support, a non-parole period of between 50-55% of the head sentence is appropriate in this case. I agree with this submission in light of the evidence concerning prospects of rehabilitation.

317. On the issue of non-parole period, the sentences I impose for the offending committed when the offender is a young person is an “excluded sentence”: Sentencing Act s 64(2)(f). As such, the requirement to set a non-parole period under s 65(2) does not apply to those sentences: see Sentencing Act s 64(1)(a).

318. Counsel for the prosecution properly submitted that considerations of rehabilitation can be achieved with the imposition of a non-parole period. Counsel noted that the offender will be eligible upon being sentenced to complete offence-specific therapy within the custodial environment. Further, counsel correctly agreed that the offender’s submissions have raised several relevant considerations for the Court when considering the imposition of any non-parole period.

319. I note in this regard that in order to accommodate the two sentencing regimes, it is best to place the young offender sentences first. Had the offences been the only offending I would be required to sentence for, they would have resulted in a suspended sentence being imposed rather than a non-parole period. But what I must do in these circumstances, in my view, is not to set a good behaviour order, but rather commence the adult sentences at the point where the young offender sentences would have been suspended had I only been dealing with the young offender offences.

320. The other point that I note in the context of structure is that in this case, it is appropriate to set a non-parole period of notionally and effectively 50% of the head sentence where, clearly, a great deal of rehabilitation and supervision is required. Technically, if one considers only the adult sentences, the non-parole period would not be 50%. The combination of the young offender suspended sentence (after 1 year) and the adult non-parole period results in an effective non-parole period of 50%. The non-parole period of the adult sentence is therefore a lower percentage. The overall notional non-parole period is nevertheless approximately 50%. I set the non-parole period in this way in view of the extended supervision on parole clearly called for in this case and the legislative and structural issues concerning combining young offender and adult offending sentences.

Sentence

321. Counsel for the offender ultimately submitted that the outcome that would ensure the best prospects of rehabilitation would be only a short sharp further period of imprisonment, followed by a period of supervision that would allow the offender to undertake courses and rehabilitative counselling. I do not agree that what is required is only a further short sharp period of imprisonment. In my view, a further period of one year and 3 months imprisonment is just and appropriate taking into account the minimum term of imprisonment that must be served for these serious offences, prior to eligibility for parole. Counsel for the offender put forward a period of “perhaps 2 years” of supervision within the community. I do agree that a period of intense supervision is required. The sentence for this offender will have a significant period of supervision on parole that is somewhat longer.

322. The appropriate sentence for the offending is a period of imprisonment, as set out in the table below. Each individual sentence has been discounted by 25% on account of the offender’s plea of guilty. The offence will be backdated to commence on 20 July 2022 to account for the time already spent in custody. No Offence and Charge Term of Term of Commencement Expiry Imprisonment Imprisonment Before Discount After Discount of approximately 25% 1 Attempted sexual 15 months 11 months 7 days 20/07/2022 26/06/2023 intercourse with a person under 16 years (CH2023/912) 2 Sexual intercourse 12 months 9 months 19/02/2023 18/11/2023 with a person under 16 years (CH2023/334) 3 Making available 4 months 3 months 19/10/2023 18/01/2024 pornographic material to a young person (CH2023/337) 4 Act of indecency on a 8 months 6 months 19/10/2023 18/04/2024 person under 16 years (CH2023/336) 5 Act of indecency on a 28 days 21 days 29/03/2024 18/04/2024 person under 16 years (CH2023/332) 6 Act of indecency on a 4 months 3 months 19/01/2024 18/04/2024 person under 16 years (CH2022/868) 7 Incest with a person 2 years 1 year and 6 20/07/2023 19/01/2025 under 16 years of months age (CC2022/7010) 8 Incest with a person 2 years 6 months 1 year, 10 months 19/09/2024 02/08/2026 under 16 years of and 15 days age (CC2022/7011) 9 Supply of cannabis to 12 months 9 months 03/05/2026 02/02/2027 a child (CC2022/7006)

10 Using child 12 years 14 months 10 months and 15 03/10/2026 17/08/2027 or older for the days production of child exploitation material (CC2023/6542) No Offence and Charge Term of Term of Commencement Expiry Imprisonment Imprisonment Before Discount After Discount of approximately 25% 11 Making available 8 months 6 months 18/05/2027 17/11/2027 pornographic material to a young person (CC2023/2005) 12 Act of indecency on a 8 months 6 months 18/09/2027 17/03/2028 person under 16 years (CC2022/7924) 13 Act of indecency in 12 months 9 months 18/01/2028 17/10/2028 the presence of a person under 16 years (CC2022/7009) 14 Unauthorised access 8 months 6 months 20/07/2028 19/01/2029 to restricted data (CC2023/8896)

323. The total aggregate sentence is therefore 6 years and 6 months’ imprisonment, commencing 20 July 2022 and ends 19 January 2029. For the adult offending (Counts 7-14), I impose a non-parole period of 2 years 3 months, beginning on 20 July 2023 and expiring on 19 October 2025.

Orders

324. Accordingly, I make the following orders: (1) In relation to offences committed when the offender was a young person: (a) For the offence of attempted sexual intercourse with a person under 16 years (CH2023/912), the offender is convicted and sentenced to 11 months and 7 days’ imprisonment commencing 20 July 2022 and expiring on 26 June 2023. (b) For the offence of sexual intercourse with a person under 16 years (CH2023/334), the offender is convicted and sentenced to 9 months’ imprisonment commencing on 19 February 2023 and expiring 18 November 2023. (c) For the offence of making available pornographic material to a young person (CH2023/337), the offender is convicted and sentenced to 3 months’ imprisonment commencing on 19 October 2023 and expiring on 18 January 2024. (d) For the offence of act of indecency on a person under 16 years (CH2023/336), the offender is convicted and sentenced to 6 months’ imprisonment commencing on 19 October 2023 and expiring on 18 April 2024. (e) For the offence of act of indecency on a person under 16 years (CH2023/332), the offender is convicted and sentenced to 21 days’ imprisonment commencing on 29 March 2024 and expiring on 18 April 2024. (f) For the offence of act of indecency on a person under 16 years (CH2022/868), the offender is convicted and sentenced to 3 months’ imprisonment commencing on 19 January 2024 and expiring on 18 April 2024. (2) In relation to offences committed when the offender was an adult: (a) For the offence of incest with a person under 16 years of age (CC2022/7010), the offender is convicted and sentenced to 1 year and 6 months’ imprisonment commencing on 20 July 2023 and expiring on 19 January 2025. (b) For the offence incest with a person under 16 years of age (CC2022/7011), the offender is convicted and sentenced to 1 year 10 months and 15 days’ imprisonment commencing on 19 September 2024 and expiring on 2 August 2026. (c) For the offence of supply of cannabis to a child (CC2022/7006), the offender is convicted and sentenced to 9 months’ imprisonment commencing on 3 May 2026 and expiring on 2 February 2027. (d) For the offence of using child 12 years or older for the production of child exploitation material (CC2023/6542), the offender is convicted and sentenced to 10 months and 15 days’ imprisonment commencing on 3 October 2026 and expiring on 17 August 2027. (e) For the offence of making available pornographic material to a young person (CC2023/2005), the offender is convicted and sentenced to 6 months’ imprisonment commencing on 18 May 2027 and expiring on 17 November 2027. (f) For the offence of act of indecency on a person under 16 years (CC2022/7924), the offender is convicted and sentenced to 6 months’ imprisonment commencing on 18 September 2027 and expiring on 17 March 2028. (g) For the offence of act of indecency in the presence of a person under 16 years (CC2022/7009), the offender is convicted and sentenced to 9 months’ imprisonment commencing on 18 January 2028 and expiring on 17 October 2028. (h) For the offence of unauthorised access to restricted data (CC2023/8896), the offender is convicted and sentenced to 6 months’ imprisonment commencing from 20 July 2028 and expiring on 19 January 2029. (i) I impose a non-parole period in relation to these adult offences of 2 years 3 months, commencing on 20 July 2023 and expiring on 19 October 2025.

I certify that the preceding three-hundred and twenty-four [324] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas- Karlsson Associate: Date: 13 August 2024 ANNEXURE: CASES REFERRED TO BY COUNSEL

Cases Referred to by Counsel for the Prosecution

DPP v van de Zandt (No 3) [2023] ACTSC 359 (van de Zandt (No 3)) 1․ The offender in this case was convicted in a jury trial with historical offending in 1986: van de Zandt (No 3) at [2]. He was the uncle of the victim, who was 15 years old at the time of the offending (the offender was 34): van de Zandt (No 3) at [1]. Whilst in bed, the offender rubbed and digitally penetrated the victim’s vagina (sexual intercourse with a person under 16 years): van de Zandt (No 3) at [9]-[10]. The offender then placed the victim’s hand on his erect penis (act of indecency on a person under 16 years): van de Zandt (No 3) at [10]-[11]. The offences were against ss 92E(2) and 92K(2) of the Crimes Act as was in force at the time, and carried a maximum penalty of 14 years and 10 years respectively: van de Zandt (No 3) at [1]. 2․ McCallum CJ found the offending to be opportunistic, and of mid-range objective seriousness: van de Zandt (No 3) at [23], [28]. The Chief Justice accepted that the offending have had a “devastating and lasting impact” on the victim: van de Zandt (No 3) at [19]. There was no evidence of remorse on the offender’s part despite the verdicts of the jury: see van de Zandt (No 3) at [31], [43]. The offender had no relevant prior convictions, and McCallum CJ was not persuaded that s 34A(b) of the Sentencing Act applied to the offender: van de Zandt (No 3) at [32], [35]. 3․ The offender was 72 years old and “needs relatively high medical care”: van de Zandt (No 3) at [29], [40]. His age and ill physical and mental health would therefore cause significant hardship in custody: van de Zandt (No 3) at [40]. McCallum CJ considered the offender’s age and ill health, alongside delay in bringing the matter, to be significant factors determining the minimum period the offender should spend in custody: van de Zandt (No 3) at [52]. 4․ The offender was sentenced to 3 years’ imprisonment for the sexual intercourse offending, and 18 months’ imprisonment for the act of indecency offending, to be served wholly concurrently with each other: van de Zandt (No 3) at [54]. The sentence was to be suspended after 6 months’ having regard to the offender’s age and poor health: van de Zandt (No 3) at [54]. Given his conviction after a jury trial, no discount for a guilty plea was applied to the offender’s sentence. R v XT [2016] ACTSC 335 (XT) 5․ In XT, the offender was a half-uncle of the 15-year-old victim. At the time of sentence, the offender was 60 years old: XT at [11]. The offending took place between 27 September 1991 and 19 September 1992: XT at [1](a)-(d). The offender introduced the victim to cannabis, and together they smoked about “two or three cones a day” and watched adult pornographic videos in NSW: XT at [5]. The offender often gave the victim massages when they consumed cannabis together. He also often masturbated the victim and performed fellatio on him on approximately four occasions: XT at [6]. These followed similar conduct occurring in NSW: see XT at [5]. 6․ The offender was charged with historical counts of sexual intercourse with a person under 16 years (fellatio), one count of attempted sexual intercourse with a person under 16 years (attempting to digitally penetrate the victim’s anus), and two counts of acts of indecency on a person under 16 years (masturbating the victim and inserting fingers between the victim’s buttocks): XT at [1], [7]-[8]. These counts are “representative” incidents and related to those which the victim could particularise: XT at [7]. As with van de Zandt (No 3), the applicable maximum penalty for the offences at the relevant time are 14 years and 10 years respectively: XT at [2]. 7․ The offender had prior convictions for several sexual offences: XT at [19]. Burns J found evidence of remorse, and also considered delay between the offences and the prosecution to be relevant: XT at [22], [25]. Burns J sentenced the offender to an aggregate sentence of 2 years and 9 months imprisonment for the 4 counts: XT at [29]- [33]. Burns J also discounted the sentence by 25% on account of the offender’s early plea of guilty: XT at [25]. The offender’s new effective term of imprisonment alongside the terms he was currently serving for other sexual offences was therefore 10 years, with Burns J resetting the non-parole period as 5 years: XT at [33].

R v WS [2021] NSWDC 135 (WS) 8․ In WS, the offender was convicted after a jury trial of historical offences of indecent assault and sexual intercourse without consent as against ss 61E(1) and 61D(1) of the Crimes Act 1900 (NSW), as the provisions then was (NSW Crimes Act): WS at [2]-[3]. The offender was 18 years old at the time of the offending in 1990, with the victim being his biological sister: WS at [6], [66]. There was a dispute as to the age of the victim, but Weber SC DCJ was satisfied beyond reasonable doubt that the victim was under 16 years of age at the time of the offending: WS at [28]. 9․ After completing her morning Year 10 examination, the victim returned home and went to the toilet. Upon exiting the toilet, she was grabbed by the offender. The offender dragged her into his room and began kissing her. Upon removing her clothes, the offender grabbed the victim’s head and pulled it down towards his penis, forcing her to lick it. This incident formed the charge of indecent assault: WS at [12]-[14]. The offender then pushed her onto the bed, pinned her legs so she could not move, and engaged in penile vaginal intercourse until he ejaculated. This incident formed the charge of sexual intercourse without consent: WS at [15]-[17]. 10․ Weber SC DCJ assessed both counts as below mid-range of objective seriousness, with the sexual intercourse without consent count being more serious: WS at [65]. The offender had no sexual criminal history: WS at [68]. At the time of the offending, the offender had no prior convictions although he was later convicted of criminal offences: WS at [59]. The offender demonstrated no remorse and continued to maintain his innocence: WS at [70]-[71]. Weber SC DCJ considered the offender to be unlikely to reoffend, with low risk for sexual offending: WS at [73]. Further, there is evidence that the offender had some form of intellectual disability, although it was not suggested that this was causative of the offending or lower the moral culpability of the offending: WS at [69]. 11․ Weber SC DCJ sentenced the offender to an aggregate sentence of 4 years and 3 months’ imprisonment, with an indicative sentence of 12 months for the indecent assault and 4 years for the sexual intercourse without consent offending: WS at [82]- [83]. His Honour was also satisfied that “special circumstances” exist in relation to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW): WS at [74]-[76]. The offender’s non-parole period was accordingly set at 2 years and 6 months: WS at [83](1).

R v WR (No 4) [2015] ACTSC 211 (WR (No 4)) 12․ The fourth case is WR (No 4). The offender was found guilty by a jury of six counts of acts of indecency on a child under 16 years of age contrary to s 61(2) of the Crimes Act as it was then in force: WR (No 4) at [1]-[2]. The offender was the stepfather of the victim. He was around 40 years old at the time of the offending, and the victim was 10- 11 years old: WR (No 4) at [3], [10]. As a summary, between 1990 and 1992 the offender performed 6 acts of indecency on the victim: WR (No 4) at [5]-[9]. The acts included making the victim touching the offender’s penis (Count 1, 6 and 7), making the victim sit on his lap and “move himself” around on her (Count 2), grinding while on his lap in water (Count 3), rubbing her bottom (Count 4), and rubbing the victim’s vaginal area from the front and back while wearing no pants (Counts 6 and 7): WR (No 4) at [5]-[9]. 13․ Ashford AJ assessed 3 of the counts (Counts 1, 6, 7) as falling above the mid-range but not in the highest range of objective seriousness: WR (No 4) at [16]. The remaining 3 counts were assessed as falling in the lower range of objective seriousness: WR (No 4) at [16]. The offender was almost 65 years old at the time of sentence: WR (No 4) at [10]. He maintained a categorical denial of the charges and did not take responsibility for the offending: WR (No 4) at [14]. It is apparent that the offender did not show remorse, and he refused to undertake any interventions if convicted and showed no victim empathy: WR (No 4) at [14]. 14․ Ashford AJ sentenced the offender to individual terms of imprisonment of 9 months’ imprisonment for counts 2, 3, 4, and terms of 18 months’ imprisonment for counts 1, 6, and 7: WR (No 4) at [25]-[30]. The total aggregate sentence imposed was 4 years and three months, commencing on 26 March 2015: WR (No 4) at [31]. There was concurrency between the individual sentences, with Ashford AJ setting a non-parole period of 2 years and six months: WR at [25]-[31]. As with van de Zandt (No 3) and WS, no discount was applied.

R v CC [2016] ACTSC 43 (CC) 15․ CC also involved offending on a stepdaughter. The offender was charged with 5 counts of incest and 1 count of acts of indecency with a young person between 10 and 16 years of age, contrary to ss 62(2) and 61(2) of the Crimes Act then in force: CC at [1]. The victim was 13 years old at the time of the offending: CC at [4]. 16․ On 27 March 2015, whilst watching music videos the offender digitally penetrated the victim (incest). The offender then undid the victim’s bra and began to touch her breasts (acts of indecency), before digitally penetrating the victim’s vagina again (incest): CC at [5]. The remainder three counts of incest were also related to penetration of the victim’s vagina, including through cunnilingus: CC at [6]. The Victim Impact Statements from the victim and victim’s mother demonstrated the significant impact of the offending: CC at [8]-[11]. 17․ The offender was 34 years old at the time of sentence: CC at [12]. The offender had a history of mental health problems and attempted suicide, as well as having taken medication for depression: CC at [19]. The offender also participated in group sessions in custody to address his alcohol and illicit substance use: CC at [17]. 18․ Unlike the offender in WR (No 4), the offender pleaded guilty following negotiations: CC at [2]. As a result, Burns J applied a 25% discount to the otherwise appropriate sentences to reflect the utilitarian value of the plea: CC at [46]. Burns J noted that the offender has been assessed as having a low to moderate risk of sexual reoffending and has made some engagement with an adult sex offender program: CC at [22], [35]. Burns J considered that while the offender has expressed a level of remorse, he has also attempted to minimise or explain his actions in his interaction with police and Corrections: CC at [47]. 19․ Burns J sentenced the offender to terms of imprisonment of 3 to 3.5 years for the incest offending, and 12 months for the act of indecency: CC at [48]-[53]. The total aggregate sentence imposed was 5 years and nine months’ imprisonment, with a non-parole period of approximately 50% of the sentence (two years, 11 months) imposed: CC at [54].

R v Aitchison (No 3) [2018] ACTSC 214 (Aitchinson (No 3)) 20․ Aitchison (No 3) involved historical sexual offences by a deacon of the Anglican Church between July 1987 and October 1989: at [3]. The offender was found guilty by a jury of seven counts of acts of indecency with a young person and five counts of sexual intercourse with a young person: Aitchison (No 3) at [1]. The victim between 13 and 15 years of age at the time of the offending: Aitchison (No 3) at [3]. The offending occurred at an Anglican Church and the victim’s house. The counts variously involved both penile-vaginal and penile-anal sexual intercourse, digital penetration of the victim’s vagina, the touching of the victim’s body (including breasts and groin area), placing of the victim’s hand on the offender’s penis, kissing, and the removal of the victim’s shorts and underwear: Aitchison (No 3) at [7]. 21․ The offender was around 68 years of age when he was sentenced and suffered from an adjustment disorder and associated depression: Aitchison (No 3) at [12], [15]. Elkaim J observed that the offender was unlikely to reoffend, if only because of his age and the limited access he would now have to potential victims: Aitchison at [11]. The offender also had prior convictions, including for offending against children: see Aitchison (No 3) at [17]-[18]. As the offender maintained his innocence, Elkaim J noted that there is no element of remorse: Aitchison (No 3) at [24]. 22․ Elkaim J sentenced the offender to a total term of imprisonment of 9 years for the offending from 27 April 2018 to 26 April 2027, with a non-parole period of 5 years expiring on 26 April 2023: Aitchison (No 3) at [26]-[28]. This included individual sentences of 5-6 years for sexual intercourse with a young person, and 12-18 months for acts of indecency: Aitchison (No 3) at [26](a)-(l).

R v AQ [2021] ACTSC 74 (AQ) 23․ In relation to sexual offences committed by children, counsel for the prosecution also referred to AQ. AQ involved an offending by a young person, who pleaded guilty to incest and act of indecency in the presence of his younger sister: at [1]-[2]. Mossop J observed that the authorities his Honour was referred to “do not provide any clear sentencing patterns of offences like this”: AQ at [32]. For his part, counsel for the prosecution noted that AQ is “clearly distinguishable” from this case on several fronts and the prosecution in AQ also conceded that a wholly suspended sentence was appropriate: AQ at [31].

R v CV (Supreme Court (ACT), Nield AJ, 5 September 2012, unrep) (CV) and R v EO [2017] ACTSC 138 (EO) 24․ Counsel for the prosecution also noted that a number of sentencing decisions he reviewed did not occur in a familiar context, or otherwise do not carry any other number of similar features that would make them of assistance to the Court in dealing with offending committed when the offender was a young person. As an example, counsel cited the cases of CV and EO. In both cases, the prosecution submitted that there was only limited offending that occurred, with a young person engaging in sexual acts with children under the age of consent: see description of the offending in CV at [7]-[12], [29]; EO at [3]-[6].

Cases Referred to by Counsel for the Offender

R v Young (a pseudonym) [2021] NSWDC 702 (Young DC); Young (a pseudonym) v The Queen [2022] NSWCCA 111 (Young) 25․ The first cases referred to in the February 2024 hearing are Young DC and Young. The offender in Young pleaded guilty to two historic offences of sexual intercourse with a person aged between 10 and 16 years, contrary to s 66C(1) of the NSW Crimes Act, and an offence of attempted sexual intercourse with a person aged between 10 and 16 years old, contrary to s 66D of the NSW Crimes Act: Young at [4]. Both offences carried maximum penalties of 8 years imprisonment at the time, and there were also three further offences against s 66C(1) taken into account on a “Form 1”: Young at [4]. The victim was the offender’s half-niece: Young at [10]; Young DC at [1]. 26․ At the time of the offending in about 2003-4, the offender was 14-16 years old: Young at [4], [12]. The offending occurred when the victim was 9-11 years old: Young at [4], cf Young DC at [4]. The matters subject of the charges were also representative incidents: Young DC at [11]. 27․ The offender first started to touch the victim and forced her to touch him. Sometime after that, the victim was lying on a bed when the offender inserted a yellow hose rubber into her vagina (Form 1 s 66C offence): Young at [12]. The victim replied that she did enjoy it as she thought it was “normal”, with N Adams J in the NSW Court of Criminal Appeal noting that this was presumably due to separate assaults being committed on her by her grandfather: Young at [12]. The offender masturbated while he did this. The offender then put his penis into her mouth, and the victim sucked his penis until he ejaculated (sexual intercourse with a person between 10 and 16 years of age). 28․ On a second occasion, the victim was lying on a bed when the offender again inserted some yellow hose rubber into her vagina (Form 1 s 66C offence). The offender also inserted his fingers into the victim’s vagina to “stretch” it (sexual intercourse with a person between 10 and 16 years of age). The offender then tried to insert his penis into the victim’s vagina, but the victim screamed and squirmed (attempted sexual intercourse). The offender moved off her and apologised. He then put his penis into her mouth instead and she sucked it (Form 1 s 66C offence): Young at [13]. 29․ The offender and the victim in Young came from a household where physical and sexual violence were common, and the offender was subject to emotional and psychological abuse from his father (the victims’ grandfather): Young at [5], [11], [21]. It was accepted that the Bugmy principles applied to the offender, and that the applicant was to be sentenced on the basis that he was a child when the offences were committed (he was 34 years old at the time of the sentence): Young at [4], [23]. 30․ However, the delay in bringing a prosecution meant that, among other things, the offender lost the opportunity to be tried in the Children’s Court and was sentenced as an adult in the District Court: Young at [6], [38]. Due to legislative changes in 2018, some sentencing options were also lost due to delay: Young at [46]-[49]. N Adams J also observed that the delay in prosecution also meant the loss of possibility for the cycle of abuse involving the offender and the victim to be addressed earlier: Young at [44]. 31․ The applicant had no criminal history at the time of the offences but had an extensive criminal record by the time of the sentence: Young at [18], [45]. 32․ The trial judge, Haesler DCJ, considered each of the offences to be “individually serious” and involved gross exploitation of a child’s body for personal gratification: Young DC at [13]. The offending also had a significantly negative impact on the victim’s mental health and wellbeing: Young DC at [27]. Haesler DCJ noted that while the fact that the offending occurred in the family home would be a circumstance of aggravation, given the abusive and “dysfunctional” nature of the family the victim could not have treated her home as one of safety as refuge: Young DC at [13]. 33․ Haesler DCJ ultimately sentenced the offender to an aggregate sentence of three years imprisonment, with the indicative individual sentences being one year and 10 months’ imprisonment for the two counts of sexual intercourse offending, and 1.5 years for the attempted sexual intercourse: Young DC at [36]. This is after applying a 25% discount on account of the plea of guilty, and a parole period of 1.5 years was also imposed: Young DC at [36]-[37]. 34․ The NSW Court of Criminal Appeal (N Adams J, Bell CJ and Button J agreeing) accepted that the applicant’s subjective case was “overwhelmingly strong”, but the objective seriousness of the offending meant that the threshold of imprisonment was crossed: Young at [56]. It was also accepted at appeal that the trial judge had addressed all relevant matters: Young at [34]. 35․ However, the NSW Court of Criminal Appeal held that the sentence was manifestly excessive in light of the numerous impact of delay, the fact that the offender was 14 when the offending commenced, the context in which the offences were committed, Bugmy factors, and that the offender was also a victim at the time: Young at [66], see also [63] (N Adams J). The Court reduced the aggregate sentence to 2 years’ imprisonment, with a non-parole period of 16 months. The indicative individual sentences were also accordingly reduced to 1 year and 3 months (sexual intercourse) and 1 year and 2 months (attempted sexual intercourse): Young at [71]-[72]. 36․ Counsel for the offender submitted that the age difference between the victim and the offender in Young was similar. Counsel also noted that the circumstances of the offending were also similar, although not the same. For one, the offending in Young only involved one victim.

AQ 37․ The offender also relied on the case of AQ at the February 2024 hearing. As noted above, AQ involved a young person pleading guilty to offending against his sister: AQ at [2]. The charges were incest with a person between 10 and 16 years of age and to committing act of indecency in the presence of a person between 10 and 16 years of age. These offending carried a maximum penalty of 15 and 10 years imprisonment respectively: AQ at [1]-[2]. The offences were also “course of conduct” charges: Crimes Act s 66B, cited in AQ at [2]. 38․ The offender performed repeated acts of sexual activity on the victim between March 2018 and March 2020, when the victim was 9-11 years old and the offender was 13-15 years old: AQ at [5]-[7]. The sexual activity always occurred in the offender’s bedroom. Mossop J noted that the activity included the victim performing oral sex on the offender and the offender rubbing the victim’s vagina, skin on skin: AQ at [5]. On some occasions, the sexual activity also included the victim masturbating the offender’s penis to ejaculation: AQ at [5]. When this occurred, it took place after the oral sex but before the offender touched the victim’s vagina. The offender would then remove his ejaculate with tissues: AQ at [5]. This activity is also a sequel to similar incidents of sexual activity in NSW, which Mossop J noted provided background to the offending: AQ at [3]-[4]. 39․ The victim initially stated that she could not recall the number of times the sexual activity occurred. The victim noted that it occurred about once or twice per week over a two-year period. The victim said there were two or three gaps in this period, of about one or two weeks each, in which no sexual activity occurred. The victim said that she performed oral sex on the offender about half the times that the offending occurred: AQ at [6]. 40․ The last time the offending occurred was on 24 March 2020, when the victim was 11 years old and the offender 15: AQ at [7]. The victim was walking in the hallway towards her bedroom when the offender grabbed her by the arm. The offender then used a medium degree of force to move her into his bedroom and then closed the door: AQ at [7]. The offender told the victim to suck his penis. The victim refused, and the offender told her to do it and get on the bed. The offender used his hands and some force to move the victim onto the bed. While the victim sat on the bed, the offender stood in front of the victim and pulled down his pants before putting his penis in her mouth. The victim moved her head back and forth while performing oral sex on the offender for approximately two minutes, stopping because the offender said “[t]hat is enough”. The offender then rubbed the victim’s vagina, skin on skin, for a few seconds. The victim asked to leave and the offender stopped: AQ at [8]. 41․ Mossop J noted that each count fell within the “mid-range” of objective seriousness of the offending: AQ at [13]. Mossop J also noted that the offending does not have a clear explanation, but involved “exploitative self-gratification” at the expense of the offender’s victim and abuse of power arising from their age difference: AQ at [33]. Mossop J also observed that the victim is likely to suffer long-term psychological consequences from the offending, although how significant was not clear at the time of sentencing: AQ at [37]. 42․ Mossop J noted that the offender’s risk of reoffending by Child and Youth Protection Services assessed his overall risk of reoffending as low: AQ at [14]. The offender also reported that he has never used alcohol or illicit drugs, and otherwise had a relatively normal childhood: AQ at [18], [22], see also [17]. The offender also had no criminal history: AQ at [28]. The PSR noted that the offender he acknowledged his offending was serious and has both apologised to the victim and expressed a desire to “apologise to everyone”: AQ at [25]-[26]. Mossop J ultimately concluded that the offender’s prospects of rehabilitation are very good, that the offender has made good progress with psychological counselling he has received and recognised the wrongfulness of his conduct: AQ at [33]. 43․ Mossop J nevertheless noted that the seriousness of the offending demanded a custodial sentence. His Honour imposed a sentence of imprisonment of 6 months for the count of incest and 3 months’ imprisonment for the act of indecency, after the application of a discount of 25% from 8 months and 4 months respectively: AQ at [34]. Ultimately, however, Mossop J wholly suspended the sentence in light of the low risk of reoffending and as required the purpose of promoting rehabilitation of a young offender: AQ at [34]. 44․ Counsel for the offender noted that the difference between the offender and the offender in AQ was not remanded in custody, and as such was able to undertake what counsel characterised as effective psychological counselling.

DPP (Vic) v Pagani (a pseudonym) [2022] VCC 2013 (Pagani) 45․ The first case further tendered at the May 2024 hearing is Pagani. The offender was convicted after a jury trial of six counts of incest, contrary to s 44(4) of the Crimes Act 1958 (Vic) in force at the time of the offending: Pagani at [1]. The maximum penalty for the offending was seven years’ imprisonment: Pagani at [19]. Four of the charges were for offending against the offender’s sister between October 1997 and February 1999. The remaining two were for offending against his brother between March and September 1998: Pagani at [1]. The offender was between 15-16 years of age at the time: Pagani at [1]. 46․ The facts of the offending were as follows in Pagani were helpfully set out by Judge Chettle as follows (at [2]-[8]): (a) In 1997, the offender’s sister was in a bedroom of the family home. The offender’s sister was lying on a bunk when the offender entered the room. He pulled her pants down, removed his pants and climbed on top of her, thrusting his penis inside her vagina. The victim experienced pain, pushed the offender away, and made a noise because of the pain. The offender pulled his pants up and left the room. The victim went to the toilet and observed blood on the toilet paper after she wiped herself. At the time, the victim was 11 and the offender was 15. (b) The offender went into the closet where his sister was hiding in a game of hide-and-seek with him. The offender pulled the victim’s pants down and then pushed his erect penis into the victim’s mouth and made her perform fellatio. The offender shortly after pulled his penis out of the victim’s mouth, pulled his pants back up and left. (c) In a further game of hide-and-seek, the offender again entered a closet where his sister was hiding and made the victim perform fellatio. This time, the offender ejaculated in her mouth. After the offender left the closet, the victim went to the bathroom to spat out what was in her mouth and washed it out. (d) In a later game of hide-and-seek, the offender again located the victim in the closet and made her perform fellatio. The offender stopped after 30 seconds. (e) In 1998, the offender was playing football with his brother when the offender tackled him to floor. The offender pulled his pants down and pushed his penis into the victim’s anus. The victim felt pain and went to call out. However, the offender put his hand over the victim’s mouth. After this, the offender got off him like nothing had happened and departed. At the time, the brother was 8 years old, and was younger than the first victim. (f) In a subsequent occasion, the offender again tackled his brother after the victim noticed the offender’s erect penis. The offender put his penis in the victim’s mouth. The victim sucked the offender’s penis until the offender ejaculated in his mouth. The victim pulled his head away and the ejaculate went on the victim’s face as well. The offender had been pushing his head back and forward with his hands. The victim was on his knees and the offender was standing up. 47․ Judge Chettle observed that both victims have been “permanently and deeply scarred” by the offending: Pagani at [11]. The offender also refused to acknowledge and admit the offending despite the jury verdict, although Judge Chettle accepted that this did not aggravate the offending and merely denied “the sentencing benefit” attached to remorse: Pagani at [13]-[14], [16]. While the offending were “abhorrent and disgusting”, Judge Chettle noted that the offender was himself a child at the time of the offending (he was 40 years old at the time of sentencing) and had no further criminal history or subsequent offending: Pagani at [15]. The offender had therefore “demonstrated total rehabilitation”: Pagani at [16]. 48․ Judge Chettle took into account Victorian authorities on sentencing offenders who were children at the time of the offending and not prosecuted until years after the offending: Pagani at [17]-[18]. The offender was sentenced to 1 year imprisonment for the offending against his sister, to be served concurrently. The offender was sentenced to 1 year imprisonment for the offending again his brother, served cumulatively upon the sentence on Charge 1 against the first victim. This yielded an effective sentence of 2 years’ imprisonment for all of the offending, to be totally suspended: Pagani at [20]. Judge Chettle also noted that had the offender been 3-4 years older when the offending occurred his Honour would have imposed a substantial custodial sentence to be served immediately: Pagani at [19].

DPP (Vic) v Dunlea (a pseudonym) [2017] VCC 1106 (Dunlea) 49․ The second case is DPP (Vic) v Dunlea (a pseudonym) [2017] VCC 1106 (Dunlea). The offender pled guilty to one count of incest, being a representative charge of two occasions of penal-vaginal sex: Dunlea at [1]. At the relevant time, the maximum penalty was 5 years’ imprisonment: Dunlea at [15]. The victim was the offender’s younger sister, and the offending occurred between 1 January 2012 and 4 February 2014. At the time, the offender was 16-18 years old and the victim was 10-12 years old: Dunlea at [2]. 50․ The offending happened after the offender broke up with a girlfriend. The offender entered the victim’s room, started talking to her, and then engaged in penile-vaginal sex. The offender screamed for help as she refused to have intercourse, but the offender persisted. The offender told her that this was just something brothers and sisters did: Dunlea at [10]. In an interview with the police, the victim also detailed another occasion of penile-vaginal sex when the offender came into her room. The offender held her down, holding the victim’s chest in the offender’s hand, and started rubbing her vagina: Dunlea at [11]. 51․ Upon being interviewed by the police in March 2014, the offender admitted to having penile-vaginal sex on one occasion only. At the end of the interview, the offender noted that he could not remember having sex with the victim but conceded that it had happened if the victim said it had: Dunlea at [12]. The offender also noted to smoking 7 grams of cannabis per day up until victim made the allegations, and that this had affected his memory: Dunlea at [13]. 52․ Judge Lawson noted that the offending is “very serious”, and has had an extremely-traumatic and long-lasting effect on the victim, the victim’s mother, and the extended family. The offending was also aggravated by multiple features, including that the offender had not used a condom, taken the victim’s virginity, and had infected her with herpes: Dunlea at [14], [16]. Ultimately, Judge Lawson considered the offending be a “mid-level example” of the offence of incest: Dunlea at [46]. 53․ The offender had apologised and acknowledged the serious nature of the offending and the impact it had on the victim and his extended family: Dunlea at [21]. The offender’s parents separated when the offender was in early teens. The offender did not have a good relationship with his father, who was described as having issues with alcohol, although his father now supports him: Dunlea at [24]. The offender had no relationship with his mother since the disclosure of the offending, and he had to remove himself from her care: Dunlea at [24], [28]. 54․ The offender was bullied at school and had learning difficulties (dyslexia and poor literacy skills): Dunlea at [25]. The offender also had long-term history of cannabis use since he was 14 (he was 22 at the time of sentencing), and Judge Lawson noted that the offender admitted to using other drugs and previous problematic use of alcohol two years prior to sentencing: Dunlea at [23],[27]. The offender did not have a criminal history apart from traffic offences due to be finalised the day after the sentencing: Dunlea at [29], [34]. 55․ Judge Lawson also took into account the delay in bringing the matter: Dunlea at [32]- [33]. Judge Lawson also accepted that the offender’s plea of guilty recognised an acceptance of wrongdoing and remorse: Dunlea at [34]-[37]. Judge Lawson was satisfied that the offender was not suffering from a major depressive disorder, although accepted that the offender had suffered from depression and some suicidal ideation since the charges were laid: Dunlea at [38], [41]-[42]. 56․ Ultimately, Judge Lawson sentenced the offender to a three-year community correction order: Dunlea at [61]. But for the plea of guilty, Judge Lawson noted that the offender would have been sentenced to a term of imprisonment of 3 years, and will serve 18 months: Dunlea at [65]. ANNEXURE: RELEVANT SENTENCING GRAPHS