R v Connell

Catchwords: CRIMINAL – Sentence – child sexual assault offences (x5) under s 66C sexual intercourse with a child between 10 and 16 years and (x1) under s 66DB(a) - sexual touching of a child between 10 and 16 years of age - Form 1 matters – incite child to sexually touch – uncharged acts – seriousness of offences – all occurring within a short period of time but after an extended period of grooming - subjective matters

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited: Bugmy v R (2013) 249 CLR 571
R v Fisher (1989) 40 A Crim R 442
R v Lau [2002] NSWCCA 131

Category: Sentence

Parties: Rex
Connell, John Robert

Representation: Counsel:
Defence: Mr E Renard
Solicitors:
Crown: Ms K Davidson; Mr L Dowling, ODPP
Defence: Mr M Dampney

File Number(s): 2024/00004072

Publication restriction: NPO in respect of the name or anything tending to identify the complainant in this matter.

JUDGMENT

1. HIS HONOUR: There are five offences for which the offender is to be sentenced which are contrary to s 66C(3) of the Crimes Act 1900. Each of those offences has available as penalty a term of imprisonment of ten years and there is no relevant standard non-parole period. In addition, he is to be sentenced in respect of one offence contrary to s 66DB(a) of the Crimes Act in relation to which the maximum penalty is ten years, and again there is no standard non‑parole period.

2. To two of the s 66C(3) charges there is a Form 1 attached and to the single 66DB(a) charge there is a Form 1 attached. Do I have all that correct?

DAVIDSON: Yes, your Honour.

3. HIS HONOUR: All right, thank you. Just for the accused’s benefit, I will indicate obviously that the charges which are provided by way of the Forms 1 do not get a separate sentence. They are simply taken into account when I sentence you for the offence to which they are attached. So, they are relevant, but they do not result in a separate penalty, and they are taken into account when dealing with you for the offence to which they are attached by increasing the weight to be afforded to specific deterrence and retribution, and they are also relevant to assessing your moral culpability.

4. The facts are agreed and are as follows.

BACKGROUND

1. The offender, John Connell, was born on 24 July 1975. There will be a non‑publication order in relation to the name of the complainant or any other evidence which might lead to her identification.

2. The victim was CO, date of birth 28 October 2008. The victim’s parents, MO and PW, are separated and the victim primarily resided with her father in a small New South Wales country town. She spent some weekends and school holidays with her mother, who lived at West Kempsey. The victim was diagnosed with mild autism when she was three years of age. She can read and write and does well with her schoolwork but struggles to develop friendships with people her own age.

3. The victim’s late paternal grandfather, NO, was in a de facto relationship with the offender’s mother. The victim referred to the offender’s mother as her “step-nan” and referred to the offender as her uncle.

4. In January 2020, the offender moved from Victoria to live with his mother and Mr NO in Port Macquarie. This was around the time when the victim first met the offender. She was 11 years of age. The victim formed a close friendship with the offender, and according to the victim’s father they would muck around together like siblings do. The victim spent a lot of time at Ms C’s and Mr NO’s house. She would go there whenever she wanted to.

5. On 5 December 2022, approximately 12 months prior to the present offences, the victim’s father saw the victim texting someone late at night. He asked who she was writing to and she replied, “John.” Her father asked to look at her phone and discovered what he thought were inappropriate messages from the offender. The messages said things like, “Hey sweetie” and “love you.” The offender had also sent the victim love heart emojis. The victim’s father used his own phone to send the offender a text that read, “I would appreciate if u stopped texting C as it’s a bit strange I think.”The offender replied, “##body.” That is, using the symbols for hash. The offender and the victim stopped texting for a while but eventually resumed sometime in 2023. They would call, text and send each other photographs of themselves.

6. Mr NO passed away in January 2023. After his death ,Ms C and the offender moved to Katherine Street, Port Macquarie. The victim continued to spend time with Ms C and the offender on weekends and during school holidays. When she slept over, the victim normally slept in Ms C’s bed but approximately around November 2023, she started sleeping in the offender’s bed with the offender.

OFFENDING

NOVEMBER 2023

7. Sometime towards the end of November 2023, when Ms C had some time off work, the victim stayed at Ms C’s house for a few days. The first day that the victim was at Ms C’s house, she was downstairs painting, when the offender asked her if she wanted to go upstairs. The victim said, no, not until after she finished painting. When she finished painting, the offender said he wanted to tell her something and took her by her hand and led her to his room.

8. The offender told the victim to take her pants off, which she did. She took her underwear off also. The offender also took his pants off. The offender kissed the victim on the lips and used his hand to “play with” and “wiggle” her vagina. His fingers were outside and inside her vagina (sexual intercourse with a child, Sequence 2). At the same time, the victim used her hand to rub the offender’s penis (incite child to sexually touch, Sequence 3, Form 1 offence). This continued until around midnight. Then they went and had separate showers before both going to sleep in the offender’s bed.

9. The following day, the victim, the offender and Ms C did some Christmas shopping at Kmart at Port Macquarie. When they got home, the victim wrapped the presents. At around 6pm, the victim and the offender were laying in his bed playing games on their phones and iPads. The offender went to have a shower, and the victim fell asleep. The offender came back from his shower and got back into bed. He pulled the victim over to him and kissed her on the lips. The victim woke from her sleep at around 8.30 or 9pm. By this time, the offender was asleep, so she put the TV on.

10. The victim woke at around 10pm. The offender and the victim kissed, “rolled over each other” and “played with” each other’s genitals. The offender said to the victim, “Take your pants and shirt off,” which the victim did. The offender was also naked. They began kissing each other. At one point the offender asked the victim to scratch his toe. She scratched him and laid back down. The offender then used his big toe to play with the outside of the victim’s vagina (sexually touch child, Sequence 18). At another point when the victim was laying on top of the offender, she used her hands to “play with” the offender’s penis (incite child to sexually touch, Sequence 6, Form 1 offence).

The incident ended when the offender went to the toilet and the victim fell asleep in the offender’s bed. When the offender came back from the toilet, he dressed the victim in her dressing gown and then fell asleep in the bed next to her.

11. On the third night that the victim stayed at Ms C’s house, the same thing happened again. The offender and the victim kissed, and the offender used his hand to “play with” the victim’s vagina both inside and outside (sexual intercourse with a child, Sequence 8). The victim was also playing with the offender’s penis (incite child to sexually touch, Sequence 9, Form 1 offence). This went on for about three hours and ended when the offender went to the toilet.

12. On the fourth and final night that the victim stayed at Ms C’s house, the offender and the victim were naked together in the offender’s bed. They kissed all night. The offender told the victim that he loved her and wanted to do it more often. Nothing else happened that night. The victim returned home the next day.

16-17 DECEMBER 2023

13. The victim stayed at Ms C’s house again from 16 to 17 December 2023.

At around midday, the victim got a really bad headache and went to lie down on the bed in the offender’s room. The offender went into the room and sat on the bed next to the victim. They kissed for a while before falling asleep. They slept until around 2am and when they woke, they kissed again. The victim went and had a shower and when she got back, they kissed again.

14. That morning the victim went and had breakfast before returning to the offender’s room. The victim and the offender kissed again for several hours and then watched three Christmas movies on Netflix. They had pizza for lunch and afterwards the victim went back to the offender’s room to have a nap.

The victim was half asleep when the offender came into the room and told her to take her clothes off. The offender rolled the victim over to face him and inserted his fingers into her vagina and “wiggled” them (sexual intercourse with a child, Sequence 12). This went on for 10 to 15 minutes. The victim felt scared and told the offender she did not like it. The offender said, “Okay, I’ll stop.” The victim put her clothes back on and went to sleep.

The offender went outside for a smoke. When it was time for the victim to return home, the offender kissed her and said he loved her.

19 - 22 DECEMBER 2023

15. The victim stayed at Ms C’s house again from 19 to 22 December 2023. During that time, the offender digitally penetrated the victim’s vagina twice (sexual intercourse with child, Sequences 13 and 14). Each time, it happened in the offender’s room on the bed. They were lying on their sides facing each other and kissing. The offender took the victim’s pants off and inserted his fingers into her vagina. It ended when the victim got tired and told the offender to stop.

REPORT TO POLICE

16. On 25 December 2023, the victim was at her mother’s house from 1pm. She asked her mother to add the offender’s Facebook account to her Kids Facebook account, as her mother had parental control over the victim’s account. Her mother agreed, and that night the victim and the offender were video calling each other.

At 12.51am on 26 December, the mother received a notification that the victim had sent inappropriate messages from her Kids Facebook account. At that time, the victim was on a video call with the offender. A short time later the victim told her mother that she could not see the offender on the video call anymore and said his account had been suspended from Facebook. The victim and the offender continued to talk to each other that night over a regular phone connection.

17. At 10.58am on 26 December 2023, the mother sent the victim’s father a text message asking, “How often does C call Uncle Johnny at home?” The father replied, “Doesn’t.” Further text messages were exchanged where the mother told the father about the offender’s contact with the victim on Facebook.

18. Between 11.10am and 11.29am, text messages were exchanged between the father and Mr MO and the offender. In short, Mr MO told him to stop texting the complainant and pointed out that he had been informed that his Facebook account had been banned. The offender indicated that he would stop texting the victim. The offender endeavoured to convince the victim’s father that the messages were the result of his account having been hacked. The father repeated that he had been informed that he had been banned due to inappropriate conversation, and that he thought the offender’s response was “bullshit” and said, “No more contact. End of story.” The offender continued to suggest it was because his account had been hacked, but promised that he would not talk to the victim.

19. The victim’s father contacted the mother of the victim and asked her to look at the victim’s phone. She did so and discovered multiple text messages from the offender that were sexually explicit. The messages included the offender telling the victim that he loved her and that they are in a relationship but that it needed to be kept secret. The offender had also directed the victim to delete their messages. The victim’s mother took photographs of the messages and sent them to the victim’s father, who said he would come over and report the matter to police. When the victim discovered that her mother had taken her phone, she is described as going “ballistic” and saying that the offender would die in gaol.

20. Around 1.30pm, the victim’s father drove to the victim’s house to collect the victim. The mother gave him the victim’s phone, which he had a brief look at before driving the victim to Kempsey police station. The victim’s father spoke to the police and showed them the phone. Police took a number of photographs of messages as well as seizing the phone, and the matter was referred to the Mid North Coast Child Abuse Squad.

CELLEBRITE ANALYSIS OF VICTIM’S PHONE

21. On 29 December 2023, the victim’s phone was subject to a Cellebrite analysis. Of interest, some messages sent to the victim on 25 December 2023 included the offender writing, “I haven’t slept yet.” The victim replied, “N me also. Mass (miss) playing down there on U .. bet you miss playing down there on me 2, don’t you?” The offender replied, “Maybe. You know.” The victim later wrote, “Yes but you like 2 play down there.” The offender replied, “Yeah.” The victim wrote, “Wat part, front or bck?” He replied, “What do you mean front or bck?” “You mean ur ass or ur other part?” She wrote, “Yea.” The offender replied, “I like both.” “You have a cute bum.”

5. Further messages were exchanged where the offender told the victim not to talk over Facebook anymore because it was monitored, and they needed to be very careful. Police also discovered video files of the victim lying in bed with the offender.

INTERVIEW WITH VICTIM

22. On 2 January 2024, the victim’s father took the victim to the Kempsey Community Services Centre where she was interviewed by a detective. During the interview, the victim disclosed the above offences.

23. The victim also told the detective that she started exchanging “rude words” with the offender when she was 14 years of age. The detective asked the victim how it started, and the victim said:

“First of all, I had a crush on him … then he had a crush on me … and then we started sleeping together. Then he started kissing me on the lips and then he went, and then we sort of become boyfriend and girlfriend … and then we started calling and Facetiming and then we were messaging a fair bit and then - and then this happened.”

The victim said they started sleeping in the same bed together in November 2023. She also said the offender had told her to keep it a secret.

ARREST

24. On 4 January 2024 police attended premises in Port Macquarie to arrest the offender and execute a search warrant. When they arrived, the offender answered the door with his Samsung mobile phone. He was cautioned and placed under arrest, and his phone was seized.

25. The offender denied anything sexual ever happening between him and the victim. He admitted that they texted but denied it was sexual, saying, “... never anything fucking anything sexual between me and C ever, ever. She is like a daughter to me, that kid.”

26. Police executed the search warrant and, in addition to the offender’s mobile phone, seized the following items.

1. approximately 7 grams of cannabis (possess prohibited drug, Sequence 15)
2. a flick knife (possess prohibited weapon, Sequence 16)

27. In relation to the flick knife, the offender told police a friend had gifted it to him about three years ago. In relation to the cannabis, the offender confirmed it was his and said he smoked it for his anxiety and to help him sleep.

28. At the conclusion of the search warrant, the offender was conveyed to Port Macquarie police station where he was entered into custody and subsequently charged with these offences.

6. It is clear from the facts that the offender engaged in grooming over approximately a one-year period in relation to the victim. He was 48 years of age and she was 15 years of age, indicating that there was a substantial difference between their ages, being 33 years. All of the offences occurred within a relatively short period of time, being towards the end of November 2023 through to approximately 22 December 2023, but they were after an extended period of grooming of a then 15-year-old who has been previously diagnosed when she was about three with Autism Spectrum Disorder. The text messages clearly indicate that the offender had established a very close rapport with the child, in relation to whom he was in a position of trust, which he abused.

7. The facts are unclear as to the duration of the digital penetration with the exception of Sequence 8 which is said to have been digital penetration for a period of approximately three hours, making it a sustained offence. There is no great variation between the offences on the basis of the facts that I have referred to.

8. In each case, the offences of sexual intercourse with a child aged 14 or older and under 16 in my view fall in the midrange of objective seriousness. She was 15 at the time, so midway of age through the relevant range of ages.

9. It is apparent from the facts that the offending was non-oppositional, in the sense that the victim did not protest, but it is also evident that on occasion when she asked him to stop that he did in fact stop and there is no evidence that during the course of any of the offences the victim was particularly stressed and it would seem that she acquiesced in the conduct in general, as is particularly evident from the text message exchange referred to in the facts at para 21, taking place on 29 December 2023 where she referred to what in English, rather than text speak, would be, “And me also miss playing down there on you. Bet you miss playing down there on me too, don’t you?” However, she was of course a child and the offender was an adult.

10. Although each of the s 66C(3) charges falls in the midrange of objective seriousness I regard Sequence 8 as being somewhat more serious than the others because of the extended duration of the digital stimulation.

11. The offender was, of course, fully aware at all times that it was behaviour that he should not have been engaging in, as he denied any impropriety when broached and otherwise informed the complainant that she should delete the text messages and keep it a secret.

12. As to the offences of intentionally inciting a child 10 years or older and under 16 to sexually touch a person, each of those was inciting the victim to “rub” his penis. In my view, those are slightly below the midrange of objective seriousness but nonetheless serious offences.

13. None of the offences involved any penile penetration. The explanation for that on the facts and from the material supplied on behalf of the offender is that in his early twenties he suffered an injury to his penis, and as a result has had erectile dysfunction from that time.

14. There is a Victim Impact Statement from the victim and I note that, while I have had some difficulty in understanding parts of it, it does indicate that the victim is now aware that the offender has offended against her in a significant way and indicates that it has had a significant effect on her, as one would always expect once she became more cognisant of the fact that it was entirely inappropriate conduct by someone she trusted when she was young.

15. As stated by the Crown, the Victim Impact Statement is an eloquent attestation to the significance that the offending has had in respect of the victim. It has long been recognised that children who may not recognise the seriousness of conduct of others at the time that it happens, eventually become significantly affected by that conduct once they mature and realise the significance of it.

16. Section 25AA(3) of the Crimes (Sentencing Procedure) Act applies to offences of this nature. When sentencing an offender for a child sexual offence, the Court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

17. I am familiar with the trauma caused to children by sexual abuse, particularly, as I have said, as they age and become more cognisant of what has happened.

18. In my view, the offending will continue to affect the victim in this matter for many years, if not for the entirely of her life, and to a significant degree despite the fact that at the time of the offending she saw the offender in a friendly and companionable light.

19. Before I deal with subjective matters, the offender, having entered his plea of guilty to these matters on 10 April 2025 from Port Macquarie Local Court, is entitled to a 25% discount for the utility of the plea alone, and such a discount will be provided. He has apparently been in custody full time since being arrested on 4 January 2024. To date, that is a period, not including today, of 582 days. Any sentence to be imposed must be backdated by that period.

20. In R v Fisher (1989) 40 A Crim R 442, Yeldham J stated that,

“This Court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations...This Court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults.”

21. In R v Lau [2002] NSWCCA 131 at 178 it was emphasised that sentences imposed must send a clear message that the actions of those who offend against children intentionally and repeatedly will not be tolerated and that they will receive significant punishment.

22. The fact that the victim was diagnosed with mild autism at the age of three constitutes a statutory aggravating factor under s 21A(2)(i). All of the offences involved skin-to-skin touching. Initially the offending was on consecutive nights but continued later at the offender’s premises.

23. The facts disclose a number of matters which can be referred to as uncharged acts. Kissing her on the lips on multiple occasions. Being naked with her in bed. In sentencing the offender, I cannot take any uncharged act into account so as to lead to the imposition of a higher sentence than would be merited for the actually charged offences, however, I am entitled to have regard to the uncharged conduct to place the offending in context and to demonstrate that the offender is not entitled to leniency which might otherwise have been afforded if the charged offences were in fact isolated incidents.

SUBJECTIVE MATTERS

24. Before the Court in respect of subjective matters is the offender’s criminal history, and I note that he has no criminal history in New South Wales, however, when he was much younger, in 1996, he was charged in Victoria with burglary, armed robbery and possess firearm without licence. The offences themselves must have been of a relatively minor nature because he was sentenced to a community-based order of 18 months and to perform 200 hours of unpaid community work as well as undergoing assessment and treatment for alcohol and drug abuse. While he unfortunately breached the sentence, it was ordered to continue.

25. There is a Sentencing Assessment Report under the hand of Alison Richards, a letter to the Court from the offender, a psychological assessment report of some 36 pages under the hand of Sarah Brann, psychologist, dated 29 June 2025 and, provided this morning, a document listing months and days in relation to which the offender says that he has suffered either half-days or full-days of lockdown while in custody, said to be 128 full days in 2024.--

DAMPNEY: I’m told it’s 62, your Honour, for 2025.

HIS HONOUR: All right. There’s also a note which I don’t understand, “R-I-T cell”?

DAMPNEY: That’s whilst he was on remand, as he understands it.

HIS HONOUR: All right, and five days whilst on remand. I think you said five days in ‘25?

DAMPNEY: Sorry, your Honour?

HIS HONOUR: Five days in 2025?

DAMPNEY: 62 in total in 2025, lock-in days.

HIS HONOUR: There are only--

DAMPNEY: Oh, I apologise, they are also - yes, sorry, your Honour, I don’t have that copy. They’re partial days as well.

HIS HONOUR: Yes, okay.

DAMPNEY: The highlighted ones.

26. HIS HONOUR: All right, yes, okay, I accept that no doubt there has been a significant period of time where the offender has been locked in either for a half-day or an early lockdown or a full day since going into custody in 2024, even in the absence of any material from Corrective Services.

27. I accept that his offending in the past, approximately some 30 years ago in Victoria, has no significant relevance in relation to this sentencing process.

28. Mr Connell was born in New Zealand and immigrated to Australia at the age of six. His mother was Maori, and his biological father an English naval officer. He has had no contact with his biological father. His mother formed a relationship with is stepfather, who was a violent alcoholic who physically abused both the offender and his mother on a regular basis.

29. The offender witnessed significant episodes of intimate partner violence. The offender internalised his stepfather’s narratives of violence, externalising blame onto others and minimising the extent of the abuse. He justified the violence as warranted and indicated that his mother had “not really” been injured.

30. He was introduced to illicit substances by his mother at age eight and his father grew cannabis at home, providing him with easy access at an early age. At the age of ten he is said to have been sexually assaulted by a male friend of his stepfather, which he did not disclose or seek help in relation to. It occurred while he was “greening out” - I take it as affected by marijuana - and was not fully aware of what happened and has wondered in the intervening period as to whether there were other occasions when he was abused in the same manner.

31. He moved out of home at the age of 16 to escape the violence and resided initially for two years with some family friends before moving out. However, he found it a struggle to pay bills and became homeless at 18 years of age.

32. The Sentence Assessment Report appears to indicate that the offender has not taken full responsibility for his crimes, as he sought to minimise his actions and/or blame the victim for what occurred, as is indicated by the following references in the SAR:

“Although the offender has the support of his mother, contact with the offender’s mother indicated that she was ‘unaware the offences had occurred in her home.”

33. The offender “initially placed blame for the offences on the victim and stated that she had instigated the behaviour” and only accepted it was his responsibility as the adult “once challenged” by the report writer (p 2).

34. The offender “initially minimised the offences and denied sexually touching the victim. However, eventually admitted to his behaviour, while claiming the victim instigated the relationship” (p 2).

35. The offender “demonstrated minimal insight into the impact of his offending on the victim” (p 3).

36. The SAR does not indicate any real remorse on the part of the offender or acceptance of responsibility.

37. He did not give evidence on sentence and, accordingly, was not the subject of cross-examination where he could be tested. However, he provided a letter to the Court which indicates that he wished to apologise to the victim and her parents and indicates that, having had time to reflect while in custody on what he had done, that he now admits that it was wrong, inappropriate and unacceptable, and that he should have known better. He also acknowledged that he should not have perused, “pursued” I think is what he meant, and engaged in a relationship with her and that he should not have led her on by way of the text messaging. He stated that:

“While I cannot change the past, I believe I can make a future for myself by making the right decisions, getting a job, stable work environment, and being there for my mum and supporting her like she is supporting me right now.”

38. While letters to the Court which are not the subject of evidence in general can have little weight, I accept that, with the benefit of reflection during the course of the period that he has been in custody, the offender now realises the seriousness of his offending and the potential effects that it will have on the victim.

39. The offender informed the psychologist that he was typically intoxicated when the victim of the current matter before the Court visited and the psychologist opined that his alcohol consumption is likely to have contributed to disinhibition and impaired decision-making. There is in fact no evidence other than his statement to the psychologist that he was in any way affected by alcohol on any of the occasions that the offending occurred.

40. On the basis of his self-reporting and some testing, Ms Brown opined that the offender met the diagnostic criteria for what she refers to as complex PTSD, but she stated in that respect that the test scoring indicated that he “indicates that his symptoms may contribute to dysfunction but not to a clinically significant degree”. The psychologist did not identify any particular causal link either direct or indirect between the offender’s complex PTSD and the commission of the subject offences.

41. However, his particular circumstances and upbringing remain relevant to the issue of an appropriate sentence. It must have some minor effect in relation to his suitability as a vehicle for general and/or specific deterrence.

42. While he had the disadvantage of a dysfunctional upbringing to some extent, it is not to the extent that was envisaged by the Court in Bugmy v R (2013) 249 CLR 571. That is, it does not reduce his moral culpability to any significant extent, although, as I have said, it does have some impact. Of note in particular is that, despite his exposure to violence and drugs in his childhood, he has no relevant criminal record, and according to the psychological report, he has engaged in meaningful adult relationships over the years and has a 30-year-old son and four grandchildren with whom he has regular contact. That is of course in his favour, but he is not one of those persons in relation to whom the childhood exposure was so severe that it resulted in him being continually dysfunctional in effect thereafter.

43. I note, although he regarded himself as being loved by his mother in his earlier years, once he reached the age of ten, he saw her as acting in a selfish way, and protective of herself rather than supporting him. However, I note that in recent times he has managed to reestablish his relationship with his mother because he was residing with her prior to committing the offences which occurred in her home.

44. He went to preparatory school and kindergarten in New Zealand and Years 1 to 6 in Australia. He was once suspended for truanting but otherwise was not a troublemaker. He was not particularly outgoing and did not have many friends at school and was in fact expelled during Year 10 when he threw a table at a student who he regarded as having bullied him. He did not then return to complete further schooling after that expulsion.

45. As to his employment, he has worked in concreting, meat processing, labouring, factory and warehousing/logistics as a forklift driver, having had a few periods of unemployment, the longest being three years in his late twenties, and his longest period of sustained employment was four years in the meat processing facility. He has lost a number of jobs but he attributes that to various terminations resulting from his being ill with influenza and other like matters.

46. He has suffered from anxiety and depression in recent years and was previously prescribed the antidepressant Pristiq and is again being medicated while in custody. He has been pursuing an application for a disability support pension but that has so far been unsuccessful. At 43 he was diagnosed with emphysema and apparently also asthma. He had previously struggled to develop or maintain social connections throughout his life and lacks a sense of belonging and possesses poor self-esteem.

47. As to his past relationships, they were apparently what are called “open” relationships, lacking commitment, particularly due to his erectile dysfunction. His first sexual experience was apparently at age 18 and the psychologist could not discern any evidence of any deviant sexual interest. The psychologist indicates that in respect of individuals like the victim, who suffer from Autism Spectrum Disorder, that it involves neurodivergence and contributes to social difficulties forming appropriate same-age connections (as highlighted in the Agreed Facts). ASD also involves deficits in “theory of mind” (ie blind spots to understanding others’ intentions) which make these individuals more susceptible to manipulation. That may provide some insight into how this offending occurred.

48. The psychologist rated him as being in the average risk factor relative to other sexual offenders. The SAR report rates him as being below average risk of reoffending of this nature, however, under the heading of Risk Assessment he is assessed as being a medium risk of reoffending. A significant contributor to that appears to be that he demonstrated minimal insight into the impact of his offending on the victim, although he did acknowledge the feelings of her family and expressed no animosity towards them for involving police.

49. In relation to the issue of rehabilitation, in view of the offender’s long history with no relevant offences and his generally successful participation in the community in the past, in my view this was a relatively opportunistic series of offences arising from the close relationship with the victim. In my view, the prospect of his reoffending in this way is minimal, and the prospect of rehabilitation is reasonable, particularly if he finally comes to accept, rather than simply state in a letter to the Court, that he understands that what he did was terribly wrong and comes to understand the absolutely deleterious effect that it will no doubt have on the victim.

50. I have taken all those matters into account in determining sentence and I intend to proceed by way of an aggregate sentence in part and an actual sentence.

51. I will deal with the separate matters of Sequence 16, the flick knife, and Sequence 15, the prohibited drug, being 7 grams of cannabis, in the circumstances of this matter, and in view of particularly the fact that a sentence of imprisonment must be imposed, the s 5 threshold clearly being passed in relation to the sexual offending, in relation to each of those, I will convict him, pursuant to s 10 and I order no further action in relation to the flick knife or the 7 grams of cannabis.

52. As to the sex offences, in relation to Sequence 2 and the matter included on the Form 1 being Sequence 3, the indicative term is a term of imprisonment of three years.

53. In relation to Sequence 18 and the Form 1 matter Sequence 6 taken into account, the indicative term is two years’ imprisonment.

54. In relation to Sequence 8, and taking into account Sequence 9, contained on the Form 1, the indicative sentence is three and a half years’ imprisonment.

55. In relation to Sequence 12, the indicative term is two and a half years’ imprisonment.

56. In relation to Sequence 13, the indicative term is two and a half years’ imprisonment.

57. In relation to Sequence 14, the indicative term is two and a half years’ imprisonment.

58. The aggregate term, finding special circumstances, will be a term of imprisonment of six years with a non-parole period of four years. Being backdated by 582 days from today, it will commence from 4 January 2024 and he will first be eligible for parole on 3 January 2028. The balance of term of two years will commence on 4 January 2028 and expire on 3 January 2030.

59. I have found special circumstances on the basis of providing a longer period of parole to assist him to reintegrate into the community and obtain any necessary treatment or counselling which might assist him not to commit any further offences of a like nature.

60. In addition, I have taken into account, although not a strong factor, the fact that it is his first time in custody.

Is there anything that--

DAMPNEY: Not from my part, your Honour.

DAVIDSON: I think your Honour does need to make a finding, and it’s apparent from the aggregate sentence anyway, but about totality and the degree--

61. HIS HONOUR: I took into account the issue of totality in establishing the aggregate sentence, and I took into account the discount of 25% in relation to each of the individual offences.

Yes, sometimes one forgets to refer to totality and Pearce and all the rest of it but I did take it into account.

DAVIDSON: Thank you, your Honour, I just wanted to put that on the record, and the other thing was I missed what your Honour said in relation to the s 166 Certificate offences. Did you say that is for the possess cannabis and the--

HIS HONOUR: Yes, I referred to those as the first thing I provided a sentence in respect of.

DAVIDSON: No, I just missed them, sorry. Was it a 10A conviction with no further penalty for each?

HIS HONOUR: Yes, it was. I can see no point, in this matter, in doing anything other than that.

DAVIDSON: I accept that, thank you.

62. HIS HONOUR: Sorry, I should have indicated that I also took into account the lock-in days.

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