R v Dixon (a pseudonym)

Representation: Counsel:
Ms C. Akthar for the Offender
Solicitors:
Director of Public Prosecutions for the Crown
Hamilton Janke Lawyers for the Offender

File Number(s): 2024/232370

JUDGMENT

1. The offender appears for sentence in respect of an offence of sexual intercourse without consent as provided for by section 61I of the Crimes Act 1900. The maximum sentence for that offence is 14 years imprisonment and there is a standard non-parole period of 7 years. The maximum penalty and the standard non-parole period are legislative guideposts indicating the legislature’s view of the seriousness of the offence so as to assist in arriving at the appropriate sentence. Additionally there is a second offence under section 61I on a Form 1, that is to be taken into account in sentencing for the primary offence in the manner the Form 1 procedure allows.

2. As the summary of the facts that follow will show, a feature of this matter is that to make out the required element of the offence that the victim did not consent to the sexual intercourse, the Crown relies on section 61HJ(1)(k). That section provides:

(1) A person does not consent to a sexual activity if--

(k) the person participates in the sexual activity because of a fraudulent inducement.

"fraudulent inducement" does not include a misrepresentation about a person's income, wealth or feelings.

The facts

3. Within exhibit A which is the Crown tender bundle is a statement of agreed facts. The whole of those agreed facts are therefore in evidence and the following is a summary of them. The offence occurred on 9 August 2023. In the lead up to that date the offender and victim had first met on 8 July 2023. On that occasion the offender contacted the victim and an arrangement was made whereby he paid a sum of money in advance of meeting the victim, he then met the victim at her location and they engaged in sexual intercourse. That same process occurred on 18 July 2023. The third occasion whereby sexual services were offered on a commercial basis was the date of the offence. On that occasion the offender paid a deposit of $100 in advance. To satisfy the victim that she had been paid the balance due, also in advance, the offender showed her a receipt purportedly showing the transfer of the balance of the payment of $700. That receipt was fraudulent and there had been no such payment made by the offender to the victim. Believing that payment had been made, the victim provided the sexual services. It is those sexual services that constitute both the primary charge and the Form 1 matter.

4. After the offender left the victim’s location on 9 August 2023 the victim realised the payment had not been made and she chased up payment that night by text. She chased it up again twice on 10 August but there was no response and she then again chased it up on 11 August 2023 to no response. The victim then telephoned the offender from her work mobile but received no answer so she then telephoned him from a different phone which he did answer but when she spoke he terminated the call. Payment was never made.

5. About a year later on 2 September 2024 the offender came to the attention of police for another matter. The warrant relating to this matter was noticed by police and he was arrested. The offender remained in custody until 24 January 2025 which is a period of four months and 23 days. This judgment is delivered on 15 October 2025 and any term of imprisonment will be backdated to 24 May 2025.

6. In addressing the issue of objective seriousness the Crown very fairly observed, that whilst every offence of sexual intercourse without consent is a serious offence some are more serious than others, and went on to note variables such as the degree of violence, physical hurt and humiliation. The implication of that submission, and my finding, is that this is a less serious example of the offence by reason of the fact that there were no elements in this case of physical hurt or humiliation or violence. Whilst the victim was acting as a result of being deceived her actions were carried out willingly.

7. The sexual intercourse relied on to make out the charged matter was penile vaginal intercourse and the sexual intercourse relied on for the Form 1 matter was fellatio. As is well recognised there is no hierarchy of sexual acts with each case needing to be determined on its own facts and circumstances. That the sexual intercourse was as just described in my view does not add to the objective seriousness of this offending.

8. The offender notes that there was not present in this conduct any physical coercion, verbal threats or insults, degradation, age or power imbalance or domestic violence. Adverse to the offender is that he was quite premeditated in his actions which must have required some planning.

9. Section 61HJ(1)(k) was enacted in 2022. In the second reading speech introducing the legislation it was expressly recognised that the finding of the Law Reform commission was that the then existing approach to consent obtained by fraud was out of step with community concerns “including calls to better protect sex workers who are fraudulently promised payment for sexual services”. As was made plain by what followed in that speech and by the terms of the legislation given the exclusion provision following subsection (k), not all misrepresentations constitute fraudulent inducement.

10. I accept the submission of the offender that the offence is in the low range of objective seriousness.

11. The Crown argues for a number of aggravating factors. It notes the offender’s record of previous convictions. His record certainly disentitles him of any leniency on the basis of a good record but in my view it is not a record which aggravates this offending and I note the absence of any prior sexual offending.

12. The offence was committed whilst he was on conditional liberty being on a good behaviour bond imposed in Queensland and I take that into account in considering his prospects and risk of reoffending.

13. The Crown argues that the victim was vulnerable, seemingly making an unwritten comparison to the late-night shopkeeper or taxi driver. There is some vulnerability here of the victim due to the fact that the provision of her services places her alone with the customer. I would agree with Penfold J in the decision of R v Livas [2015] ACTSC 50 at [34] that sex workers are a vulnerable category of worker. What Penfold J meant was not elaborated on but presumably it was a reference to being vulnerable to physical assault given the circumstances of being alone with a male and most likely stronger person. Yet the vulnerability relevant to the facts of this case is of a far different nature than the late night shop attendant working alone. This is because what has occurred here is not a physical robbery or act of violence but rather a deception and thus differs from the vulnerability commonly referred to. The victim here is no more vulnerable to the fraud that has occurred than any other person providing a service for payment. In my view for this reason this factor is moderately aggravating at best and I do not give it much weight. I accept there was a degree of planning to enable the preparation of the fraudulent receipt, but I am of the view is not the kind of planned or organised criminal activity being referred to in s21A(2)(n), and if that be wrong, then it has already been taken into account in determining objective seriousness. There was also a financial gain as the Crown submits, but that in my view is an intrinsic part of the fraud to avoid payment, and thus of the offence and has been considered, and it is not an aggravating feature.

14. The Crown read onto the record a victim impact statement. Section 30E of the C**rimes (Sentencing Procedure) Act 1999 provides that the court must consider the statement before sentence and may make any comment on the statement as appropriate. In this case the offender submitted that there were parts of the statement that were not in accordance with section 28 of the CSPA. That section permits the preparation of an victim impact statement that contains particulars of harm suffered by the victim including any personal harm, emotional suffering or distress, harm to relationships with others or economic loss or harm. The parties did not seek to take up the court’s time in considering that point line by line and were content for the court to make its determination when giving judgment. The Crown seemed to accept there were parts which were not in accordance with what was permitted by section 28 but not to the same extent as the offender was suggesting.

15. Shortly stated the point made by the offender is that a significant amount of the victim impact statement goes beyond particularising the harm suffered by the victim. The statement does so by making assertions as to what the victim knows as to why it was the offender acted as he did and attributes to him certain views about the victim’s occupation. It also goes into generalities about how men treat women. It also makes comments about the inability of the justice system to hold the offender accountable. I accept that the point made by the offender is a valid one and have taken from the victim impact statement those matters recording the harm suffered by the victim. The victim states she has experienced significant and ongoing psychological harm however that concern must be seen in the light that the victim characterises the offender’s conduct as violent acts which is not the basis on which the matter is being dealt with. I accept that the victim felt that she was preyed upon. Curiously, the victim states that she gave the offender time and multiple chances to rectify his crimes which can only be a reference to giving him the opportunity to pay after the offence occurred. To that extent it seems the victim herself sees this as more a commercial crime than other forms of sexual assault. That said it is plain that the offending caused the victim significant distress which I do take into account. She talks of suffering anxiety and stress and fear of there being future violations of her consent. She also refers to having become hypervigilant and having attended more than 50 hours of counseling. I have considered the statement and have taken the impacts described into account.

Subjective case

16. The offender is entitled to a 25% discount due to the timing of his plea.

17. The offender has a criminal history in New South Wales and Queensland. The offender was born on 16 November 1987, so that at the time of the offending he was 35 years old. His first offence was assault occasioning actual bodily harm in 2006 in New South Wales and another assault and weapons charges in Queensland in 2009. There was then a lengthy period without offending. In 2020 there was further offending in New South Wales of a violent nature and in 2023 minor offending including drug possession in Queensland.

18. A sentencing assessment report was prepared dated 2 October 2025. It notes the offender resides in Macksville with his mother and stepfather and is single. He has a strong pro social support network since returning to the Macksville area which is where he was when he was arrested. Prior to that including at the time of the offence he was homeless and sleeping rough. He returned to his family in 2024 and had gained some stability in his life prior to being arrested for this matter.

19. He had a stable work history until about 2021 so about the age of 34. He was a member of the Australian armed forces and also worked in mining and other industries. The reason his work history has been poor since 2021 is due to a decline in his mental health and substance use issues.

20. The report states that he intended to rip the victim off as she had previously ripped him off for drugs, though he gave evidence at the hearing that was not accurate; he said he was talking about the use of drugs and that they were both intoxicated. He also told the report writer the transaction was consensual in terms of its sexual nature and did not violate the victim sexually. In my view whilst that view does not accord with the legislation, it is an understandable view to take; all he is saying is that the actual physical conduct between them was as I have noted above, that is it was willingly carried out but as a result of deceit. Whilst the offender is to be punished for his offence I do not consider it is adverse to him that he would express such a view. His view is in fact consistent with the implicit submission of the Crown referred to above, and the corrective services casenote referred to below, and the view expressed by Dr Nielsen, also referred to below.

21. The report notes that it was in about 2021 that he commenced binge use of cocaine and other stimulants. He was also by the end of 2021 on medication to manage his mental health which affected his sex drive and his use of stimulants increased. He said he was off his head on drugs at the time of the offending and not making clear decisions.

22. When he returned home in Macksville in 2024 he ceased drug use and has remained abstinent apart from a lapse at the end of the football season on what is known as “mad Monday”, and also, according to the report a use of heroin in custody when he was not provided with his medication.

23. He has engaged in counselling since July 2025 and has remained abstinent I infer since he was released on bail in January so a period now of some 9 months.

24. The offender has been diagnosed as suffering from schizophrenia, post traumatic stress disorder and substance use disorder. He presently has a medication regime and engages in regular psychological counselling. He has also attended a 10 week men’s recovery program facilitated by the Buttery. He continues with these interventions. He is willing to do community service work and was considered suitable. His previous period under supervision was satisfactory and was indeed suspended due to his then assessed medium / low risk of reoffending. He was cooperative and forthcoming for the report. He was again assessed as a medium to low risk of reoffending.

25. As is commonly provided there was also a case note report. Interestingly and consistent with the view taken by both parties and accepted by the court that this is a low-level example of sexual assault, this offence falls into category B of the static 99R coding manual. That is, the usual assessment for recidivism risk for sexual offences does not apply to this type of offence. That report confirmed the LSI-R assessment of medium to low.

26. The criminogenic risk factors identified are his substance use history and mental health with reference also to gambling and poor coping and self-regulation skills.

27. The offender relied on a psychiatric report of Dr Nielsen. The history given was that at the time of the offending he had got off his medication and treated himself with alcohol and drugs. As at about early 2023 the offender was stable on his medication but was affected by the death of his grandfather in April of that year. It was after that event that he stopped the medication and resumed drinking alcohol and taking drugs. The offending of course occurred in August 2023. In the interim period between the offending and arrest he realised he needed to cease drugs. The report states he applied for admission to rehabilitation centres though it is not clear whether he attended any as a resident but he was able to stop drugs and moved back to live with his mother where he still lives presently. Throughout 2024 he adhered to his medication and resumed playing rugby league.

28. The report states and other documents support the fact that whilst in prison he was not appropriately medicated and his symptoms including hallucinations returned. Upon his release he sought help from his general practitioner though the earlier helpful drugs no longer had the same beneficial effect.

29. The history also notes that a three-year relationship broke down in 2020 and had a significant effect on him.

30. No history of any background disadvantage was given. He grew up in Macksville where his mother still lives. He joined the army on leaving school where he remained for about four years. He worked in construction when he left the army and was consistently employed until the end of 2021. It was in December 2021 when he first was treated for psychosis which is said to possibly be related to methylamphetamine use. Subsequently a diagnosis of schizophrenia and depression was made. I note that he gives a history of some drug use on special occasions prior to this time though it may be the offender is understating that for he certainly indulged heavily in and after 2021 and indeed as he admits he was at the time of the offending. Dr Verma, a psychiatrist who treated the offender I infer in about late 2021 concluded that the offender had schizophrenia and alcohol use disorder. Dr Nielsen stated his diagnoses to be persistent psychotic illness schizophrenia in remission and substance use disorder also in remission

31. The short chronology therefore that I find is established is of a largely pro social life albeit with some episodes of offending up until 2021. About that time there is a relationship breakdown and in the following year a diagnosis of schizophrenia and alcohol use disorder. He seeks and receives treatment for that but relapses after the death of his grandfather in 2023. The offending occurs, no action is taken to his knowledge for about 12 months and in that period he again seeks appropriate treatment and his substance use issues go into remission with one short relapse on Mad Monday.

32. The opinion of Dr Nielsen is that his condition is a chronic form of psychotic illness rather than a substance related condition for the reasons he states page 8 of the report.

33. As noted above the offender gave evidence. The offender confirmed that the history given to Dr Nielsen was true. He stated his version at odds with what the sentencing assessment report writer recorded, not only as referred to above, but also that he did not use the word retribution. In his evidence on oath in court he denied he considered he was entitled to a free sexual service, and that he now understands that his conduct constitutes an offence, and that he takes responsibility for his actions. The offender gave evidence of offering to pay the outstanding amount, but this was rejected.

34. In cross examination he accepted that the victim would probably not have had sex with him had she known payment had not been made; when asked again, his answer was “I don’t think so”.

35. I accept the evidence given by the offender; his evidence in chief was not damaged in cross examination and he appeared to my observation to be genuine in what he was saying.

36. There was no successful challenge to the history given by the offender and I accept the history as I have outlined above along with the opinions given by Dr Nielsen referred to above. In addition to those opinions Dr Nielsen did answer specific questions at the concluding pages of his report. He notes that there will be a need for ongoing treatment. In terms of the offender’s prospects of rehabilitation he noted that the offender was distressed and ashamed of his offence went on to say:

“he is not a sex offender in the sense of having committed a sexual assault on an unwilling person as it seems [the victim] consented to the sexual encounter on the condition that she was paid. His longer term prognosis and prospects of rehabilitation are related to both the course of his substance use disorder and his mental illness. Successfully treated and abstinent from illegal drugs the offender would be expected to be able to resume full-time work and not commit any further offenses”.

37. Consistent with that, and which I accept, it was stated that free of substance use the offender has a relatively low likelihood of offending based on his age history and social performance. As to the likelihood of a further sexual offence I note and place some emphasis on Dr Neilsen’s view that the four months spent in prison and the ongoing proceedings have had a strongly aversive effect that would also minimise the likelihood of similar behaviour. Dr Nielsen also notes, consistent with the case note from corrective services, that the circumstances of this offence are not typical sexual offences arising out of any pattern of behaviour that would be likely to recur. The offender does not require any offence-related counselling.

38. Dr Nielsen expressed the view that a further period of imprisonment would disrupt the offender’s progress in recovery and rehabilitation. He notes the difficult time he has already had in prison due to the lack of appropriate psychiatric care, which Dr Nielsen states is a common complaint. He also notes that imprisonment can be more onerous for people with psychotic disorders. I accept these various views of Dr Neilsen.

39. One aspect of the views of Dr Nielsen that were not adopted in submissions by the offender was of there being an express causal connection between his mental health and the offending. In my view that was a sensible position for the offender to take. This is for the same reason that Dr Nielsen, the community corrections case note and the facts themselves, support the view that this is sexual offending somewhat different to the norm due to the in effect deeming provision of section 61HJ(1)(k). It is difficult not to come to the conclusion that whilst there may have been a lack of clear thinking in the period that he was using drugs and living rough at the time of the offending the simple point is he wanted something but did not want to pay for it. At the time of committing the offence, he did not appreciate that not only was he in effect being a bad debtor but he was committing what the amendments made in the previous year made clear was a serious criminal offence. That of course does not mitigate the seriousness of his conduct but these are relevant points to take into account in terms of his prospects and likelihood of reoffending. That was the point being made by Ms Akthar.

40. In addition to the report of Dr Nielsen there was a range of supporting documents relied on by the offender. This included documents from medical practitioners at Macksville and Coffs Harbour including at the hospital supporting the history given to Dr Nielsen. There was also a mental health care treatment plan though it was dated only 5 August 2025 suggesting it may have been done in readiness for the hearing as much as anything else. The offender had by that time been in the community for more than six months. Nevertheless it does show that steps have been taken and a referral to a psychologist has been made. Two urine drug screens taken in August and September 2025 showed no cocaine, cannabis, benzodiazepine, amphetamine -type substance, opiates or methadone in his system. There was also a letter from the Buttery showing that he has been engaged with that service since July 2025, so prior to the mental health care plan and lessening the scepticism about the timing of the health care plan. The Buttery report is a favourable one and notes the offender engaging in individual counselling and participating in a ten-week men’s self-development and addiction recovery group in which he has taken on a leadership role which is said to reflect a strong commitment to personal growth and recovery. I accept that view.

41. The psychologist to whom he has been recommended provided a report dated 27 September 2025. It says he has been working hard and is corroborative of his case as to his efforts towards rehabilitation.

42. I note a certificate of appreciation presented to the offender for completing the sexual consent training course in September 2025.

43. Finally there are a series of documents which show that in the more than four months that he was in custody he was frequently requesting medical treatment in respect of his mental illness which were not met. On his release he made a complaint. The response to that complaint from the Justice Health and Forensic Mental Health Network dated 19 June 2025 includes stating that the author of that letter believed “that you should not have been removed from the mental health waiting list and I apologise for this.” The letter notes the number of requests he made for review of his mental health and notes that unfortunately he was not reviewed. It is acknowledged that this was a failure in the processes of Justice Health.

44. One submission made is that in the light of this material there are concerns that he would not be any better treated the next time. The document from the Health Care Complaints Commission refers to the Justice Health response and said the Commission had written to Justice Health to ensure all staff are trained on the new measures that have been implemented and for the complaint to be used as a learning opportunity to prevent similar experiences for other patients. It is said there are new measures in place but they are simply referred to as including additional review processes for referrals, open access mental health clinics and revised triage protocols. There is no detail given about these new measures. I accept the submission made that this response would not inspire great confidence that the offender would be treated any differently next time.

Consideration

45. The ultimate submission being made on behalf of the Crown was that there was no sentence other than a period of full-time imprisonment that was appropriate. Such a sentence of course has already been served. The issue is what is the appropriate length of the sentence and what period of non-parole should be set.

46. The submission on behalf of the offender is that there should be a significant finding of special circumstances to the extent that the non-parole period should be the time already served. The offender relied on R v De La Rosa [2010] NSWCCA 194 in this regard, and generally. As noted above, I have found custody will weigh more heavily on the offender due to his mental health. I also consider that due to his mental health, and the extent of rehabilitation to date, that the likelihood of reoffending is such that not much weight needs to be placed on specific deterrence, though there is a need to reflect general deterrence.

47. In respect of special circumstances I accept on the facts of this case that the offender is a person who would benefit from an extended period of supervision. Given that the likely sentence is going to be a reasonably short one the ratio would need to be varied somewhat markedly in order for there to be in real terms some additional time in the community for the supervision to occur. I also note based on the custody record that this has been the offender’s first time in custody which is also a basis for special circumstances. Additionally I accept the view of Dr Nielsen that as the offender suffers from a psychotic condition custody may be more onerous for him. The likelihood of that being the case is increased due to the inability of corrective services to have properly provided for his mental health when he was in custody following his arrest possibly recurring.

48. It is of course necessary to take into account the Form 1 offence. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

49. In this case in my view the Form 1 offence does not result in any marked increase in the sentence, and is only of minimal impact. It must of course be taken into account, and it constitutes a second act of sexual intercourse. At the same time, it is part of the one occasion of sexual engagement that occurred by reason of the fraudulent inducement.

50. The Crown helpfully provided a decision of the Supreme Court of the ACT, being R v Livas cited above and involving a sex worker not being paid; neither party was able to locate a decision involving section 61HJ(1)(k). As is routinely recognised, caution should be exercised in considering comparable cases for in every case the facts are different. That said in Livas the offence admitted to was described as sexual intercourse without consent, the apparent consent of the complainant having been obtained by fraud. In that case the offender made out that the money was in a sealed envelope and asked that the complainant not open it until after they had sex. After having sex what was found in the envelope was a card and a piece of paper folded up to give the appearance of money but there was none. The facts are plainly analogous to the present to that extent. They do vary because the complainant opened the envelope before the offender had left and when she discovered no money there was an altercation between them.

51. In Livas when considering objective seriousness it was said “it must be clearly understood that something that looks like a consent to sexual intercourse if obtained by fraudulent activity as this one clearly was not a consent”; see at [21]; and further it was accepted that the offence involved no force or violence used to achieve sexual intercourse.

52. I also note in that matter that the plea of guilty was not an early plea and came only after a challenge had been made to the appropriateness of the charge. The ultimate result was a term of 30 months but reduced to 25 months allowing for the plea of guilty with a non-parole period of nine months.

53. The purposes of sentencing are set out in section 3A of the CSPA. They are:

(a) To ensure the offender is adequately punished (b) To prevent crime by deterring the offender and others from committing similar offences (c) To protect the community from the offender (d) To promote the rehabilitation of the offender (e) To make the offender accountable for his actions (f) To denounce the conduct of the offender (g) To recognise the harm done to the victim of the crime and the community.

54. In this case as noted above there is little need for specific deterrence. There is a low to moderate risk of reoffending that has been assessed and in my view it would be closer to low than moderate. The significant consequences so far felt by the offender are likely to have had a significant deterrent effect. The steps taken towards rehabilitation and management of his mental health issues since being on bail support this view. There is a need for general deterrence as it may well be that the general public and perhaps more particularly likely clientele of sex workers suffer from a misunderstanding that to simply not pay the agreed fee is wrong not only in the commercial sense but also is a serious criminal offence. The harm to the victim needs to be recognised and the offender should be made accountable for his actions and his conduct denounced. The offender understandably and effectively in my view has placed emphasis on the need to promote his rehabilitation.

55. In considering promoting the offender’s rehabilitation I find that his continued presence in the community will far more likely prolong the rehabilitation he has commenced. This is because it is more assured that when in the community he will be able to get the appropriate treatment and on the facts of this case one cannot be so sure about that if he is to return to custody. I accept the opinion of Dr Nielsen that imprisonment would disrupt the offender’s progress in recovery and rehabilitation.

56. It is important not to underestimate the impact of 144 days, so nearly 5 months, of custody for a person at the age of 37 who had not previously experienced custody. The impact is even more marked given the difficulties he had whilst incarcerated as outlined above. The purposes of sentencing other than promoting his rehabilitation in my view will be adequately met by a term of imprisonment where the time served is the non-parole period. Those purposes will be continued to be met by the restraints on the offender’s liberty in the parole period and at the same time his rehabilitation will be able to continue with greater certainty.

57. Taking into account the Form 1 matter and applying a discount of 25% on the basis of the early plea in my view there should be a term of imprisonment of 16 months so 12 months after the discount with a non-parole period of the time spent in custody prior to bail which I estimate to be 144 days. The sentence will be expressed so as to backdate from today by 144 days and the non-parole period will expire today.

58. The non parole period varies from the standard non-parole period because of the low objective seriousness of the offence, the 25% discount and the factors relied upon for the finding of special circumstances.

Orders

1. Of the offence of sexual intercourse without consent the offender is convicted.
2. The offender is sentenced to a term of imprisonment to date from 25 May 2025 and with a non-parole period expiring today 15 October 2025 and with a balance of term expiring on 24 May 2026.

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Amendments

26 November 2025

Paragraph 36 anonymised