Hockley v R

Court of Criminal Appeal (NSW)|2023-10-11|Before: Mitchelmore JA, Rothman J, Wilson J

JUDGMENT

MITCHELMORE JA: I agree with Wilson J.
ROTHMAN J: I agree with the orders proposed by Wilson J.
WILSON J: On 13 April 2023 the applicant, Adam Hockley, was sentenced by her Honour Judge Beckett in the District Court sitting at Penrith for several child sex offences. The leave of this Court is sought, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the sentence imposed by her Honour. The identities of the three children the subject of the charges is protected by s 578A of the Crimes Act 1900 (NSW) and s 15A(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW), and pseudonyms have been used in referring to them.
The applicant entered pleas of guilty to five offences in the Local Court and was committed for sentence to the District Court for those offences, with others placed before the sentencing court on three Form 1 documents, to be taken into account when sentence was imposed for the relevant committal offence. All of the offences are contrary to the Crimes Act; some carry a standard non-parole period ("SNPP"). The offences are as follows: Sequence Offence and Maximum Penalty Indicative Sentence Form 1 1 Sexual intercourse with child between 10 and 14 years (WH); s 66C 28 months with a non-parole period ("NPP") of 17 months Produce child abuse material (WH); s 91H(2) Maximum penalty: 16 years / 7 years SNPP 2 Meet child groomed for sexual activity (WH); s 66EB(2A) 24 months with a NPP of 14 months Maximum penalty: 15 years / 6 years SNPP 9 Possess child abuse material; s 91H(2) 18 months Maximum penalty: 10 years 29 Groom child under 14 years for sexual activity (BH); s 66EB(3) 26 months with a NPP of 15 months Produce child abuse material (BH); s 91H(2) Maximum penalty: 12 years / 5 years SNPP 30 Groom child under 14 years for sexual activity (ZB); s 66EB(3) 26 months with a NPP of 16 months Produce child abuse material (ZB); s 91H(2) Maximum penalty: 12 years / 5 years SNPP

An aggregate term of 6 years imprisonment was imposed upon the applicant, with a NPP of 3 years and 7 months specified. The indicative sentences noted against each offence imported a 25% discount on the sentences that would otherwise have been announced, to recognise the early pleas of guilty. The sentence commenced on 15 January 2021, the date of the applicant's arrest, and will expire on 14 January 2027. The earliest date for release to parole is 14 August 2024.
In challenging the correctness of the sentence, the applicant proposes three grounds of appeal: "(1) The indicative sentences imposed in relation to sequences 2, 29 and 30 are manifestly excessive and have informed error in the aggregate sentence imposed; (2) The aggregate sentence imposed failed to properly take into account the totality of the accumulation of the indicative sentences. (3) The sentence imposed was manifestly excessive in all the circumstances."

A Preliminary Note about Pronoun Use

The applicant was born and has lived his life until recently as a male. All the applicant's crimes were committed as a man, and much of the documentary record, including evidence tendered on sentence, refers to the applicant by using the male pronouns "he / his / him". Recently, the applicant has expressed the wish to live as and be seen to be a woman. The applicant now prefers to be referred to by the feminine pronoun. No gender reassignment surgery has taken place.
In this judgment, where pronoun use is necessary, it will be given to reflect the applicant's accepted gender at the relevant time, more accurately reflecting the reality of the applicant's life and crimes. To refer to the applicant as female at the time of the offences would lead to confusion and even absurdity.

The Proceedings in the District Court

The sentence proceedings were held before the sentencing court over two separate days, on 16 February 2023 and 12 April 2023. Sentence was imposed on 13 April 2023.

The Crown Case

The Crown tendered a statement of facts with which the applicant agreed. The following summary is drawn from that document, which was accepted by the sentencing judge as establishing the facts of the offences.
The applicant, who was at that time aged 33 years, came to know the three male complainants by separately engaging each in communication via the "Snapchat" app. Each of the complainants was aged 13 years old at the relevant time; the children knew each other through Snapchat, although they had never met.
On 17 December 2020, WH, to whom sequences 1, 2, and the offence on the Form 1 to sequence 1 relates, posted a story on Snapchat. The applicant responded to the story, and there followed a conversation between WH and the applicant using the Snapchat feature. The applicant claimed to be a computer software designer residing in the Hunter Valley. He chatted to WH about WH's mental health and his depressive condition. That same day he sent WH an image of his flaccid penis, with the comment "flop, flop, flop. I was trying not to be rude lol [1] but seems u wanted this". [2] WH responded by asking the applicant his age. Subtracting 10 years from his actual age, the applicant replied that he was 23. WH told the applicant correctly that he was 13 years old. Notwithstanding the clear statement by the complainant of his age, the applicant sent a message to him, "oh if u want it u can have what u want. Ur a cutie lmao". [3]
When the complainant asked the applicant if he wanted to "trade" the applicant replied "only if ur comfortable. I'd stick my tongue right up your ass if u wanted it". WH sent an image of his erect penis. The two then exchanged a series of videos and messages, commencing with the applicant who sent a masturbation video captioned, "That's yummy asf. [4] I'd swallow everything that comes out of it".
WH next made a reference to meeting. He and the applicant exchanged a further five masturbation videos. The messages accompanying the images sent by the applicant were highly sexual, as follows: "Hell yeah. I'll do anything u want. I'd pay to taste u. U done anything kinky before? 2-hour drive but worth it just to have u sit on my face Yep definitely. Would u pee in my mouth if I asked u to? I'd let u do the other thing too if u want. I wanna suck ur hole while u sit on my face I'm pretty close. I wanna lift ur legs and stick my tongue in you while I jerk u off"
The sexually explicit messages continued. On 19 December 2020, the applicant sent an image of a penis to WH with the message, "if u wanna chat stuff about age or anything do in here". WH did not reply. The applicant's next message was, "But it's not illegal to care about a 13 yr old it's not like I could be ur dad or anything". WH did respond to this message, "I think if it's sexually it is But idc". [5] The response from the applicant was "Yeh it is lol But what ppl dont know wont hurt em".
The next day the applicant placed a voice call to WH and they spoke for about twenty minutes. The applicant told WH that he loved him. WH was concerned at what he thought was an obsession by the applicant. He told the applicant that it was "all too much" and thereafter "blocked" the applicant from communicating with him via Snapchat. The applicant's response was to create a new username and request "friends" status with WH. WH eventually allowed the request.
Soon after, there was another voice call between the applicant and WH. In that thirty minute conversation the applicant urged WH to meet him. When the boy expressed uncertainty, the applicant encouraged him by telling him they would "hang out, listen to music and go for a drive somewhere". On 21 December 2020, an arrangement was made for the applicant to travel from his home in Cliftleigh to Penrith where WH lived (a distance of 186 kilometres). The plan was for WH to "sneak out" of his home without his parents' knowledge and meet the applicant. The applicant arrived in Penrith at about 11:30pm and parked near WH's home. There was an exchange of messages and, a little before 1am on 22 December 2020, WH climbed out of his bedroom window and went to where the applicant was parked. This meeting was reflected by sequence 2.
The applicant drove the complainant to a location next to the nearby Nepean River and parked. Without any discussion about it, the applicant pulled the boy's trackpants and underpants down and performed fellatio on him (sequence 1). Although WH told him, "That's enough for now", the applicant continued for a further five minutes. He stopped only when the complainant again told him, "That's enough now, let's go home". The applicant drove WH back towards his home and dropped him off nearby. He then drove home.
On 3 January 2021, WH posted a request on Snapchat asking for food to be sent to him by "Uber eats". The applicant responded to the request and arranged for pizza, at a cost of $25.25, to be delivered to WH. The same thing occurred the following day, with the applicant dispatching over $40 worth of sandwiches and other food to WH by Uber Eats. WH's mother became aware of the delivery of the food and asked WH about it. This led to WH telling her that the applicant had sent him a penis image, and convinced WH to meet him. WH said that the applicant had "sucked" him when in the car.
During their communications and without WH's knowledge, the applicant screen recorded the images WH sent him of his penis, and the videos that showed WH masturbating. The applicant saved these recordings, and his creation of this child abuse material was reflected by the offence taken into account when sentence was imposed for sequence 1.
Police were contacted and the applicant was identified and arrested. In an electronically recorded interview, the applicant said that he had chatted with WH and met up but denied sending him sexual images or performing oral sex upon him. He claimed to have done no more than kiss the boy on the forehead.
The applicant's arrest led to the discovery of the remaining offences. A search was conducted of the applicant's home and electronic devices. Across three mobile telephones, a tablet, two computers, three hard drives, and a storage device, some 647,840 image files and 30,071 video files were found. Of 361,168 image files and 17,531 video files sampled by investigating police, 1,802 files contained child abuse material that fell within the Interpol Baseline Categories One (children under 13 years involved in genital / anal sexual acts) or Two (involving children under 16). The storage device contained 251,377 image files and 6900 video files, all of which were pornography. The sample of 1,802 files containing categorised child abuse material is reflected by sequence 9.
The applicant's mobile telephone also led police to discover the offences involving the complainants BH and ZB.
The applicant maintained a Snapchat conversation with 13 year old BH between 3 July 2020 and 13 January 2021. The conversation began when BH posted a request on Snapchat to borrow money connected with a video game he had lost. The applicant responded and thereafter sent messages to BH at least twice daily. He told BH that he was 19 years of age and, after a couple of months of messaging, the applicant asked BH to send intimate images and videos. He sent masturbation videos to BH, and met him on at least three occasions, buying him an iPhone SE, AirPods, a vape, and a rose gold necklace during these meetings. The applicant told BH that if BH would be his friend, he would buy him anything he wanted. The applicant's interaction with BH was charged as sequence 29, whilst the offence taken into account when sentence was imposed for sequence 29, an offence of producing child abuse material, reflected the applicant's conduct in screen recording and saving photographs that BH sent the applicant of his penis, and videos of him masturbating.
The applicant began chatting with the third complainant, 13 year old ZB, on Snapchat on 15 September 2020, initially about online gaming. From then until 20 December 2020, the applicant sent ZB images and videos of his own penis and encouraged ZB to send him the same type of images and videos as he had sought from the other boys. The applicant promised to give ZB a computer, phone, and money in exchange for the images and dropped the sum of $500 cash into ZB's letterbox in payment for the images he received. That conduct is reflected by sequence 30. As he had done with the other boys, the applicant screen recorded and saved the intimate imagery sent to him by ZB, the production of this child abuse material being reflected by the offence taken into account on sentence against sequence 30.
The Crown also tendered the applicant's criminal history which showed that he had no previous convictions. The image of the applicant on the document shows a thin and balding man who looked considerably older than his age of 33.
Victim impact statements ("VIS") were given on behalf of WH and ZB. WH's father told the sentencing court in the VIS prepared for WH that he had gone from being an "effervescent" boy to a fearful child who self-harmed in escalating seriousness that culminated in a suicide attempt, then anorexia. As at the date of sentence, WH remained deeply adversely affected by his experiences. ZB's mother reported that ZB had, since his involvement with the applicant, become a withdrawn and anxious child who is unwilling to leave his bedroom and refuses to interact with others.
Evidently in response to evidence anticipated to be led in the applicant's case on sentence, the Crown also tendered a statement from Detective Senior Constable ("DSC") Kyel McGarry. DSC McGarry conducted a search of the police database and found no records relating to any complaint by the applicant of having been sexually abused as a child. There was no current or past investigation concerning such a complaint by Kings Cross Police or any other police command. There was a record noting that the applicant had been spoken to in 2003 as a potential witness in relation to paedophile activity, but he made no report of anything untoward to investigating police.
A record was found of a complaint of sexual assault made by the applicant when an inmate at Parklea Correctional Centre that related to an incident alleged to have occurred when he was housed at Hunter Correctional Centre at Cessnock. No action had been taken on the complaint as surveillance footage taken at the time and place of the alleged assault showed that no sexual activity had occurred; police noted inconsistencies in the applicant's account, and he told investigators that he did not wish to proceed with the allegation. Notably, the subject of the complaint told investigators that he had had a consensual relationship with the applicant (of which correctional authorities had been previously aware) and said that the applicant had told him that he was considering fabricating a sexual assault allegation to help him avoid a custodial sentence [for these offences].
No record was found of an incident in any correctional facility in which the applicant alleged he was stabbed, with a pen or otherwise.
A Sentencing Assessment Report ("SAR") was also before the sentencing court. The author had spoken with the applicant and his sister, and reviewed documentary records, including a pre-sentence report dated 2 November 2022 prepared by a NSW Corrective Services psychologist who had assessed the applicant. The applicant reported having been fully employed with a taxi service at the time of his arrest, and to have been involved in a relationship over the previous 16 years, the relationship ending with his arrest.
The applicant denied being sexually interested in children and disputed the agreed facts, telling the author of the SAR that they were "so far removed from what actually happened". He claimed to have had a friendship with one of the complainants in which he tried to provide emotional support for him, believing that the complainant had a hard home life. The author thought the applicant's insight limited, with the applicant unable to comprehend the consequences of his conduct: "I don't know what the impact has been on them". A psychological assessment placed the applicant as posing an above average risk of sexual recidivism. Although the applicant had been recorded as self-harming when first transported to a prison, he denied that he had tried to harm himself. He provided an "inconsistent" history of substance use and, by reference to notes taken by the psychologist who assessed the applicant in November 2022, an inconsistent personal and mental health history.

The Subjective Case

The applicant did not give evidence. He relied upon reports from a Forensic Psychologist (Exhibit or "Ex" 1), letters of support from family members, an odd document written by him complaining of having been sexually abused as a child by a (deceased) prominent person and his unnamed associates (Ex 4); another lengthy handwritten document in which the applicant set out his life history (Ex 5); and records from Justice Health.
The psychological report was prepared for the purposes of presentation in evidence on sentence. It was based upon the applicant's self-report of his life and circumstances in discussion with the author, Bradley Jones, and in two long handwritten documents provided to Mr Jones by the applicant. On the basis of that self-report and the administration of assessment instruments, Mr Jones stated that the applicant was suffering from a psychiatric disorder, Post Traumatic Stress Disorder ("PTSD"). [6] He also thought that the applicant may have Attention Deficit Hyperactivity Disorder ("ADHD").
To Mr Jones, the applicant "admitted his offending" and, in contrast to his statement to the author of the SAR, described the agreed facts as a "relatively accurate summary", whilst still disputing some detail. The applicant claimed that his exchanges with the complainants had been in pursuit of friendship, and he had "not processed" their young ages, rather, regarding them as friends of his own age. He stated that he and his "friends" exchanged masturbation videos and photos in a spirit of "humorous fun", and the money and communications devices he gave his friends had been "good deeds" not done in the expectation of receiving anything in return. He acknowledged that his conduct was wrong because "I turned 18. If he was over 18, it wouldn't be wrong […] It was reciprocal between us".
The applicant described a positive family life growing up in the Newcastle area with supportive parents, four siblings and a half-sibling, all of whom remained supportive of him. The applicant said that his arrest had caused him to disclose that, despite the benefit of a caring family, as a 9 year old child he had been sexually assaulted and then "trafficked" to a "paedophile ring", thereafter being repeatedly sexually abused by its members until he was aged 15. At that age, the applicant said that he was too mature to be appealing. During these years he said that he was plied with drugs and alcohol, drinking regularly from 9 years of age, and taking drugs from age 10 years. The applicant said that his abusers obtained his silence by threatening to harm his family if he revealed their wrongdoing. During the period of abuse the applicant maintained regular schooling and did reasonably well in his studies. He described having six intimate relationships from his teenage years until arrest, all of which were said to be loving and happy.
The applicant gave a highly detailed account of the sexual abuse he said he had suffered as a child from "well known socialites within Sydney", including acts that amounted to torture, and which occasioned injury. The applicant claimed that he and other victims of the Sydney socialite paedophile ring went to police some years before and made formal complaints, but the police refused to investigate. He claimed that, more recently, he had been contacted by police from Kings Cross Police Station who were now investigating his allegations. He gave Mr Jones an account of having been sexually assaulted at the Hunter Correctional Centre, giving a description of what had occurred. [7] He also said he had been stabbed by another inmate.
Mr Jones thought that the applicant was of average cognitive functioning. In answering assessment questions, the applicant reported experiencing a "severe level of anxiety and depression", with symptoms including loss of appetite. He also reported intrusive thoughts and nightmares about the claimed abuse.
Mr Jones accepted the history of years of sexual abuse as a child that the applicant gave him and concluded that, because of the applicant's experience, "it is reasonable to indicate his understanding of offending is on a distorted understanding of sexual abuse". The applicant believed that his conduct was "a non-event", merely mutual masturbation between friends, even complaining that he was "manipulated" into the offending by "some of the victims" threatening suicide if he did not act as he did. Mr Jones suggested: "It is reasonable to posit Mr Hockley's offending is associated with his history of child sexual abuse, his own memories and experiences associated with child sexual behaviour with his peers at a young age, and his familiarity and friendship he developed with the victims."
Mr Jones assessed the applicant as posing an average risk of sexual recidivism.
Letters from the applicant's father and sister spoke positively of him as a generous person. Neither mentioned any trauma experienced by the applicant in childhood, incidents of childhood self-harming, or any attendances by the applicant upon therapists or psychiatrists in those years.
Exhibit 4 is a lengthy and extremely explicit account of acts of sexual abuse that the applicant asserted commenced when he was aged 9. He asserts that his abusers filmed him in various acts and posted the footage on "Yahoo and MSN chatrooms", such posts being known to Yahoo and Microsoft, but not regulated or stopped by those companies. He claimed to have become something of a "child porn" star with many "fans". Through his popularity online, the applicant said he was "interviewed" for "suitability" to give "private shows" to a "very powerful man". The interview being successful, the applicant said that he was told he would be contacted online when he was required, and a car would be sent from Sydney to Newcastle for him. He was told to tell no-one, or he and his family would be hurt. The applicant went on to describe "some of the worst stuff to explain the extent of what I had to endure", all of which was filmed by the men for broadcast online. Thereafter the applicant described numerous incidents when he was forced to do "LITERALLY EVERYTHING" by members of the paedophile group, including the prominent individual he named (who is now dead). He referred to some 60 men as having "used" him in these years. He claimed to have obtained CDs containing some of the recordings of him and other boys being assaulted and provided the discs to police with detailed statements. In contrast to what the applicant told Mr Jones - that is, that police would not investigate his allegations - he wrote in his notes that "we never got true justice" because the prominent individual died before charges could be laid against him. The applicant said that he was in a "regressive state mentally" which became worse "the longer I stay in jail". He posited: "I tend to put alot of effort into teenagers who suffer from problems with mental illness or who are otherwise disenfranchised. My only guess is that its due to all the shit I went through myself."
The second document, Ex 5 in the sentence proceedings, was a 16 page account of "new points" that the applicant said he recalled after writing the document which became Ex 4. In this document the applicant asserted that, as a child, he had consulted many "therapists and psychiatrists", each of whom diagnosed him with a different disorder. He went on to describe a process by which he dispensed with "Adam", "leaving him behind to fester and rot", and became "Tyler". There followed a very explicit account of years of "rape and torture" that the applicant claimed to have endured, and complaints about the police who did nothing to investigate the abuse, but "corruptly" arrested him for "buying a teenager a sandwich". He claimed not to understand what "grooming was" and asserted that, had he wanted "sex" with the complainants, he had "ample opportunity". He disputed having produced child abuse material, saying that the police "misrepresented" the situation and he had never intentionally recorded the complainants. Many pages in this vein follow, with the applicant asserting he was "still that 13 year old but completely dead inside [who has] to deal with this fucking bullshit on top of that which has brought everything from my past right to the forefront of my mind, no support, no therapy, just 16 fucking months of remand".
The balance of the document is a complaint about his allegations of sexual assault within the prison system not being investigated and denying him justice. Consideration of the negative consequences of imprisonment for his mental health follow.
There were numerous references in both Exs 4 and 5 in which the applicant denied or disputed the charges to which he had pleaded guilty.
Notes from the applicant's Justice Health file (Ex 6) include a lengthy entry from 18 January 2021 recording the applicant's assertion that he had regularly self-harmed since the age of 12 years, although he had never seen a specialist and had no diagnosis. He claimed to want to "slam his head against a bolt" but also denied any intention of self-harming. A "Risk Intervention" document of the same date records the applicant as unable to "guarantee his own safety".
Notes of 19 January 2021 record the applicant as "First time in custody" and "MH [8] issues", although elsewhere there is the notation: "Unclear if has mental illness or odd personality…. P[atien]t makes strange statements. States head butts "I like the smell of blood" "I need to sleep … make myself dizzy" "My parents think I'm fun" "I'm detached from my body because I'm bored and watch cartoons" Unusual speech - odd prosody".
A month or so later, on 19 February 2021, the applicant told Justice Health staff that he had "seen mental health from 16" although any diagnosis was described as "unclear". He complained about the proceedings against him, claiming that he had been "helping a 13 y.o. with transgender issues". He said the charges were unfair and would likely be dismissed.
The reported sexual assault is noted in an entry to the Justice Health file on 9 May 2021 when the applicant complained that "another inmate forcibly performed oral sex on him and forcibly tried to insert his finger into his anal area". No injuries were noted, although the applicant said that the incident was "bringing back" "previous assault of rape as a child". Another entry on this subject, on 12 May 2022, recorded more explicit (and inconsistent) detail of the alleged sexual assault, alleging oral intercourse and completed digital-anal penetration.
30 June 2022 appears to be the earliest date upon which the applicant "informed JH that he is a transgender", with the applicant asserting that he had previously received oral hormone treatment and intended to have gender re-assignment surgery on release from custody. The author of the note recorded: "JH are unable to locate any progress notes, alerts, ROI's or medical history to support patient's claim of being transgender?"
An entry of 7 July 2022 recorded the applicant's self-report of having "started to identify as transgender" 5 or 6 years previously and taken unprescribed hormones for a time prior to entering custody. The applicant said that he did not raise his transgender with NSW Corrective Services or Justice Health upon entering custody because no-one had asked about it. The applicant said that, because of transgender status, a single cell and private showering facilities should be made available to him.
The applicant contracted the COVID-19 virus on 17 July 2022. On 29 July 2022, he complained of testicular "lumps", though without pain or discomfort. An appointment was made for the applicant to have imaging undertaken to assess the problem, but the material tendered to the sentencing court contains no further relevant entries as to the outcome. During the sentence hearing the court was told from the bar table that the imaging had not proceeded.

The Proceedings before the Sentencing Court

On 16 February 2023, the evidence was tendered before the sentencing court. The applicant's representative clarified what would otherwise appear to have been a traversal by the applicant of his pleas in some of the evidence, noting that the applicant's rejection of some aspects of the facts referred to an earlier version of the alleged facts and not that which was before the court. The comments in the handwritten documents, Exs 4 and 5, that traversed the pleas were not relied upon by the applicant. The sentencing judge was understandably concerned by that course, and raised it with counsel: "HER HONOUR: Why do you put them before me and create this difficulty? PETRUSHNKO: Your Honour, we're under instructions to hand this up to your Honour. HER HONOUR: You might be but can I confirm with you, why are you under instructions to provide me with material that says he's not guilty of the substantive count? Why would he want those instructions to go before me? PETRUSHNKO: Your Honour it's the document in its entirety that we've handed up but I take your Honour's point. HER HONOUR: What I'm not comfortable with is that you're trying to put material before me that says he's not guilty of it and he's been forced to effectively plead guilty. So, I need to be very sure that you have instructions to confirm a plea of guilty and he's not attempting to resile from his plea of guilty, because I must treat him as having done the acts that he's pleaded guilty to doing. PETRUSHNKO: Of course, your Honour. Your Honour, I can confirm that both my instructing solicitor and I have received both written and oral instructions in the terms of Mr Hockley maintaining his plea to the five counts on the indictment, your Honour."
The applicant was asked to confirm the pleas of guilty previously entered and did so. Ultimately, the applicant sought an adjournment because of the contradictory and unsupported material tendered on his behalf, and the uncertainty as to the use the court was to be asked to make of it.
The matter next came before her Honour on 12 April 2023. Although it is not entirely clear from the transcript of the proceedings, it appears that some of the more troubling material, including over four hundred pages of Justice Health notes, was not relied upon, with 28 pages of such notes tendered and becoming Ex 6 on sentence. These notes were relied upon to demonstrate hardship in custody on the basis that the applicant was more isolated due to the claim of transgender status. The sentencing judge raised what she referred to as "testicular cancer", presumably the testicular lumps the applicant had said he had, and invited the applicant's counsel to obtain evidence as to the lack of investigation undertaken by Justice Health. Counsel responded that he had specific instructions not to seek such evidence. As this issue was debated, the applicant called out from the dock that he also suffered from a hernia. No evidence was adduced to support that assertion.
In the extracted pages from Justice Health, not part of Ex 6, the Crown was able to find a record evidencing an examination of the testicular lumps of which the applicant claimed. The examination had shown that no abnormalities were seen.
The applicant had formerly sought to claim a benefit on sentence pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for his asserted "assistance" to authorities concerning his complaint of childhood sexual abuse but withdrew that contention.
Although the Crown urged caution on the sentencing judge in submissions, suggesting that the applicant's claims may not be reliable, her Honour was of the view that, whilst the detail may not be established on balance, as it would be an "odd thing" to fabricate claims of child sexual assault, she could accept that the applicant had been the victim of such abuse, and thus that moral culpability for the applicant's crimes was diminished.
The matter was adjourned for sentence until the following day, 13 April 2023. Overnight, her Honour's Associate provided the parties with the chapter from the "Bugmy Bar Book Project" which discussed child sexual abuse and its relevance to sentence. The sentencing judge confirmed with the parties prior to giving judgment on 13 April 2023 that neither objected to her Honour having regard to it in determining the sentence to be imposed. Her Honour observed that it "effectively support[ed]" the report of Mr Jones.

The Remarks on Sentence

In giving judgment, her Honour set out the offences and the maximum penalties for each offence, including those on the three Form 1 documents. She referred to the early pleas of guilty and noted that a 25% discount on sentence would be allowed. The facts drawn from the agreed statement were set out.
Her Honour acknowledged the content of the VIS and observed that she was required to give weight to the trauma occasioned by childhood sexual assault, which could be long-lasting and effect the whole of an individual's life. She referred to the principles of sentencing applicable to offences such as those before the court.
As to the objective gravity of the offences, the offence contrary to s 66C(1) of the Crimes Act was assessed as falling below the mid-range of seriousness, but not towards the bottom of the range. The grooming offence concerning WH, described as "textbook grooming" by her Honour, was assessed as mid-range, whilst that involving BH and ZB was just below the mid-range. The possession of child abuse material offence was placed as "below the mid-range but not at the bottom of the range". No issue is taken by the applicant with these assessments.
The subjective case was described by the sentencing judge as complex. Her Honour referred extensively to the report of Mr Jones and the history the applicant gave to him of childhood sexual abuse. She noted that: "The psychologist cited various studies that identified a correlation between being a victim of child sexual abuse and later committing child sex offences. However, the psychologist stated that the relationship cannot be said to be causal, rather the research has found that victims of sexual abuse and contact are more likely to be sex offenders at some point than persons who are not subject to abuse. The psychologist thereafter stated it was reasonable that the offender's criminal conduct is associated with the history of child sex abuse and the offender's memories and experiences associated with child sexual behaviour with peers at a young age and familiarity and friendship developed with the various victims. The psychologist indicated that the offender posed an average risk of sexual recidivism and diagnosed the offender with post-traumatic stress disorder and symptoms consistent with ADHD and recommended cognitive behavioural therapy and corrective services sex offender therapeutic programs."
The sentencing judge was prepared to accept on balance that the applicant was subject to child sexual abuse, although she suggested that other aspects of the history, such as the supposed stabbing in custody, "may need to be treated with some circumspection". Referring to the Bugmy Bar Book that the court had sent to the parties, her Honour said: "That takes me to what is to be made of that material on sentence. I have marked for identification the chapter on Childhood Sexual Abuse produced by the Bar Book in November 2019 which further corroborates the opinion of the psychologist. That Bar Book Project chapter makes reference to the Australian Institute of Family which indicates that children who have been exposed to sexual abuse have been found to suffer from increased risk of drug and alcohol dependence, to suffer from various anxiety disorders and are also found to be at greater risk of engaging in risky behaviours, particularly risky sexual behaviours, during adolescence and in adulthood, and are less able to cope with sexual impulses and may develop lifelong difficulties tolerating or regulating distress, behaviour and impulses and have greater difficulty in managing interpersonal relationships."
Her Honour noted the information before the court from Justice Health as to the applicant's assertion of transgender status and observed that Justice Health had referred the applicant for treatment. NSW Corrective Services had placed the applicant in a single cell with private showering arrangements.
The applicant was noted to have limited insight and thus her Honour was unable to make a positive finding as to future offending, or to conclude that the applicant was remorseful. There was a favourable finding as to moral culpability, with the sentencing judge accepting that the applicant had experienced childhood abuse, and that abuse contributed to the present offending. She concluded: "I find that the offender's background has made her more prone to commit offences impacting upon her moral blameworthiness, taking into consideration her capacity to perhaps fully understand the wrongfulness of her behaviour or to control her offending to the extent somebody who had not have been so exposed might have been able to. Her reduced moral culpability has a concomitant impact upon the application of sentencing principles. The principle of general deterrence is diminished to a degree, but not completely. Specific deterrence continues to have some application in that the offender must know regardless of her own thoughts about this kind of behaviour that such conduct will be met with condign punishment. However, given the offender is still reasonably young, in her early 30s, and as I have observed does present as somebody younger than her years, rehabilitation must play a part in her sentencing and she must be required to participate in treatment. She is not an unintelligent person and if she is open to it, may be able to escape from some of the demons in her own past to ensure that she does not reoffend. Protection of the community clearly still plays a part in the process of instinctive synthesis and the different sentencing considerations that may point in different directions."
The sentencing judge made a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act and varied the ratio of non-parole and parole periods favourably to the applicant, such that the former was 59% of the total sentence. The finding was based upon hardship in custody due to gender transition, the applicant's experience of greater restrictions during the pandemic, and the need for an extended period of treatment.

The Proposed Appeal

Although the applicant has advanced three proposed grounds of appeal, the grounds can be dealt with collectively since grounds one and two are properly sub-grounds of the overarching complaint of manifest excess, which is the subject of ground three.
The applicant contends that the indicative sentences given for sequences 2, 29, and 30 are erroneously high and, when further error in the degree of accumulation of the indicative sentences is added to the mix, the aggregate sentence is manifestly excessive. To some extent the applicant relies upon sentencing statistics, whilst conceding that there are no statistics for offenders with the same parameters as the applicant.
The reliance on statistics to make good the claim of manifest excess is rather hollow in circumstances where statistics for offences of meeting a child groomed for sex (sequence 2) and grooming a child under 14 years (sequences 29 and 30) reflect a tiny number of cases, none of which encompass an offender sentenced for five distinct offences with three further offences on Form 1 documents. This Court has repeatedly described sentencing statistics as a blunt tool against which to evaluate the correctness of a sentence; in this instance statistics might be regarded as so blunt as to be obtuse. They do not support the applicant's argument.
The applicant's overall contention of the imposition of an unjust sentence can, in my opinion, be quickly dismissed simply by objective consideration of the nature of the offences and the maximum penalties and any SNPP applicable, and the commission of separate offences against three children, whilst having regard to the many conclusions made by the sentencing judge that were favourable to the applicant.
Sequence 2 was an offence which carried a maximum penalty of 15 years imprisonment with a SNPP of 6 years. It was assessed by her Honour as an offence falling at the middle of the range of gravity. The indicative sentence, reflecting the active pursuit of a 13 year old boy whom the applicant knew to have mental health issues and thus be especially vulnerable to adult exploitation, was 2 years with a NPP of 14 months. In no sensible assessment could such an indicative sentence be regarded as unfair or unjust.
Similarly, for sequences 29 and 30, the maximum penalty specified by the legislation is 12 years imprisonment with a SNPP of 5 years. These offences were each considered to fall just below the mid-range in terms of their respective gravity. Indicative sentences of 26 months with a NPP of 15 months (sequence 29) and 26 months with a NPP of 16 months (sequence 30) were very modest. The adjective "unjust" cannot properly be applied to such modest indicative sentences.
For the offences before the sentencing judge and noting the offences to be taken into account on the three Form 1 documents, the aggregate sentence imposed was, in my conclusion, a very generous one against which no legitimate complaint could be made by the applicant. That is even more the case since the offences involved a course of conduct over a period of many months that involved three separate children; this required a degree of notional accumulation of sentence to reflect the separate criminality involved in targeting each child: Cahyadi v R [2007] NSWCCA 1.
Every possible finding that could be made in the applicant's favour was made, and the sentences were clearly substantially mitigated because of those positive findings. Despite the contradictory and inconsistent evidence offered by the applicant, and in the face of evidence which actively cast doubt upon many of the applicant's claims her Honour was prepared to accept most of the unsworn and entirely unsupported assertions made in the subjective case, and to mitigate sentence because of them. Bearing in mind the degree of caution with which self-serving assertions should be treated by sentencing courts, that approach was generous: R v Qutami [2001] NSWCCA 353 at [58]-[59]; R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]-[25].
Significantly, her Honour appears to have accepted the applicant's claims of prolonged and severe child sexual abuse despite the evidence that strongly pointed to a conclusion that these claims were unreliable and perhaps even fantastical. In doing so, her Honour did not refer to the assertion said to have been made by the applicant to the inmate accused of the sexual assault of the applicant, in which an intention to fabricate a claim of sexual assault with the specific intention of receiving a better sentencing outcome was announced. Nor did the judge refer to the numerous factual features that tended to cast doubt upon the veracity of the claims. She accepted the history, and on that basis, the opinion of Mr Jones was given significant ameliorating weight with little weight apparently afforded to general deterrence.
Her Honour was prepared to treat the applicant as a "young offender" and thus to give greater weight to rehabilitation in accordance with the principles applicable to sentencing children and young people, even though the applicant was 33 when he committed these crimes, and 35 when sentenced.
Despite the complete lack of insight and remorse, and the applicant's claims in the handwritten documents blaming his victims for what had occurred, the sentencing judge was prepared to make a finding of special circumstances and significantly vary the ratio of the sentence imposed. That favourable conclusion was reached even though there may be little more than a "pious hope" that the applicant will make positive use of the additional supervision in the community: R v Carter [2003] NSWCCA 243 at [19].
In short, the applicant was afforded considerable leniency for very serious and destructive child sexual offending.
Although the absence of merit in the application would suggest that leave to appeal should be refused if, for no other reason than to ensure finality, I would grant leave to appeal but dismiss the appeal.

proposed orders

I propose that: 1. Leave is granted to appeal; 2. The appeal is dismissed.

Endnotes

A shortform of "laughing out loud".
All Snapchat communications are rendered as written in the original.
A shortform of "laughing my arse off".
A shortform of "as fuck".
A shortform of "I don't care".
It is not clear if Mr Jones, a psychologist, had the qualifications to diagnose a psychiatric disorder.
I do not propose to set out the details the applicant gave. However, they bore little relationship to the complaint of sexual assault at Cessnock that the applicant made to NSW Corrective Services and police.
Mental health. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2023

At a glance

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Judgment (11 paragraphs)

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Legislation Cited (4)

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