R v BL

Catchwords: CRIME — SENTENCING — sentence following guilty verdict — child sex offences — sexual intercourse with child <10 — attempt sexual intercourse with child < 10 — indecent assault child < 16 — intentionally sexually touch child < 10 years
SENTENCING — subjective considerations on sentence — special circumstances — mental health — onerous bail conditions

Legislation Cited: Crimes Act 1900 (NSW), ss 66(1), 66C(2)
Crime (Sentencing Procedure) Act 1999 (NSW) ss 21A, 54A

Cases Cited: R v Olbrich (1999) 199 CLR 270
R v Storey [1998] 1 VR 359

Category: Sentence

Parties: Rex, BL

Representation: Counsel:
R Suters (Offender)
K MacKenzie (Crown)
Solicitors:
Legal Aid (Offender)
Solicitor for Public Prosecution (NSW) (Crown)

File Number(s): 2023/00190171

Publication restriction: Pursuant to Section 15A of the Children (Criminal Proceedings) Act 1987 there is to be no publication of names, information, material or evidence that identifies or is likely to lead to the identification of any child or witness involved in these proceedings.
A non-publication order is in place in relation to the defendant’s name.

JUDGMENT

1. The offender is to be sentenced with respect four child sex offences following a trial and guilty verdicts. The offences were committed against his nephew EL when he was aged between 6 and 11 years of age. The offender was found not guilty on a separate offence.

2. The trial indictment verdicts of guilty were for the following offences:

3. Count 1 – Indecent assault person under 16 years of age (DV) contrary to s 61M(2) of the Crimes Act 1900. This offence carries a maximum penalty of 10 years imprisonment with a standard non-parole period of 8 years.

4. Count 2 – Intentionally sexually touch child under 10 years (DV) contrary to s 66DA(a) of the Crimes Act 1900. This offence carries a maximum penalty of 16 years imprisonment with a standard non-parole period of 8 years.

5. Count 3 – Sexual intercourse with a child under the age of 10 years (DV) contrary to s 66A(1) of the Crimes Act 1900. This offence carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years.

6. Count 4 – Attempt to have sexual intercourse with a child under 10 years (DV) contrary to s 66B of the Crimes Act 1900. This offence carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 10 years.

7. The maximum penalties for the offences act as a sentencing guidepost or reference point. Section 54A(1) of the Crime (Sentencing Procedure) Act 1999 (CSPA), provides that the standard non parole period is that which is included in the table of provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence that falls within the middle range of objective seriousness taking into account only the objective factors affecting the relative seriousness of the offence. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The fixing of a non-parole period is only one aspect of the task when determining what is an appropriate sentence.

8. Admitted on behalf of the Crown were the following:

9. C1 Indictment

10. C2 Agreed Facts on Sentence

11. C3 Criminal History

12. C4 Custodial History

13. Admitted on behalf of the Offender were the following:

14. O1 Psychological Assessment Report

15. O2 Bundle of clinical/medical reports including:

(a) Report of Anthony Weaver (clinical psychologist) dated 27 May 2025 (b) Report of Anthony Weaver (clinical psychologist) dated 19 February 2025 (c) Referral letter from North Nowra Medical Practice to Anthony Weaver dated 20 February 2025 attaching a G.P. Mental Health Care Plan.

Facts for sentence

6. The offender BL (born 1997) is the biological uncle of the victim EL (born 2009). The victim’s grandmother, LL, frequently looked after the victim for short periods, including some overnight stays. LL is the biological mother of the offender and of the victim’s mother.

7. Between 2011 and 2022, EL lived with his mother at an address in Thirroul. At the time they moved to that address, LL already lived in an adjoining unit. The offender and LL remained in that unit 2018. During that time, EL stayed at his grandmother's house on occasions, and on many of those occasions the offender was in the house, although he was often gaming in his room and usually did not interact with EL.

Count 1: Indecent assault person under 16 years of age (DV)

8. On an occasion in 2016, prior to EL's seventh birthday, he attended LL's unit in Thirroul at which time the offender was also residing there (aged 18). Around lunchtime EL was lying in a fold up couch in the living room watching television, when the offender came in and laid on the couch to the right of the victim. Whilst the two were on the couch together, LL left the kitchen area and went outside to have a cigarette. At that time, the offender pulled down EL's pants a short distance and began touching EL's penis with one hand. EL described the touching as “wiggling it and pulling it" with his hands which continued for approximately two minutes. LL re-entered the house and the offender immediately stopped and pulled EL's pants back up. The offender thereafter went to his bedroom. EL was confused by the touching and did not tell anyone what occurred.

9. Between late 2018 and April or May 2019, the offender and LL lived at an address in Nowra with LL's mother and uncle. During this time, EL stayed in that home on at least two occasions, the first being in late December 2018 and the second being during the April or June school holidays in 2019.

10. In January 2019, the offender began a relationship with TE, and in April or May 2019 the offender, together with LL, moved to a house in Shoalhaven Heads already occupied by TE.

Count 2: Intentionally sexually touch child under 10 years (DV)

11. On a date in 2018, following the EL’s ninth birthday (October 2018), EL was staying at the Nowra address with the offender and LL. Early in the morning, EL sat on a couch and began watching television. Sometime thereafter, the offender came into the room and asked the victim to “scootch over". EL sat up and moved so the offender could sit next to him, after which they watched television for approximately 10 minutes. At the time, the offender was approximately 21 years of age. The offender pulled EL's pants down with one hand and began touching his penis with his hand for approximate 4 or 5 minutes.

Count 3: Sexual intercourse with child under the age of 10 years (DV)

12. The Offender then began pulling EL upwards and suggesting that EL should put his penis into the offender's mouth. The offender pointed EL’s penis and then at his own mouth and said words to the effect of “just do it". Initially, EL resisted the offender, but eventually gave up trying to stop him. The offender began sucking on EL’s penis which he did for a short time and then stopped.

Count 4: Attempted sexual intercourse with a child under 10 years

13. The offender then pushed EL back down on the blanket and the offender pulled his own pants down. EL could see the offender's penis. The offender pushed EL’s head towards his penis with one hand, but EL resisted by pushing the offender away with one hand and pushing himself upright with his other hand. EL managed to get out from under the blanket. EL then heard a door open and recalled the offender pulling his own pants up and went into the kitchen. The offender then returned to his own bedroom. EL pulled his own pants up and went out the back of the house and did not speak to the offender for the remainder of the day. EL was confused and did not tell anyone what occurred on that occasion at the time.

14. EL first reported the offender's conduct in April 2023.

15. The offender has no prior criminal history.

Subjective material

Report of Dr Thomas Dornan – psychologist

16. Dr Dornan assessed the offender by way of audiovisual link on 21 March 2025. At the time of the assessment, Dr Dornan had available the Crown case statement and the various clinical records relating to the offender's previous treatment.

17. The offender told Dr Dornan that his parents separated when he was two and then he was primarily raised by his mother who suffered from depression and anxiety. His mother at times struggled with raising the offender but was always supportive. The offender's father was more absent, and despite regular access visits with his father, he was never particularly close. The offender described his mother as being physically present throughout his formative years but psychologically absent.

18. The offender described his childhood as relatively unremarkable although he always experienced anxiety. There were several episodes, when staying with his grandmother, where she would make the offender touch her while they were in bed together. However, the offender indicated he did not believe it had any significant impact on him in his childhood but may have contributed to his anxiety symptoms. Also, the offender experienced difficulties with social interactions in primary school and episodes of bullying in high school. As he progressed through adolescence he became more independent and had a larger group of friends.

19. The offender described himself as an average student who generally did as required. He left school at the end of Year 11 before seeking employment. However, the offender had experienced issues with employment due to his high levels of anxiety. His most recent employment was with Officeworks approximately two years prior to the assessment, however, he was unable to continue in that position due to his significant levels of anxiety.

20. The offender reportedly was under the care of a psychologist Mr Weaver who separately provided supporting documentation relating to the offender’s treatment.

21. The offender had a largely unremarkable history relating to alcohol and drug use. The offender had resorted to cannabis to assist with his anxiety symptoms although he had refrained from further use once formally medicated for his depression and anxiety.

22. The offender’s friendship group following COVID was non-existent, although he has continued in an intimate relationship with his present male partner who is 13 years his senior. Whilst the offender previously considered himself as bisexual, he described to the psychologist now being more interested in “people". The offender denied any paedophilic or hebephilic interests, claiming that he had never been attracted to children. This was also consistent with his denial of ever accessing child abuse materials. The offender was able to demonstrate insights into the impacts of sexual abuse, including from a psychological, emotional and social perspective. The offender maintained his innocence with respect to the alleged offending.

23. The offender described experiencing significant anxiety symptoms from early childhood as well as persistent depressive symptoms from early adolescence. The symptoms have caused him significant functional impairment.

24. Dr Dornan diagnosed the offender as suffering persistent depressive disorder and generalised anxiety disorder. These conditions will likely be a significant barrier to forming peer relationships as an adult.

25. On the Static–99R measure, the offender was assessed at a level III average risk category. However, Dr Dornan, by reference to dynamic risk factors, considered there was a further reduced risk of offending. Overall, Dr Dornan considered that the offender posed a low to moderate risk of sexual recidivism.

26. Dr Dornan considered that the offender’s developmental history presented several factors that “likely impacted his attainment of appropriate milestones of moral judgement formation". Further, the offender’s anxiety symptoms likely interfered with social skills development and peer relationships. Further, his restricted employment history suggested some deficits in psychosocial development. His depression in adolescence would have impacted his decision-making capacity during development which potentially impaired his ability to process social cues and develop appropriate boundaries with others, particularly children.

27. Dr Dornan believed the combined effect of the persistent depressive disorder and anxiety disorder likely created functional impairment. Further, it was likely to have restricted the offender's capacity to maintain relationships and receive social support crucial for psychological well-being. These conditions would also have likely influenced, although not eliminated, the offender's capacity for rational and moral decision-making during the period of offending. Further, those conditions potentially reduced the offender's ability to manage inappropriate sexual urges when experiencing heightened distress, thereby potentially compromising judgement regarding sexual boundaries. The offender’s potential cognitive distortions “suggest deficits in moral reasoning specific to sexual offending rather than general moral impairment". However, Dr Dornan noted that the offender’s academic functioning and capacity to maintain adult relationships indicated “intact general cognitive abilities in some capacity for appropriate rational functioning."

28. Dr Dornan believed the custodial environment would substantially exacerbate the offender's pre-existing mental health conditions. His continued denial of offending represented a significant barrier to treatment access.

29. As to his prospects of rehabilitation, Dr Dornan considered that the offender’s relatively low risk assessment improved his long-term prospects. Further, stabilised mental health would further enhance his prospects of rehabilitation. Whilst acknowledging the denial of the offences created some barrier to sexual offender treatment, successful rehabilitation could also be achieved through the pro-social attitudes and stable mental health. The offender’s long-term success in rehabilitation would be enhanced through accessing community support systems that did not necessarily require admissions of guilt. Various recommendations were made with respect to treatment.

Clinical reports and other records

30. The various reports, referrals and mental health care plans demonstrate that the offender was referred to Anthony Weaver, psychologist, in late 2024 and has remained under his care since with respect to extremely severe depression, anxiety as well as a generalised anxiety disorder with panic attacks. These conditions included suicidal thoughts.

Justice health report Dr Andrew Ellis, psychiatrist

31. The psychiatrist provided a report limited to a review of the offender’s clinical records relating to his previous treatment. It was noted that there was no facility available to conduct a full assessment on the offender given he remained in the community. Dr Ellis noted that antidepressant treatment was available in custody although the offender’s further sedative medication was not available. Rather, behavioural techniques were available in custody to improve sleep and provide alternatives to such medication. It was noted that counselling from mental health nurses or psychologists was available as was suicide prevention interventions. The offender would be able to access his current psychologist through audiovisual contact and the offender may also be provided offence specific therapy groups through corrective services.

Submissions, findings and sentence determination

32. In assessing the objective seriousness of offences involving sexual activity there is no particular hierarchy of sexual acts. That said, some forms of sexual activity may be regarded as more serious than others, and in assessing objective seriousness, it is necessary to consider the context in which the offending occurred.

33. Whilst the Crown identified the relevant features of each of the offences for the purposes of assessing objective seriousness, no specific submission was made as to the objective seriousness of each of the offences.

34. I am satisfied that each of the offences were committed for the offender’s sexual gratification, directed towards EL, who was variously aged between 6 and 9 at the time of the offending.

35. With respect to count 1, the victim was aged 6, being well below the age threshold of 16 for the offence. The offender at the time was aged 18, with an age difference of approximately 12 years. The offending involved the offender pulling EL’s pants down a short distance before touching EL’s penis for a relatively a short period of approximately two minutes. The offending was opportunistic with the offender taking advantage of EL’s grandmother (the offender’s mother) leaving the immediate precincts of the home for a relatively short period. Whilst at the time of the offending the offender did not have responsibility for the care of EL, the offender was in a position of trust with respect to him. The offending took place in the home of the offender and EL’s grandmother, being a place where EL was entitled to feel safe. The offending was in no way accompanied by any threats or force. I am satisfied that this offence falls just below the mid-range of objective seriousness.

36. Given counts 2, 3 and 4 occurred on the one occasion, there are common features to each of these offences for the purposes of assessing objective seriousness. The victim was aged 9, being just below the age threshold (10 years) for this offence. The offender at the time was aged 21, with an age difference of approximately 12 years. The offender was again in a position of trust as an adult uncle of EL’s. This offending occurred at the home of EL's great-grandmother where he was temporarily residing, being a place where he was entitled to feel safe. The offending was opportunistic in that EL happened to be on the lounge in the home in the early hours of the morning watching TV when the offender sat down next to him. Self-evidently each of the offences were not isolated acts.

37. With respect to count 2, the offending involved the offender pulling EL’s pants down with one hand and touching his penis for approximately 4 to 5 minutes. I am satisfied that this offence falls just below the mid-range of objective seriousness.

38. Count 3 involved the offender engaging in an act of fellatio on EL’s penis for a short period. The offending did involve the offender directing EL to participate in the act. There was some initial resistance by EL before the act occurred. I am satisfied that this offence falls towards the lower range of objective seriousness although it could not be categorised at the low range.

39. Count 4 involved the offender pushing EL under the blanket and pulling his own pants down. The offender pushed EL’s head towards his penis with one hand, who resisted by pushing the offender away with one hand and pushing himself upright with the other hand. I do not accept the Crown's submission that the use of force was a statutory aggravating factor pursuant to s 21A(2)(b) of the CSPA. I accept counsel for the offender's submission that the relatively brief and modest use of force in pushing EL’s head towards the offender's penis fundamentally constitutes the relevant act of attempt and should therefore not be separately considered as a statutory aggravating factor. I am satisfied that this offence falls just below the mid-range of objective seriousness.

40. The Crown quite properly concedes, as a mitigating factor, that the offending was not planned. I accept this was the case, and to the contrary, the offending was more spontaneous and opportunistic.

41. Self-evidently, the offender does not have any record of previous convictions, and at the sentence hearing, the Crown withdrew its submission that s 21A(5A) of the CSPA applied in that the offender’s prior good character assisted him by enabling him to continue offending. However, the Crown contended that his lack of criminal record was of limited use when considering good character, submitting that the offender demonstrated a pattern of repeated offending that was contrary to a claim of leniency due to good character that would otherwise have been available: RS v R [2013] NSWCCA 227. Counsel for the offender properly conceded that the weight to be afforded to his prior good character (count 1) and lack of criminal record would be diminished by the fact the offending was not an isolated act and was engaged in for the purposes of sexual gratification: R v Hermann (1988) 37 A Crim R 440; Ryan v The Queen (2001) 206 CLR 267 at [174] - [178].

42. The circumstances of the offender at the time of the offending are clearly distinguishable from the circumstances of the appellant in Ryan. Consistent with the submissions of the parties, the offender’s lack of criminal record is of limited relevance as a mitigating factor given the offending involved repeated acts committed against EL spanning several years.

43. I have carefully considered the report of Dr Dornan including the personal history of the offender, which I accept. It is clear that the offender was raised in circumstances of a physically and emotionally absent father. I accept the whilst the offender’s mother was physically present and did her best to support the offender in his childhood and adolescent years, she was psychologically absent given her own struggles with alcohol and cannabis when the offender was younger, and her own experiences of depression initiated with the offender’s birth.

44. Whilst it was only more recently disclosed, I accept that the offender’s experiences of inappropriate behaviour by his grandmother as a child did have an impact upon him and was likely to have contributed to his symptoms of anxiety. I accept that the offender has battled since a very early age with significant symptoms of anxiety and depression in later years. The offender has continued to experience significant symptoms arising from these conditions requiring prescription medication and ongoing psychological support and therapy.

45. As traversed with counsel for the offender on the sentence hearing, there are many aspects of the opinion of Dr Dornan which would seem to be largely speculative. As much was fairly conceded by counsel for the offender, conceding that the evidence did not enable the offender to contend that his mental health conditions materially contributed to his offending behaviour.

46. I accept the following submission made by counsel for the offender which very fairly reflects the essence of Dr Dornan's opinion and its relevance in the sentencing exercise:

"Whilst the conditions may have affected [the offender’s] capacity to make rational and moral decisions and potentially compromised his judgement regarding sexual boundaries, any reduction in moral culpability would be negligible given Dr Dornan opines that the offending behaviour likely reflects distortions regarding sexual behaviour with children rather than any global impairment in moral reasoning at the time of the offending."

47. I accept that the offender’s diagnosed conditions of persistent depressive disorder and generalised anxiety disorder will result in the offender experiencing a more difficult period in custody than would otherwise be the case. Indeed, this has already been demonstrated by the fact that one of the two medications prescribed for his treatment is not available in the custodial setting, necessitating the offender having to alter his prescription regime in preparation for his incarceration. Whilst the report of Justice Health acknowledges treatment and support will be available for the offender whilst incarcerated, self-evidently he will not have available the suite of treatment to which he would otherwise access in the community and will also be denied the support of those to whom he is particularly close.

48. I accept the opinion of Dr Dornan, for the reasons traversed in his report, that the offender has a low – moderate risk of reoffending. The offender has not previously been convicted of any like offences. On the history provided to Dr Dornan, there is an absence of any deviant sexual or paedophilic interests, which I otherwise accept.

49. The Crown contends that the offender’s failure to accept the finding of guilt, and his continuing denial of the offences potentially denies the offender access to sex offender programs, being a matter of some concern in determining the prospects of rehabilitation. Whilst it must be acknowledged that rehabilitation would be enhanced by an acceptance of guilt, and a willingness to address underlying issues leading to the offending, that does not equate to poor prospects of rehabilitation. As Giles JA observed in Alseedi v R [2009] NSWCCA 185, there can be rehabilitation without confession and offenders found guilty after trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt.

50. I accept the submission of counsel for the offender that despite his denial of the offences, there remains reasonable prospects of rehabilitation given his lack of criminal history, the absence of any drug or alcohol issues and the fact that at the moment the offender is in a long-term and supportive relationship as well as having the support of his mother who has been ever present through the trial and sentencing proceedings. Further, the offender clearly has the support in the community and accommodation upon his release. His underlying mental health issues have been and will continue to be addressed. Further, the offender has expressed his willingness to attend appropriate therapy.

51. General deterrence and denunciation have a significant role to play with respect to sexual abuse perpetrated on children. As Hoeben CJ at CL observed in EG v R [2015] NSWCCA 21 at [42] (with whom Harrison J and RA Hulme J agreed):

“General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment."

52. The courts have consistently recognised the harm inflicted on children that are victims of sexual abuse. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 the Court observed at [110]:

“… that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”

53. The significant impact on children of the trauma of sexual abuse on them is now statutorily enshrined in s 25AA of the CSPA. The absence of a victim impact statement does not equate to drawing an inference that the victim has not been impacted by the offending.

54. Considering the other purposes of sentencing provided in s 3A of the CSPA, the sentence which the court intends to impose will ensure that the offender is adequately punished for the offences and will make the offender accountable for his actions.

55. I am satisfied that a finding of special circumstances is justified which will meet the further purposes of sentencing in promoting the rehabilitation of the offender. The offender is presently aged 27, with no prior criminal record, who will be experiencing full-time custody for the first time. Consistent with my findings, the offender is suffering from mental health conditions which will significantly impact his time in custody. Further, it is appropriate that the offender be afforded every opportunity to access appropriate professional support in the community for his underlying mental health conditions in conjunction with the support of those close to him.

56. I am satisfied that the s 5 threshold has being crossed and no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the court to invoke s 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have otherwise been imposed.

Indicative sentences

57. With respect to Count 1, indecent assault person under 16 years of age, an appropriate indicative sentence is 2 years’ imprisonment with an indicative non-parole period of 15 months.

58. With respect to Count 2, intentionally sexually touch child under 10 years, an appropriate indicative sentence is 3 years’ imprisonment with an indicative non-parole period of 1 year 10 months.

59. With respect to Count 3, sexual intercourse with child under 10 years, an appropriate indicative sentence is 5 years’ imprisonment with an indicative non-parole period of 3 years 1 month.

60. With respect to Count 4, attempt to have sexual intercourse with a child under 10 years, an appropriate indicative sentence is 4 years 6 months’ imprisonment with an indicative non-parole period of 2 years 10 months.

Aggregate sentence

61. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ); R v Brown [2023] NSWDC 477 at [90]).

62. It is also necessary, when determining the aggregate sentence, particularly where the involved similar criminal conduct, that there is not double punishment. As Bell P (as he then was) observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose punishment that is disproportionate to the overall criminality involved in the offences: R v Brown [2023] NSWDC 477 at [91].

63. In RA v R [2024] NSWCCA 149, the Court noted that "the severity of the sentence increases at a rate that is not linear in comparison with the increase in length. That is, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half the time".

64. There will need to be some accumulation in the aggregate sentence in circumstances where the offending occurred over a period of several years. However, each of the offences were committed against the same victim and Counts 2, 3 and 4 occurred during one discrete episode.

65. In all the circumstances, an appropriate aggregate sentence is 6 years imprisonment with a non-parole period of 3 years 8 months.

66. The offender spent a total of seven days in custody and accordingly, the commencement date for the sentence will be backdated reflecting this period.

67. Since 18 February 2025, following the return of guilty verdicts, the offender has been subjected to strict bail conditions, in effect amounting to a house arrest. This included the offender only being permitted to leave his home within set hours in very limited circumstances (attendance on medical practitioner, psychologist, medicolegal professional or legal representatives). I accept that the offender has been subjected to curfew checks by police on three occasions after 12:00 AM.

68. I accept the submission on behalf of the offender that the bail conditions have resulted in a significant curtailment to his liberty during this period including the inability to leave the Nowra area and increased social isolation.

69. I accept that the grant of conditional bail, involving some restriction on a person's liberty, would not ordinarily constitute custody of a kind relevant to the imposition of a sentence: LA v R [2021] NSWCCA 136. However as was observed in R v Quinlin [2021] NSWCCA 284, mental health issues in combination with a lengthy period on conditional liberty may increase the burden of restrictive bail conditions.

70. I accept the offender's mental health conditions, traversed earlier in these remarks, would have increased the burden on the offender of the very restrictive and socially isolating bail conditions such that it should be reflected in a modest additional backdating of the sentence. The offender has been on strict bail conditions for a period of 171 days. I propose to backdate the sentence for period of 60 days in addition to the seven days the offender has spent in custody referable to these offences. Accordingly, the sentence will be backdated for a total of 67 days reflecting a commencement date of 2 June 2025.

Orders

71. I make the following orders:

72. The offender is convicted of the offences.

73. The indicative sentences are set out above.

74. The offender is sentenced to an aggregate term of imprisonment of 6 years commencing 2 June 2025 and expiring 1 June 2031.

75. I impose non-parole period of 3 years 8 months to expire 1 February 2029. The earliest date the offender is eligible for release is 1 February 2029.

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