R v Ferguson

District Court of NSW|2024-08-22|Before: Ms J

REMARKS ON SENTENCE

On 30 July 2024 the accused pleaded not guilty upon arraignment to the following four counts on the Indictment:- 1. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. 2. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. 3. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. 4. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment.

Facts on which the offender is to be sentenced

As set out in my judgment on verdict the ultimate factual issue in the trial was whether each of the acts alleged by the victim occurred. For the sentence hearing the parties agreed facts upon which the offender is to be sentenced in a document entitled "Findings of facts consistent with guilty verdicts". That document is attachment "A" to these remarks. As the trial Judge, I found facts to be derived from the verdict which substantially accord with those facts. A summary of the facts which I found proved beyond reasonable doubt upon which the offender is to be sentenced therefore is as follows:- 1. On 21 October 2020, the victim who was 18 years of age and had been diagnosed with autism spectrum disorder (ASD), a mild intellectual disability and a generalised anxiety disorder, went to the offender's home to mow the offender's lawn. The victim was a school friend of the offender's stepson who was also suffering ASD. After mowing the offender's lawn the victim was invited to spend the night at the offender's home. The offender's partner and stepson had gone to bed by 9:30 p.m., leaving the offender and victim in the entertainment room of the home together watching television. The offender had consumed a number of alcoholic drinks during the evening. 2. In respect of Count 1, the offence of aggravated sexual touching pursuant to s61KD(1)(a) of the Crimes Act, at approximately 12:00 a.m. the offender had asked the victim "Have you had sex before?" The victim replied "No" and the offender said "Do you want to try it?" to which the victim replied "Not really". The offender then approached the victim, pulled his pants down and started masturbating the victim's penis. 3. In respect of Count 2, the offence of aggravated sexual intercourse without consent pursuant to s61J(1) of the Crimes Act, the offender then sucked on the victim's penis. 4. The victim then went to the toilet in the main bathroom located at the back of the home. The offender followed him into the bathroom and asked whether he wanted to be "manscaped". The victim said "No, I don't want to" and the offender proceeded to shave his genital area with a cordless hair trimmer. The offender then told the victim to have a shower and the victim did so. This was the conduct of which the offender had previously been convicted of, namely Count 4 in the first trial. 5. In respect of Count 3, an offence of aggravated sexual touching pursuant to s61KD(1)(a), whilst the victim was in the shower the offender applied baby oil to the victim's penis and masturbated the victim's penis. 6. The offending in Count 4, aggravated sexual intercourse without consent pursuant to s61J(1) of the Crimes Act, involved the offender then sucking the victim's penis following which the offender said to the victim "Shh. It'll be all right." to which the victim said "This is a bit weird". The offender then said "It's not weird". The victim said "I feel very uncomfortable", to which the offender replied "Don't be uncomfortable, it's all good". 7. The offender and victim then returned to the entertainment room. The offender then played pornography on a computer and masturbated his own penis in the presence of the victim. This was conduct of which the offender had previously been found guilty of, namely Count 7 in the offender's first trial. 8. The victim then went to bed in a nearby bedroom. Shortly before 6:00 a.m. on 22 October 2020 the victim returned a lawnmower to his father's house nearby in Raymond Terrace before returning to the offender's house where he stayed until approximately 2:00 p.m. The victim disclosed the offender's sexual misconduct to the offender's partner during the morning and to his parents later that day.

The sentence hearing

The sentence hearing took place on 22 August 2024. The Crown sentence summary became Exhibit A. It included the criminal antecedents of the offender which included a number of firearms offences in 2015 for which he had received two fines, and three bonds pursuant to s9 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA").
Exhibit A also included a report from Dr C Kable dated 13 May 2023. Dr Kable is a child and adolescent psychiatrist who had been treating the victim since 2010 and his report sets out his understanding as to the impact of the sexual assaults on the victim. He opined that the victim's pre-existing mental health problem which included anxiety and depression had been much worse since the assaults and that he had developed a post-traumatic disorder. He opined:- "His capacity to cope with stress has reduced. He is much more anxious and fearful and can feel unsafe for no reason. He needs a light on at night. He has trouble sleeping and frequently nightmares related to the assaults. He has lost trust in people and confidence in himself."
Dr Kable also noted that the victim had experienced suicidal ideation and had taken steps to put them into action. On several occasions following such events he had been hospitalised for psychiatric assessment. He also tried a number of other ways of harming himself and had suffered flashbacks. Dr Kable described the most disturbing feature was the frequent auditory hallucination suffered by the victim which was the voice of the man who assaulted him, repeating things he had said at the time of the assaults.
Exhibit A also included a victim impact statement. This statement had been amended and became Exhibit B. It was read by the victim's mother in court and is referred to below.
Exhibit C was the Justice Health records concerning treatment provided by Justice Health to the offender during his previous incarceration, particularly in respect of his functioning neurological disorder and anxiety.

The offender's evidence

Exhibit 1 was a report from Ms C Hare, forensic psychologist dated 12 May 2022 which had been prepared for the offender's previous sentencing. She had assessed the offender on 5 May 2022 via video conference for just over three hours. She had been qualified with a document entitled "Finding of fact consistent with guilty verdicts" in relation to Counts 2 and 7 on the first Indictment, a NSW Police Force bail report dated 28 October 2020 and a neurological report by Dr Patricia Caruana dated 9 March 2021.
Ms Hare set out the offender's family and developmental history. She took a history that following the offender's parents separation when he was aged 14 or 15 years, he lived with his mother and experienced emotional and sexual abuse at her hands, and also witnessed her physically abusing his brother. From age 16 he lived with his father in Queensland but continued to provide financial support to his mother. The offender reported a lack of support and absence of feelings of love, safety or support during his childhood. He did however have a positive experience at school and described himself as a popular and social student. He left school at 16 to commence a pastry chef apprenticeship and also completed qualifications in audio engineering and gained numerous tickets associated with working at a power station. He described himself as a hardworking and reliable employee who got along well with colleagues and supervisors. He was now in receipt of a Disability Support Pension after having been diagnosed with Functional Neurological Disorder ("FND") in 2018. This is alternatively known as Conversion Disorder within the DSM-V. The offender reported that he is unable to control the right side of his body and experiences tremors in his right arm and leg, and sudden muscle seizures in his neck. He also suffers migraines, fatigue, brain fog, speech difficulties, short-term memory problems and non-epileptic seizures. The offender also reported a long-standing history of asthma, hypertension and high cholesterol. He was being prescribed multiple medications which included psychotropic medications for depression and anxiety.
Ms Hare took a history of the offender's psychosocial/psychosexual history. The offender was assessed for risk of sexual reoffending by way of the static-99R actuarial risk assessment. His score placed him at an average risk for being charged with or convicted of a future sexual offence. He also underwent a dynamic risk assessment pursuant to the Risk of Sexual Violence Protocol (RSVP) following which Ms Hare opined that the offender presents with moderate risk/treatment needs in relation to his dynamic risk factors for sexual reoffending. She further opined that the offender has poor social boundaries and that he endorsed markers of loose sexual boundaries. He did however present with a number of factors which were protective against future sexual offending including stable accommodation, pro-social sexual interests and identity, stable intimate relationship, social connection to adults and a positive social network. These matters would go some way towards mitigating his average likelihood of sexual reoffending however based on the psychological risk assessments applied, Ms Hare opined that the offender presents an average risk of sexual reoffending. She further opined that he would find a custodial sentence more onerous than someone who does not have his FND.
Exhibit 2 was a report from Dr P Caruana dated 4 May 2022. In it, Dr Caruana explained that FND "is a term for symptoms that have no anatomical substrate on imaging and where neurological testing such as EEG etc is negative despite the presence of clinical symptoms." FND often occurs in the context of internal stressors and in the case of the offender those were a severe anxiety disorder and significant underlying trauma. She further opined that imprisonment would have a negative impact with the offender prone to experience worsening of his FND and the underlying trauma.
Exhibit 3 was a health summary sheet from Singleton doctors outlining the offender's diagnoses in 2022 of anxiety, asthma, depression and hypertension and setting out his then current medications.
Exhibit 4 comprised three emails sent by the offender's partner Christine Shankley to Corrective Services in November 2022 concerning shortcomings in treatment being provided by Justice Health to the offender during his incarceration and her difficulty obtaining access visits via AVL during the COVID-19 pandemic.

The Crown submissions

The Crown relied on a thorough written outline of submissions setting out the circumstances of the various offences, the maximum penalties prescribed together with the standard non-parole periods as set out above. The Crown submitted that the following were aggravating factors pursuant to s21A(2) of the CSPA:- (eb) the offence was committed in a home - although location of offence not victim's home it was a place in which he was entitled to feel safe. (g) the emotional harm caused by the offence was substantial.
The Crown set out the following mitigating factors pursuant to s21A(3) of the CSPA:- (b) the offence was not part of a planned or organised criminal activity. (e) at the time of the commission of the subject offences the offender did not have any significant record of previous convictions.
The Crown set out relevant sentencing principles which are not in issue and are referred to in my determination below.
The Crown submitted that the objective seriousness of the offending for each offence fell in the mid-range of objective seriousness. For the offences in Counts 1 and 3, offences pursuant to s61KD(1)(a) of the Crimes Act the Crown relied on the following relevant factors:- "(i) Opportunistic offences - not planned; (ii) Each act of sexual touching consisted of masturbation of the victim's penis - the second involving the offender applying baby oil to assist with the act - each act was the prelude to an act of sexual intercourse by way of fellatio; (iii) Both sexual touchings - like the acts of intercourse were each committed under the guise of providing sexual instruction to the victim. The reality was each act was committed solely for the offender's sexual gratification; (iv) No overt violence or threats yet offender showed complete disregard to wishes of victim; (v) Offence of exploitation of victim. Offender took advantage of the victim's cognitive impairment & inherent vulnerability - power imbalance between the two - offender was step-father of victim's best friend; (vi) Offence in a home: victim was a guest in the offender & best friend's home; (vii) Age difference of 20 years between victim & offender; & (viii) Victim put in fear."
In respect of Counts 2 and 4, offences pursuant to s61J(1) the Crown relied on the following factors pointing each offence being in the mid-range of objective seriousness:- "(i) Opportunistic offences - not planned; (ii) As for two aggravated sexual touchings (see above) each act of sexual intercourse was likewise committed under the guise of the offender providing sexual instruction to the victim whereas in reality each act was committed solely for the offender's sexual gratification; (iii) No overt violence or threats yet offender showed complete disregard to wishes of victim; (iv) Offence of exploitation of victim. Offender took advantage of the victim's cognitive impairment & inherent vulnerability - power imbalance between the two - offender was step-father of victim's best friend; (v) Offence in a home: Victim was a guest in the offender & best friend's home; (vi) Age difference of 20 years between victim & offender; & (vii) Victim put in fear."
In relation to the principle of parity in sentencing, the Crown submitted that both acts of masturbation (Counts 1 and 3) were "the obvious prelude to the consummating acts of sexual intercourse". The Crown submitted that each of the four offences were committed under the guise of the offender providing a distorted form of sexual intercourse to the vulnerable victim and were committed for the sole purpose of the offender's sexual gratification. The Crown submitted that totality of the offender's conduct warranted a deterrent sentence of significant full-time custody. The Crown relied on Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] as to the question of accumulation or concurrence in sentencing.
Further, the Crown submitted the sentences imposed by the Court of Criminal Appeal in respect of Counts 2 and 7 also have a part to play in the sentencing exercise for the index offences. The principle of totality required the sentencing court to review any sentence to determine whether it was just and appropriate where the previous sentences were closely related in time and character to the offences now before the court relying on Mill v The Queen (1988) 166 CLR 59 at [63].
The Crown relied on Brockie v R [2019] NSWCCA 120 as a comparable case involving two counts sexual intercourse pursuant to s61I upon a vulnerable victim suffering congenital deafness, cerebral palsy and cognitive impairment.
The Crown characterised the four offences as being opportunistic sexual offences occurring in quick succession on the one night. The offender's criminality involved exploitation of the vulnerable victim and taking advantage of the power imbalance in the relationship between the offender and the victim who was the autistic best friend of his stepson. Such exploitation was solely for the offender's sexual gratification with total disregard for the wishes and feelings of the victim. The Crown submitted the only appropriate sentence was one involving a substantial period of full-time custody.
In his oral submissions the Crown also referred to the Court of Criminal Appeal's decision in Aryal v R [2021] NSWCCA 2 as a comparable case involving two counts of aggravated sexual assault upon a vulnerable victim. The Crown rehearsed his submission regarding the application of the principle of totality which involved factoring in the penalties previously imposed by the Court of Criminal Appeal in respect of Counts 4 and 7 on the original Indictment. There was no dispute that the objective criminality of the offending for the index offences fell within the mid-range and that Counts 1 and 3 occurred as a prelude to the offending in Counts 2 and 4 which were all part of one "rolling episode".
The Crown agreed that the offender's three months in custody meant that the starting date for any sentence to be imposed was 22 May 2024. The Crown conceded that a finding of special circumstances should be made pursuant to s44 of the CSPA and that the offender's neurological condition would make custody more onerous for him and therefore should be factored in as a mitigating factor.

The offender's submissions

Counsel for the offender relied on a written outline of submissions in which it was conceded that the threshold in s5 of the CSPA had been crossed in relation to each of the offences and that it was appropriate for the court to impose an aggregate sentence. He identified the primary issues on sentence as:- 1. The assessment of objective seriousness of the offences; 2. The impact of Mr Ferguson's physical and mental health on the sentence; 3. The effect of the offender's background of disadvantage on the sentence; 4. Application of the totality principle, both as between the sentences to be imposed for the presence offences and the sentence imposed in August 2022; and 5. Whether there are special circumstances.
Counsel for the offender agreed that the objective seriousness of each of the offences fell within the mid-range of objective seriousness for offences of their kind. As the victim's cognitive impairment was an element of the offences the fact that he was vulnerable could not additionally be regarded as an aggravating factor pursuant to s21A(2).
Counsel conceded that the victim impact statement revealed the offending had serious adverse psychological consequences for the victim however care needed to be taken to avoid double counting substantial emotional harm as an aggravating feature given that serious sexual assaults can be expected to have such consequences, relying on Stewart v R [2012] NSWCCA 183 at [61]. Counsel submitted that the fact that offences occurred in a home should not be additionally regarded as an aggravating factor as it was taken into account in determining the objective seriousness of the offences.
The offender agreed with the statutory mitigating factors submitted by the Crown pursuant to s21A(3)(b) and (e). The offender further submitted that he facilitated the administration of justice by indicating that there would be no issue taken at trial that the victim suffered from a cognitive impairment at the time of the offences. This removed the need for the Crown to call expert evidence from a psychiatrist on that issue and warranted some "albeit marginal", reduction in his penalty pursuant to s22A of the CSPA.
Counsel referred to the reports of Dr Caruana and Ms Hare regarding the offender's functioning neurological disorder. Ms Hare had characterised it as a "severe and chronic condition" involving a complex predominant right sided movement disorder and non-epileptic seizures. The offender relied on Ms Hare's opinion that the offender would find a custodial sentence more onerous as a result of suffering this condition. In addition, in 2022 Ms Hare had diagnosed the offender as suffering social anxiety disorder (social phobia) with panic attacks and FND, or conversion disorder, a recognised mental condition which meant that a custodial sentence would weigh more heavily upon him than it would for others.
Counsel submitted that the offender's mental conditions rendered him a less suitable vehicle for general deterrence and some moderation of the sentence was therefore appropriate relying on Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
Counsel for the offender also relied on Ms Hare's observation that the offender had experienced a "dysfunctional developmental trajectory" during which he was subjected to emotional and sexual abuse by his mother and had witnessed her physical abuse of his brother and aggressive behaviour towards his father. This led to the offender developing "entrenched dysfunctional means of emotional coping" which had remained with him in adulthood. The offender relied on the following explanation by Brereton JA in Hoskins v R [2021] NSWCCA 169 at [57] of the expression "profound childhood deprivation" as used by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37:- "There is no magic in the word "profound", and it is not necessary to characterise an offender's childhood as one of "profound deprivation" before the principle is engaged. The principle is that social disadvantage may reduce an offender's moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage."
His Honour went on to state, "However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending."
Counsel referred to the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences. It was submitted that the offender's dysfunctional upbringing constituted a background of social disadvantage and warranted the moderation to both his moral culpability and the need for general deterrence in favour of his rehabilitation. It was not submitted that there was a causative link between the offending and the offender's upbringing.
In regard to the offender's prospects of rehabilitation counsel for the offender referred to his assessment by Ms Hare of him presenting as an average risk of sexually reoffending. He also referred to the protective factors to which Ms Hare referred to which mitigated his risk. It was submitted that the offender retains prospects of rehabilitation notwithstanding his denial of guilt.
Counsel referred to the application of principles of totality in sentencing so as to achieve appropriate relativity between the totality of the criminality and the totality of the sentences and in particular to avoid a crushing sentence, relying on R v MAK (2006) 167 A Crim R 159 at [16]. It was submitted that there should be a significant degree of concurrency in sentence between all of the four offences so as to accurately reflect the totality of the criminality involved.
It was further submitted that totality was relevant in having regard to the previous sentence imposed by the Court of Criminal Appeal in respect of Counts 4 and 7 on the original Indictment. The usual question posed is "What would likely have been the effective head sentence imposed if the offender had been sentenced for all offences at the one time", relying on Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at [16].
Finally counsel for the offender submitted that the court should make a finding of special circumstances pursuant to s44 of the CSPA on the basis of:- 1. Physical health, namely the physical manifestations of his FND and daily support he requires; and 2. Mental health, namely Social Anxiety Disorder and FND as well as processing his childhood trauma, which would benefit from Mr Ferguson being supervised on a longer period of parole.
In his oral submissions counsel for the offender rehearsed his submissions regarding the objective seriousness of the offending in each count falling in the mid-range but submitted that given the breadth of conduct contemplated by the offences in s61J, those offences fell at the lower end of the mid-range. He further submitted that whilst the standard non-parole period was a legislative guidepost, given the combined physical and mental impairment of the offender the non-parole period to be imposed should be shorter than the standard non-parole period prescribed. Further the Justice Health records demonstrated the difficulties the offender faced in custody because of his neurological condition. This was borne out by the issues raised by his partner in her emails in November 2022 (Exhibit 4). She had raised matters of concern that had been predicated by Ms Hare.
Counsel referred to the comparable cases of Brockie v R [2019] NSWCCA 120 and Aryal v R [2021] NSWCCA 2 submitting that the latter was more instructive given that the offender had been convicted of two aggravated offences following trial. Whilst the victim suffered greater disability and was perhaps more vulnerable, in that case there had been more planning by the offender in attempting to meet the victim. Further in this case the offender had a more compelling subjective case however in arriving at an overall sentence the indicative sentences imposed may be helpful to the court.

Determination

Section 3A of the CPSA sets out the following purposes of sentencing:- "The purposes for which a court may impose a sentence on an offender are as follows - (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons 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 or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
There is no dispute between the parties that the objective seriousness of the offending for each of the offences in Counts 1 to 4 fell in the mid-range of objective seriousness for offences pursuant to s61KD(1)(a) of the Crimes Act (Counts 1 and 3) and s61J(1) of the Crimes Act (Counts 2 and 4). Section 61J(1) however covers a broad range of sexual misconduct and I accept the offender's submission that the offending in both Counts 2 and 4 fell towards the lower end of the mid-range for such an offence. In coming to that assessment I take into account all of the factors relied on by the Crown and outlined above regarding the objective seriousness of the offending.
The moral culpability involved in the offending was also high in relation to each count, given that the offender opportunistically took advantage of a vulnerable victim who he knew to be cognitively impaired. As the victim's cognitive impairment was an element of Counts 2 and 4 I do not take it into account as an aggravating factor pursuant to s21A(2) of the CSPA.
I find the following aggravating factors pursuant to s21A(2) of the CSPA:- (eb) The offences were committed in a home, namely, the home of the victim's friend who was the stepson of the offender. I accept the Crown submission that it was a place where the victim was entitled to feel safe. (g) I accept the emotional harm caused by the offending was substantial.
I accept that the following were mitigating factors pursuant to s21A(3) of the CSPA:- (b) The offences were not part of a planned or organised criminal activity; and (e) At the time of the commission of the index offences the offender did not have any significant record of previous convictions.
The offending, whilst of short duration, involved the exploitation of a vulnerable victim by the offender who was considerably older than the victim who was 18 years of age. It did involve a breach of trust but not to the extent that it could be regarded as an aggravating factor pursuant to s21A(2)(k) of the CSPA. Further, the absence of an aggravating factor such as physical violence does not operate in mitigation of this offending.
I also find that the offender did facilitate the administration of justice by not putting in issue at trial whether the victim suffered from a cognitive impairment which assisted to the extent of remitting the need for the Crown to call expert evidence from a psychiatrist on that issue. It was however a matter that could easily have been established and therefore has marginal weight in mitigation of penalty pursuant to s22A of the CSPA.
The offender by his counsel has advocated a reduction in sentence based on the principle in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, namely, that he suffered profound childhood deprivation which should be given full weight in sentencing. That deprivation was based on Ms Hare's observation that the offender experienced a "dysfunctional developmental trajectory" as a result of being subjected to emotional and sexual abuse by his mother and by witnessing his mother's physical abuse of his brother and her aggressive behaviour towards his father. This was the basis upon which Ms Hare opined that the offender developed "entrenched dysfunctional means of emotional coping" which was not however causative of his offending conduct. I accept that the offender's dysfunctional childhood did give rise to social disadvantage so as to reduce his moral culpability for the offending however I do not find that the offending arose as a result of a learned response to situations arising from the circumstances of that social disadvantage. The offender had gone on to obtain qualifications in a number of areas and worked successfully throughout his adult life until his diagnosis with FND in 2018. He had committed no offences of a sexual nature prior to the index offending therefore the principle in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 cannot be given its full weight in sentencing here.
I accept however that the offender suffers a significant physical disability by way of his diagnosis of FND which has left him with a complex predominant right-sided movement disorder and frequent suffering of non-epileptic seizures. I accept Ms Hare's opinion that it is a severe and chronic condition which together with his mental health diagnoses of anxiety and depression amount to significant impairments which diminish the need for general deterrence (which is usually significant in sentencing for aggravated sexual offences) and will make any custodial sentence more onerous for him than the general prison population. These factors also diminish to an extent the need for specific deterrence in sentencing given the salutary impact of his incarceration on the offender.
I find that the offender is at a medium or average risk of sexual recidivism based on the assessment of Ms Hare, and I find that given his pleas of not guilty and ongoing denial of his offending that his prospects of rehabilitation must be regarded as guarded.
I have taken into account the victim impact statement read by the victim's mother in court. It is a poignant example of the devastating and ongoing impact suffered by victims of sexual assault which the courts have long recognised may endure throughout a victim's life, particularly here given that the victim was vulnerable as a result of his autism and cognitive impairment. I therefore accept that it has had an enduring deleterious effect on the victim, but I have not taken the victim impact statement into account so as to aggravate the objective seriousness of the offending or the offender's moral culpability for it.
I acknowledge that the principle of totality in sentencing for all the offences including Counts 4 and 7 for which the offender was previously sentenced by the Court of Criminal Appeal must be applied in accordance with the principle in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. This involves the application of sentencing principles, notionally on the basis that I am sentencing the offender in respect of all of the offending in six Counts so as to achieve proportionality in sentence which will reflect the totality of the criminality involved.
I have taken into account the maximum penalty of 7 years imprisonment and standard-non parole period of 5 years prescribed for Counts 1 and 3, and the maximum penalty of 20 years imprisonment and standard non-parole period of 10 years for Counts 2 and 4. The maximum penalties and standard non-parole periods are statutory guideposts in the sentencing synthesis, and indicate the seriousness with which Parliament views such sexual offending.
I am satisfied that the threshold in s5 of the CSPA has been crossed and having considered all possible alternatives no sentence other than imprisonment is appropriate in the circumstances. I intend to proceed by way of an aggregate sentence pursuant to s53A of the CSPA and in order to ensure transparency in the sentencing process I am to provide the following indicative sentences, taking into account the objective seriousness of the offending, the aggravating and mitigating factors set out above including the significant subjective case of the offender:- 1. Count 1 - aggravated sexually touch another person without consent pursuant to s61KD(1)(a) of the Crimes Act - 18 months imprisonment with a non-parole period of 12 months. 2. Count 2 - aggravated sexual assault pursuant to s61J(1) of the Crimes Act - 3 years imprisonment with a non-parole period of 18 months. 3. Count 3 - aggravated sexually touch another person without consent pursuant to s61KD(1)(a) of the Crimes Act - 18 months imprisonment with a non-parole period of 12 months. 4. Count 4 - aggravated sexual assault pursuant to s61J(1) of the Crimes Act - 3 years imprisonment with a non-parole period of 18 months.
The significant subjective matters referred to above and the opportunistic nature of the offending have warranted a variation of the standard non-parole period for each of the indicative sentences referred to above.
In arriving at an aggregate sentence I am obliged to take into account the principle of totality as explained by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:- "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
I am satisfied that given that the offending here involved one course of criminal conduct of a relevant short duration and that the offences in Counts 1 and 3 were preparatory to the more serious offending in Counts 2 and 4 there should be significant concurrency of sentence and limited accumulation. I further find that special circumstances are established pursuant to s44(2B) of the CSPA based on the offender's significant physical and psychological needs for which he will require ongoing care whilst in custody.
I have concluded that the offender is to be sentenced by way of an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years to date from 22 May 2024.

Orders

I hereby make the following orders:- 1. You are convicted of the following offences:- 1. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. 2. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. 3. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did sexually touch AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. 4. On or about the 22nd day of October 2020, at Raymond Terrace in the State of New South Wales, did have sexual intercourse with AT without his consent, and knowing that he was not consenting, in circumstances of aggravation, namely, that at the time of the offence AT had a cognitive impairment. 1. I sentence you by way of an aggregate sentence to a non-parole period of 2 years commencing on 22 May 2024 and expiring on 21 May 2026. 2. The balance of the term will be a period of 2 years to date from 22 May 2026 to expire on 21 May 2028. 3. Your parole eligibility date will therefore be 21 May 2026. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence. 4. I direct that the reports of Dr Hare dated 12 May 2022 and Dr Cuarana dated 4 May 2022 be provided to NSW Corrective Services. Annexure A - Findings of fact consistent with guilty verdicts (518704, pdf)

Amendments 20 September 2024 - Paragraph numbering. 20 September 2024 - Insert (No.2) 23 September 2024 - Annexure A DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 September 2024

At a glance

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Before

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Catchwords

Judgment (9 paragraphs)

Parties

Cases Cited (12)