plaintiff. Hare was sentenced to an aggregate 15 months’ imprisonment and released forthwith on a recognisance with $500 security, to be of good behaviour for two years and attend assessment at Autism...
Key principles
For this offender, the court accepted that autism spectrum disorder materially contributed to the offending and reduced his moral culpability. It consequently moderated the...
The court assessed the offending as serious, but not as serious as the Crown submitted, taking account of sporadic messaging, the single conversation with PM, and expert evidence...
The court concluded, after considering the sentencing factors in s 16A of the Crimes Act 1914 (Cth) and the available sentencing options, that imprisonment was warranted. It...
Issues before the court
Whether the offender’s autism spectrum disorder contributed to the offences and reduced his culpability.
How serious the offending was, including the effect of the undercover recipients and the frequency and character of the communications.
Whether imprisonment was appropriate despite the offender’s circumstances and prospects of rehabilitation.
Plain English Summary
Hare was sentenced for online sexual messages and indecent images sent to undercover police officers posing as 14-year-old girls. The judge found the conduct serious, but accepted that Hare’s autism spectrum disorder materially contributed to it and reduced his culpability. The judge also considered his early guilty plea, remorse, support and prospects of rehabilitation. The sentence was 15 months’ imprisonment, but Hare was released immediately on a two-year recognisance with a $500 security and conditions, including assessment and compliance with lawful directions from Autism Spectrum Australia.
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Deep Dive
2,124 words · generated 29/09/2026
What happened
In R v Hare [2020] NSWDC 127, Grant DCJ sentenced Gary Zachary Hare in the District Court of New South Wales after guilty pleas to three Commonwealth offences. The charges concerned online communications with people Hare believed were under 16: one grooming offence and two offences involving indecent communications. The maximum penalties recorded in the judgment were 12 years’ imprisonment for grooming and seven years for each indecent-communication offence.
Whether the sentences should be accumulated in part and how to structure the aggregate sentence.
Cited legislation
No linked legislation citations have been extracted yet.
The police used online identities of two 14-year-old girls, CF and PM. The facts accepted for sentence described a series of sexual messages to CF between March and September 2018. Hare proposed sexual acts, encouraged her to masturbate, discussed meeting and sex, and on 10 September sent an image of his penis. On 11 September, in a separate conversation with PM, he sent images of his penis and naked torso and made further sexual comments. He was arrested on 27 September 2018. In interview, Hare recalled the conversations and images. He said he had intended to have sex with CF, but also described a meeting as a “pipe dream” and a fantasy.
A central feature of the sentencing was Hare’s diagnosis of autism spectrum disorder (ASD), without intellectual impairment. The judge had reports from forensic psychologist and clinical neuropsychologist Dr Susan Pulman and forensic psychiatrist Dr Kerri Eagle. Their opinions addressed Hare’s social and communication deficits, capacity to appreciate the effect of his conduct, risk of incarceration and treatment needs.
The judge imposed an aggregate sentence of 15 months’ imprisonment. Hare was released forthwith on a recognisance, with security of $500, to be of good behaviour for two years. The recognisance also required him to attend an assessment at Autism Spectrum Australia in Sydney and comply with its lawful directions during the bond. The judgment’s text uses numbering that restarts in different sections, so this deep dive refers to its section headings rather than assigning unverified global paragraph numbers.
Why the court decided this way
The court’s reasoning balanced the objective seriousness of the offending against Hare’s personal circumstances, while treating the two as distinct parts of the sentencing assessment. The judge recognised the public interest in protecting children and the need for general deterrence because such offending can be difficult to detect. But he did not treat deterrence as an automatic answer to the sentencing question.
On culpability, the judge accepted Dr Pulman’s opinion that it was “highly likely” Hare’s autism-related deficits contributed to the criminal behaviour. Dr Eagle’s report described how social isolation and difficulty forming relationships may have contributed, and how Hare’s capacity to appreciate the adverse psychological impact on a child was likely impaired. The judge concluded that the condition contributed materially to the offences, reducing Hare’s moral culpability and, correspondingly, the need for denunciation and punishment. The judgment also says that Hare was an inappropriate vehicle for general deterrence and that the significance of specific deterrence was reduced. These are findings about this offender on the evidence before the sentencing court, not universal propositions about people with ASD.
The court did not accept the Crown’s full characterisation of the offending as prolonged and persistent. It accepted that the CF communications extended over six months, but found that messaging was sporadic, and that the contact with PM was a single conversation. At the same time, the judge described the language to CF as indecent, explicit and sexual, and accepted that the offending was not spontaneous or impulsive. The undercover status of the recipients did not reduce the objective seriousness: the judge relied on R v Gajjar (2008) 192 A Crim R 76 at [55] for that point.
The judge considered Hare’s ASD evidence when assessing the manner of communication. He noted that the expert evidence described impaired understanding of social rules and inappropriate sexualised behaviour. He considered the evidence that Hare’s social functioning was much less developed than might be expected for his chronological age, and that his mother described him as emotionally stuck at about 12. Against that background, the judge characterised the communications as “childlike musings”, while still treating them as serious offences. That characterisation explains the judge’s evaluation of the facts; it does not remove the explicit content or the fact that Hare pleaded guilty to the offences.
Other sentencing factors included contrition and the early guilty plea. The judge found genuine remorse, referring to Hare’s expressions of shame and his letter to the court. The Crown acknowledged the early pleas facilitated the course of justice, and the judge applied a 25 per cent reduction. The court also considered his lack of prior convictions, family support, employment and prospects of rehabilitation. Dr Eagle described his vulnerability to misinterpretation, isolation and difficulty adapting to a rigid custodial environment. The court found he had good prospects of rehabilitation, including because he had insight and a supportive family.
That assessment did not mean the court avoided imprisonment. The judge expressly considered s 17A(1) of the Crimes Act 1914 (Cth), which, as quoted in the judgment, permits imprisonment for a federal offence where no other sentence is appropriate after considering other available sentences. He concluded that imprisonment was warranted. The practical result was a custodial sentence coupled with immediate release on a recognisance.
Before and after state of the law
This judgment was a sentence decision, not a ruling that changed the statutory elements of grooming or indecent-communication offences. It applied the federal sentencing provisions to the circumstances of one offender. The judgment itself states that s 16A requires a sentence or order that is “severity appropriate in all the circumstances of the offence” and that relevant matters in s 16A(2) must be considered. It also says Part 1B of the Crimes Act 1914 (Cth) was not intended to cover the field or operate as a code.
The judge’s approach to general deterrence was informed by DPP (Commonwealth) v De La Rosa [2010] NSWCCA 94 at [177], and by authorities emphasising individualised sentencing. In discussing DPP (Commonwealth) v Garside [2016] VSCA 74, the judgment referred to the rejection of a requirement for “exceptional circumstances” before a non-custodial disposition could be appropriate. It then stated that each case must be decided on its own circumstances and cited Parente v R [2017] NSWCCA 285 against treating imprisonment as an inevitable outcome. The court also cited R v Moon [2000] NSWCCA 534 at [81] for the proposition that general deterrence cannot dictate a sentence that is disproportionate or inappropriate for the offender.
The judgment therefore reflects the court’s use of existing sentencing authorities, not a newly announced test. It demonstrates how those principles were applied alongside the federal statutory framework: the judge found imprisonment warranted but considered the offender’s condition, culpability and rehabilitation when fixing the sentence and release arrangement.
For the aggregate sentence, the court relied on s 68(1) of the Judiciary Act 1903 (Cth) to pick up the aggregate sentencing scheme in s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for federal offences dealt with on indictment. It cited DPP (Cth) v Beattie [2017] NSWCCA 301 at [141]–[146] concerning that scheme. It also referred to totality and proportionality through R v Holder; R v Johnson (1983) 3 NSWLR 245 at 260 and Pearce v The Queen 194 CLR 610.
Key passages with plain-English translation
The judge accepted Dr Pulman’s opinion that Hare’s ASD-related deficits were “highly likely” to have contributed to the offending. In plain English, the judge found a connection between Hare’s condition and his conduct, rather than treating the diagnosis as merely background information. That finding affected the assessment of culpability and deterrence.
The judge said, “I do not accept that the offending was prolonged and persistent with CF.” In plain English, the court accepted the overall six-month date range but did not regard the pattern of messages as continuous or persistent throughout that period. The distinction was relevant to the assessment of seriousness, but did not mean the messages were acceptable or non-criminal.
The court described the communications as explicit and sexual, but also said their character was consistent with the evidence of Hare’s difficulties understanding social rules. The practical meaning is that the judge considered both the content of the messages and the evidence explaining Hare’s social functioning. The judgment did not treat one as cancelling out the other.
On sentencing, the judge said, “I form the view that a sentence of imprisonment is warranted.” This is important because the court’s findings about reduced culpability and rehabilitation did not lead it to impose no prison sentence. Instead, the court imposed a term of imprisonment and then ordered Hare’s immediate release on a recognisance.
Finally, the judge explained to Hare that if he remained of good behaviour for two years, he would not go to gaol, while a breach could result in a judge sending him to gaol for 15 months. The formal disposition also required an assessment at Autism Spectrum Australia and compliance with its lawful directions during the bond. This explains the practical operation of the sentence as stated by the judge, rather than describing an unconditional discharge.
What fact patterns trigger this precedent
The decision is most relevant as an example of sentencing reasoning where an offender has pleaded guilty to online sexual offences involving a person believed to be under 16, and expert evidence connects a diagnosed condition to the offending and to the offender’s capacity to understand social interactions or the impact of conduct. It is also relevant where the recipients are undercover police: the court accepted that this did not lessen objective seriousness, while still considering the particular pattern and content of the communications.
The case illustrates the importance the sentencing judge gave to specific facts: the months-long date range but sporadic exchanges, a separate single conversation with PM, explicit sexual language and images, the offender’s stated intention and descriptions of a proposed meeting as fantasy, and evidence about social functioning. It also shows the court considering remorse, early pleas, lack of prior convictions, family support, work and rehabilitation prospects.
It should not be read as establishing that ASD necessarily reduces culpability, that online grooming communications are less serious where a recipient is an undercover officer, or that a recognisance will be the sentence in a similar case. The judgment made individual findings about Hare based on the reports and other material before it. The court expressly recognised the objective gravity of the crimes and the public interest in protecting children.
How later courts have treated it
The judgment supplied here contains no information about how later courts treated R v Hare. It does not cite later decisions applying, distinguishing or criticising its reasoning. On the material provided, it is not possible to say whether later courts have adopted its characterisation of ASD-related offending, its assessment of undercover communications, or its particular sentencing outcome.
The authorities discussed in the judgment are earlier authorities, not later treatment of Hare. For example, the judge distinguished R v Asplund [2010] NSWCCA 316 on the facts, describing that case as involving determined and continuous conduct, manipulation and gifting, and found Hare’s offending different. The judge also considered DPP (Commonwealth) v Walls [2014] VSCA 323, noting both the more serious features of that offending and the court’s discussion of the limits of comparable-case reasoning. Those comparisons inform the 2020 decision; they do not establish how it was later received.
Still-open questions
The judgment does not set out a general method for measuring how much a particular diagnosis should reduce culpability. It records expert opinions and the judge’s acceptance of their connection to Hare’s conduct, but does not provide a formula or threshold applicable to other cases. The decision also does not resolve how courts should assess the relationship between ASD and sexualised offending where the expert evidence, the individual’s understanding, or the pattern of conduct differs.
The decision gives only a brief account of the operation of the recognisance and its breach consequences. It does not discuss how the assessment condition would be administered in practice, the detail of the treatment plan, or what would constitute non-compliance with the condition to follow lawful directions. Those matters cannot be inferred beyond the conditions stated in the disposition.
The judgment also does not determine a general boundary between sporadic and persistent online offending. It describes the communications in this case as sporadic despite their occurrence over six months, but provides no general test for other factual patterns. Nor does it identify a general sentencing range: it expressly refers to comparable cases as a limited aid, given that sentencing circumstances differ.
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Judgment (19 paragraphs)
[1]
Judgment
HIS HONOUR: This is an extempore judgment.
Zachary Hare has a diagnosis of autism spectrum disorder without intellectual impairment. What is autism? Autism describes a group of related neurodevelopmental disorders. The disorders are associated with abnormal brain development and the symptoms must therefore be present from early childhood. Impairment in social communication can present as a delay in development of spoken language, an inability to engage in reciprocal conversation, unusual or repetitive use of language, or abnormalities in pitch, stress, rate, rhythm, and intonation of speech.
Impairment in social interaction can involve difficulties of eye contact, lack of interest in other people, not giving or seeking comfort, or difficulty making friends, restricted or stereotype patterns of behaviour, interest and activities. This might present as an unusual and/or encompassing preoccupation, compulsive adherence to ritual, or unconventional use of play objects such as preoccupation with part objects. These social impairments in autism have been described as withdrawal from people, lack of attention to others, lack of communication gestures, treating parts of people as detached objects, lack of eye contact, treating people as inanimate objects, attention to non-social aspects of people, lack of awareness of the feelings of others. In social interactions there is a noticeable lack of turn taking in dialogue, an inability to participate in two-way reciprocal social interaction, deficits in the understanding of social rules governing what is acceptable in conversations. For example, a tendency to ask embarrassing questions such as, "How old are you?" to a total stranger.
Individuals with ASD may start to talk to people without first using boundary markers, such as "Hello", or attempts to engage the listener's attention by using eye contact, and have difficulty in taking another person's perspective. Research indicates that many adolescents with ASD experience symptom deterioration in areas such as frequency and intensity of sensory abnormalities, compulsions, self-injurious behaviour and aggression, cognitive rigidity and inappropriate sexualised behaviour.
His diagnosis raises the following issues:
Did the mental illness contribute to the commission of the offences and if so, his moral culpability will be reduced.
Does his diagnosis mean that he is an inappropriate vehicle for general deterrence and the necessary modification of that consideration?
If a custodial sentence was imposed would it weigh more heavily on the offender?
To assist me in the consideration of those issues I have reports of Dr Susan Pulman, Forensic Psychologist and Clinical Neuropsychologist dated 4 October 2019, and Dr Kerri Eagle, Forensic Psychiatrist dated 27 February 2020.
[2]
Did the mental illness contribute to the commission of the offence?
Dr Eagle in her report dated 27 February 2020 stated at p 10,
"I am of the view that Mr Hare's lack of meaningful relationships with others, loneliness and lack of social integration arising from his disorder, likely contributed to the alleged offending behaviour. Mr Hare's capacity to socially or emotionally appreciate the adverse psychological impact that his offending behaviour may have on a young person or child is likely impaired by his disorder. Although, he can appreciate intellectually that his conduct is illegal his cognitive deficits, including his deficits in higher executive function and problem solving, would also have impaired his capacity to reflect on his behaviour."
Dr Pulman in her report dated 4 October 2019 at p 9 indicated as follows:
"Although Mr Hare functions within high average range of intellectual abilities, his level of social functioning is grossly impaired and more akin to an individual in late childhood. He lacks the social skills necessary to effectively engage in social interactions and develop friendships and relationships at the level of his same aged peers. Although from a cognitive perspective he may understand that certain behaviours and/or actions are illegal, he lacks the social or effective understanding of what is appropriate and inappropriate behaviour. He has not been able to establish friendships which are lasting and meaningful. Mr Hare has been unsuccessful in gaining employment in the open labour market and relies on his family for support by working on the family farm. He has a history of bullying and having been assaulted when attempting to establish friendships. Consistent with other ASD, his interests are narrow, and he has detached himself from others choosing to engage in videogames and social interactions via the internet. It is highly likely that Mr Hare's deficits associated with autism spectrum disorder has contributed to him engaging in the alleged criminal behaviour."
I am satisfied on balance and accept the opinion of Dr Pulman that "It is highly likely that Mr Hare's deficits associated with autism spectrum disorder has contributed to him engaging in the alleged criminal behaviour". It follows that his moral culpability for his offending is reduced and consequently so is the need to denounce the crime. He is an inappropriate vehicle for general deterrence and the significance of special deterrence will be reduced: DPP (Commonwealth) v De La Rosa [2010] NSWCCA 94 at [177].
[3]
If a custodial sentence was imposed would it weigh more heavily on the offender?
Dr Eagle in her report at p 10 under the heading "Risk of incarceration" expresses the opinion,
"Mr Hare is likely to be more vulnerable than the typical offender in a correctional facility due to the social and communication deficits arising from his ASD. He is more vulnerable to being misinterpreted or misinterpreting the conduct of others. He would find it difficult to adjust to a highly inflexible and regimented regime that would not be able to account for his specific needs. He is prone to boredom, loneliness and mood disorders due to his developmental disorder."
[4]
THE OFFENCES
Mr Hare has pleaded guilty to the following:
Sequence 2, use carriage service to transmit an indecent communication type person believed to be under 16 years (on 11 September 2018) contrary to the Criminal Code of a Commonwealth s 474.27A(1). The maximum penalty is seven years imprisonment;
Schedule 3, use carriage service to groom person believed to be under 16 years for sexual activity (between 13 March 2018 and 13 September 2018) contrary to the Criminal Code Commonwealth s 474.27(1). The maximum penalty is 12 years imprisonment.
Sequence 4, use carriage service to transmit an indecent communication to a person believed to be under 16 years (on 10 September 2018) contrary to the Criminal Code Commonwealth s 474.27A(1). Maximum penalty seven years imprisonment.
The maximum penalties are an important guidepost in the assessment of sentence. A judge should steer by the maximum penalty but not aim for it.
[5]
THE FACTS
The statement of facts is contained in exhibit 1. It occupies four pages. I summarise it as follows:
1. Mr Hare was a user of Facebook, sequences 3 and 4 (conversation with CF). On 13 March 2018 police began a text-based conversation online with the identity of a 14 year old girl, CF. She, as part of the conversation said that she was 14. On 19 March 2018 Mr Hare told her that he wanted her to "suck my dick and take off your pants and underwear, then sit on my face so I can suck your pussy". He also said, "I'd love you, have sex with you while you were in your netball dress". The offender attempted without success to start a video chat with CF. He also told her that he would buy her anything she wanted.
2. On 4 April 2018 there was a further text based conversation. He told her that she should delete their conversations because he would get into trouble for talking to a girl so young. On 9 April 2018 he told her that while pushing her "onto the bed he would rub between your legs until you moan". He encouraged CF to masturbate. He said, "I want you to touch your pussy, imagine me doing it". Fellatio, "Would you suck my dick? I would teach you". And penetrative sexual intercourse, "I would stick my dick in your pussy". He told CF to delete everything.
3. On 16 April 2018 he asked CF whether she would run away with him to the Gold Coast. CF asked the accused if he was serious about his earlier suggestion that they meet in person. The accused replied, "Yes, and we can have sex". He told CF to delete everything. On 8 May 2018 he said, "I wish you were here on the farm with me in my bed, lick and suck your pussy and squeeze your boobs. I'd kiss your neck and nipples. Rub my dick with your hands and mouth."
4. On 8, 20, 21 and 27 August 2018 there was further texting. He imagined that the two would perform together sexual acts, including oral and anal intercourse. On 10 September 2018 the offender talked about meeting up with CF and suggested that they "meet at Maccas and I will fuck your brains out". He went on to say, "Well me fucking you is illegal. Well I'm going to have sex with an underage girl". In the same conversation he sent CF an image of his penis and said, "I'd stick that in your pussy right now if I could" (sequence 4). At the end of the conversation he told CF to delete everything.
5. On 11 September 2018 police began a text-based conversation with the accused using an online identity of PM, also a 14 year old girl. During the conversation the accused asked PM whether he could "stick my dick in your pussy". He followed up with two images of his penis and one of his naked torso. He informed PM that he would like to perform oral sex on her and added, "I will go to prison if you tell your parents or teacher or police I showed my dick". On 13 September 2018 he was banned by Facebook.
6. On 27 September 2018 police attended the property where the offender lived and he was arrested. During his interview he said that he remembered having about a dozen conversations with CF, that he would ask her if she was sexually active, and encourage her to masturbate. He said that he found it arousing. He also remembered sending pictures of his penis. The offender said that he initially planned to meet CF for sexual play or "to mess around", but that never eventuated because she lived too far away. He remembered that they later arranged to meet in Deniliquin for sex. When asked whether his intention on both occasions was to have sex with CF knowing that she was 14, the accused responded "Yes". He later said, however, that he regarded meeting CF for sex as "a pipe dream" and a fantasy. The accused also said he remembered chatting to PM on Facebook. He said that he remembered sending her inappropriate communications and pictures of his penis.
[6]
SECTION 16A(2)(a), NATURE AND CIRCUMSTANCES OF THE OFFENCE
[7]
Sequence 3 - Grooming
The Crown submitted that the offender engaged in online communication to procure CF to engage in sexual activity with him. The conversations at times were indecent in both content and expression.
[8]
Sequence 2 and 4 - Indecent material
The offender sent to CF an image of his penis and to PM two images of his penis and one of his naked torso. The Crown submitted that the offending was objectively very serious. The Crown referred to R v Asplund [2010] NSWCCA 316 and made the following points:
The offending was prolonged and persistent occurring over six months
The nature of the indecent material communicated
The extent to which the intent to future sexual activity with himself is exposed and developed
The nature of the future sexual activity intended
The age differential between victim and offender.
I accept the Crown submission that if the recipient is an undercover police officer it does not lessen the objective seriousness of the offending: R v Gajjar (2008) 192 A Crim R 76 at [55].
[9]
OFFENDER'S SUBMISSIONS
Mr Trevallion, who appears on behalf of Mr Hare, relies upon the opinion of Dr Eagle at p 5 where she said,
"He could not say whether he was sexually interested in the person because he thought they were 14 years old, and stated when asked if he was sexually aroused because she was 14 years old said, 'I don't know'. He clarified; 'I was going with something that was engaging me emotionally'. He said he had an interest in potentiality rather than reality. He said that potentiality was never a disappointment. He said he had difficulty with rejection and was not going to bother with relationships anymore."
It is submitted that the offender would never have gone through with a meeting. This submission is based upon the offender telling police that he believed that a meeting up was a "pipe dream" and a "fantasy". It was submitted that although the communications with CF were conducted over a period of five months the messages were spread out sporadically over that timeframe. Some of the messages were innocuous and the offer to send money was never followed through. There was no demonstration of manipulative character or an attempt to exploit his age/power imbalance.
[10]
CONSIDERATION
I accept the offender's submission that although the use of the carriage service with CF was over six months the messaging was sporadic over that timeframe. There was a single conversation with PM. I do not accept that the offending was prolonged and persistent with CF. The language used by the offender to CF was indecent, explicit and sexual. However, the language was consistent with a diagnosis of autism spectrum disorder in that there was a deficit on the part of the offender in understanding social rules governing what is acceptable in conversations and inappropriate sexualised behaviour.
It must be remembered that Dr Pulman found,
"His level of social functioning is grossly impaired and more akin to an individual in late childhood. He lacks the social skills necessary to effectively engage in social interactions and develop friendships and relationships at the level of his same aged peers ... He lacks the social or effective understanding of what is appropriate and inappropriate behaviour."
The opinion of Dr Pulman is consistent with the observations of Mr Hare's mother who said to Dr Eagle that he "had spent his life emotionally stuck at an age of about 12 years old". She went on to say, "He did not understand social rules". Although Mr Hare was aged between 29 and 30 during the charge period and the police officer pretended to be 14, it appears to me in light of the expert evidence and the report of his mother to Dr Eagle he is an individual in late childhood. He was probably on an emotional path with the pretend 14 year old. The nature of the relationship was not a manipulate one; it was in my view, as he said to the police, that the prospects of meeting up with CF were fantasy and a pipe dream. Although indecent, they were childlike musings.
The facts of this case are very different to R v Asplund relied on by the Crown. In that case a trial was had. The evidence demonstrated a determined and continuous course of conduct towards the victim with a vast age range between the offender and the victim. It involved manipulation and the gifting of over $2,500. The offender was highly manipulative to achieve his end of sexual intercourse with a young person. He did not take responsibility for his actions. This offending was serious offending but not to the degree asserted by the Crown. I do accept the Crown submission that the offending was not spontaneous or impulsive.
[11]
SECTION 16A(2)(f) - CONTRITION
He has expressed to his mother, "that he wished that he had not done this and that he is very ashamed of himself and embarrassed". He said to us once that he hated himself. "At the airport travelling home from Sydney Zach hugged me and thanked me for supporting him, and that he was very sorry for what he had done."
He has written a letter to the Court which says, in part,
"I am sorry for my behaviour. It was truly unbecoming of anyone. It was never my intention to hurt anyone. I am ashamed to the point of being numb. I am not dangerous, just lost. I am prepared to do any course of programs that are recommended by my doctors".
I find that there is genuine contrition and remorse on the part of the offender, which is consistent with his answers in his record of interview and his early plea.
[12]
SECTION 16A(2)(g) - PLEA OF GUILTY
Mr Hare pleaded guilty before the Deniliquin Local Court on 10 December 2019. The Crown acknowledges that Mr Hare entered pleas at an early stage. It acknowledges that Mr Hare's timely pleas have facilitated the course of justice. The early plea attracts a 25% discount.
[13]
SECTION 16A(2)(j) AND (2)(ja) - THE DETERRENT EFFECT THAT ANY SENTENCE MAY HAVE ON A PERSON, THE DETERRENT EFFECT THAT ANY SENTENCES MAY HAVE ON OTHER PERSONS.
I accept that there is significant public interest in protecting children from sexual abuse. It is an offence that is hard to detect, therefore requiring a level of general deterrence to feature in a sentence to be imposed. However, I have set out my reasons earlier in these reasons for judgment why this individual is not an appropriate vehicle for general deterrence and the necessary modification of that consideration.
The offender is 31. He comes from a strong and loving family. He has no previous criminal record, but I need to be careful not to give that aspect a great deal of weight in accordance with the authorities. Some leniency can be extended to him and I will do so.
He had a tough time of school. He was incessantly bullied by his peers, not only verbally but physically. He was the butt of jokes when he was craving friendship. He was different due to his condition, and made fun of and ridiculed because of it. His mother gave a number of examples of the bullying in her letter dated 1 March 2020. She also gave an example of the fantasy world in which he lives. She said,
"At one particular assembly in primary school, I could see Zach among all the other kids sitting there looking up towards the ceiling and bouncing his head up and down. Afterwards I asked him what he was doing, and he answered that he was bouncing a ball on the wall, and his head moving up and down was in the motion of a ball bouncing. This was all part of his fantasyland".
He completed his High School Certificate and went to TAFE. He did not complete his TAFE course or his biotech degree at RMIT. He had a job at a café which lasted two to three weeks. He could not get the work done in time. He has had other short jobs. He has been employed by his parents to work on their farm. It is an isolating experience apart from access to the internet. He is required daily to feed and care for a number of animals on the farm. The job is repetitive but he knuckles down to it and would appear to have a good work ethic. His mother reports if there is a job to do he likes to get the job done. He is also responsible for driving tractors, ploughing, and preparing paddocks for seeding. He is also responsible for mixing feed and feeding out to cattle in a feedlot. The life of a farmer is not an easy one, especially in times of drought which has befallen the area from where he comes from.
As I have previously said, I am satisfied on balance that the offender's condition contributed to the offences in a material way, and therefore his moral culpability is reduced, as is the call for denunciation and punishment. He is an inappropriate vehicle for general deterrence, and I moderate that consideration.
[15]
SECTION 16A(2)(n) - THE REHABILITATION OF THE OFFENDER
It is submitted on behalf of Mr Hare that he has good prospects of rehabilitation. He has recognised and taken responsibility for his offending. He has insight. He has no criminal history. He has expressed remorse for his offending.
"ASD is a pervasive disorder. However, psychological, behavioural and social interventions are available to help individuals improve social and communication skills; learn to have healthy relationships with others and address psychological vulnerabilities associated with the disorder." Dr Eagle p 10.
Dr Eagle, in her report, sets out an extensive treatment management plan. Dr Pulman, at p 9 of her report notes that notwithstanding that the offender is 31 years of age he "has not previously been given a diagnosis of ASD. He therefore has not been provided with the opportunity to engage in therapy specifically designed to assist in addressing his social deficits".
In Yardley v Betts (1979) 1 A Crim R 329 King CJ at 333 said,
"The protection of the community is also contributed to by the success of rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in the future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations."
I take the view that he has good prospects of rehabilitation due to the following:
1. Arrest, charging and prosecution have been salutary lessons to him.
2. He has a supportive family around him.
3. He is in fulltime employment.
4. He has insight into his offending.
[16]
SENTENCE CONSIDERATION
In Director of Public Prosecutions(Cth) v Garside [2016] VSCA 74 Justices Redlich and Beach said at [61],
"During the course of the hearing the Director accepted that courts must be careful not to impose a standard to a sentencing task that is not prescribed by the statute. They conceded that the use of the term 'exceptional circumstances' in Guest and then in Zarb was 'problematic'. The Directors therefore no longer pressed the argument that there must be exceptional circumstances before a non‑custodial disposition will be appropriate."
Each case must be decided according to its own circumstances. To say that gaol will be the usual result is incompatible with the judicial sentencing discretion: Parente v R [2017] NSWCCA 285. It is a prescriptive statement of what ought to be. The administration of the criminal law involves individualised justice. "Although general deterrence is important, it can never be allowed to dictate a sentence which is not proportionate to the offence committed, or appropriate to punish the particular offender before the Court": R v Moon [2000] NSWCCA 534, Howie J at [81].
I have identified that due to Mr Hare's condition he is not an appropriate vehicle for general deterrence, and I moderate that consideration. His moral culpability is reduced, and the need for denunciation and punishment are reduced: R v Hemsley [2004] NSWCCA 228 Sperling J at [33] to [36]. I accept the Crown submission that the contacts with CF and PM are separate and distinct acts involving different identities at different times. This warrants a degree of partial accumulation of sentences bearing in mind the principles of totality explained in R v Holder; R v Johnson (1983) 3 NSWLR 245 at 260, and proportionality in Pearce v The Queen 194 CLR 610. I have taken into account the principles set out in The Queen v Asplund and the cases referred to in paragraph 20 of that judgment. I have also taken into account the schedule of cases attached to the Crown submissions. I have taken into account the sentences imposed, not so that they constitute a permissible range but so that I can compare the sentences I impose to achieve appropriate consistency.
I have been referred to the Director of Public Prosecutions (Cth) v Walls [2014] VSCA 323. In that case the offender pleaded guilty to two charges of using a carriage service to transmit indecent communication, maximum penalty seven years, one charge of using a carriage service to procure a person, maximum penalty 15 years, and one charge of soliciting child pornography material, maximum penalty 15 years. The offending involved three real children aged between 14 and 15 years. The offender was 25 and 26 at the time of the offending. The complainants provided victim impact statements demonstrating real and significant harm caused to the victims. The conduct was frequent, calculated, and predatory, over a nine month period. The indecent material was graphic and explicit. His conduct was persistent and had a lasting effect upon his victims.
[17]
NO PENALTY OTHER THAN IMPRISONMENT
I am mindful that a court may, on passing a sentence of imprisonment on a person for a Federal offence if, having considered all other available sentences, it is satisfied that no other sentence is appropriate in all the circumstances: s 17A(1). The proper approach to sentencing involves the weighing up of all relevant factors in order to reach a conclusion that a particular penalty should be imposed. The Court should avoid taking a mathematical approach as this would depart from principle because it does not take into account that there are many conflicting and contradictory elements which bear upon the sentence of an offender: Markarian v The Queen 215 ALR 213. The task of a sentencer therefore is to take into account all the relevant factors and to arrive at a single result which takes due account of them all. I form the view that a sentence of imprisonment is warranted.
[18]
SENTENCE
I impose an aggregate sentence. Section 68(1) of the Judiciary Act 1903 Commonwealth applies to pick up the aggregate sentencing scheme under s 53A of the Crimes (Sentencing Procedure) Act 1999 for Federal offences dealt with on indictment: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [141] - [146]. It is necessary for me to impose indicative sentences. The indicative sentences are:
1. Sequence 2 involved a single act sending explicit photographs of his penis and torso to PM. The indicative sentence is three months imprisonment. But for the 25% discount the sentence would have been four months.
2. Sequence 3, the statutory maximum of 12 years. The indicative sentence is 13 months imprisonment. But for the 25% discount the sentence would have been 18 months. The indicative sentence has been rounded down in favour of Mr Hare.
3. Sequence 4 involved a single act on 10 September 2018 of sending an image of his penis to CF and saying, "I'd stick that in your pussy right now if I could". The indicative sentence is three months imprisonment. But for the 25% discount the sentence would have been four months.
4. The aggregate sentence is 15 months.
Mr Hare is to be released forthwith on a reconnaissance release order with a security of $500 to be of good behaviour for a period of two years.
Mr Hare, I am required under the legislation to explain that sentence to you, and I will try and do the best I possibly can, but if you do not understand what I say please speak to Mr Trevallion afterwards and he will explain it, I'm sure, far better than I can. I have sentenced you to 15 months imprisonment. You will be released today upon entering into a reconnaissance to be of good behaviour for the next two years. Once you enter that reconnaissance to be of good behaviour you do not have to go to gaol. If you are not of good behaviour for the next two years you will breach that bond. That is, you will be in breach of your promise to me to be of good behaviour. If you breach that promise that you are giving to me then in turn a judge may send you to gaol for 15 months. So it is in your interest to be of good behaviour for the next two years. And if you are of good behaviour for the next two years you do not go to gaol. So it is all up to you.
OFFENDER: Thank you sir - your Honour.
HIS HONOUR: Right. Mr Crown, are any other orders sought?
[19]
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Decision last updated: 22 April 2020
Hare was sentenced to an aggregate 15 months’ imprisonment and released forthwith on a recognisance with $500 security, to be of good behaviour for two years and attend assessment at Autism Spectrum Australia and comply with its lawful directions during the bond.
The offences are offences against the Commonwealth of Australia. In proceeding to sentence the offender the Court is required to have regard to the matters set out in pt 1B of the Crimes Act 1914 which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular, the Court should have regard to the matters set out in s 16A. However, pt 1B does not intend to cover the field and is not intended to operate as a code.
Section 16A(1) provides, "In determining the sentence to be passed or the order to be made in respect of any person for a Federal offence, a court must impose a sentence or make an order that is severity appropriate in all the circumstances of the offence". Subsection (2) sets out a number of matters that the Court must take into account if relevant.
I am cognisant of the fact that the subjective circumstances of the offender should not overshadow the objective gravity of the crime for which sentence is to be passed: R v Dood (1991) 57 A Crim R 349 at 354. The sentence I intend to impose will not be overshadowed by the subjective circumstances of the offending.
The learned sentencing judge imposed a sentence of 22 months and released the offender forthwith to be of good behaviour for 24 months. The Crown appeal was unsuccessful. Although the Court found the sentence imposed was very light, it was not persuaded that it was outside the sentences permissibly open to the judge. The Court said at [24],
"The fact that it can be said that in cases of this kind one ordinarily expects a term of immediate imprisonment does not mean that it was not open to the judge in all the circumstances of the matter before him to impose the sentence he ultimately pronounced. Further, as has been said before, while consideration of so‑called comparable cases has its role to play in determining whether a particular sentence was within the permissible range of sentences open to the sentencing judge, such assistance can only be limited, having regard to the myriad of matters (which are never the same in each case) that might be taken into account by a sentencing judge".
VAIL: No your Honour.
HIS HONOUR: Okay. Mr Trevallion, I assume there's no orders from your Part?
TREVALLION: No your Honour.
HIS HONOUR: I will make it a condition, sorry, of the reconnaissance that Mr Hare is to attend for assessment at Autism Spectrum Australia in Sydney and is to be subject to their lawful directions during the course of the bond.
TREVALLION: Thank you, your Honour.
HIS HONOUR: He does not have to go into custody; he can go straight to the counter and enter into the bond.