R v Haven

File Number: SCC 146 of 2021 NORRISH AJ:

1. The offender appears before me in relation to a serious crime that carries 12 years imprisonment by way of maximum penalty. He pleaded guilty ultimately in this court to an offence that he, on 29 February 2020 at Canberra, engaged in sexual intercourse with the victim without her consent and was reckless as to whether she had consented.

2. In relation to that pleading, I note the history of the matter so far as the matter being before the court for various mentions before the plea was entered. I am ultimately proposing to afford a discount of 15 per cent on the otherwise appropriate sentence, having regard to the fact that the giving of the plea is of utilitarian benefit beyond that of a plea entered at the commencement of a trial, and it certainly is significant in a sexual assault case, that it saves the victim the ordeal of having to give evidence about her experience.

3. With regard to the facts of the matter, the offender and the victim were known to one another. They had been in what was described in the facts as an ‘intimate relationship’, which lasted over a relatively short period between October and November 2019. I am informed in the facts that the victim then commenced a relationship with another male and the relationship with the offender concluded although I would understand that they maintained some contact. Both the victim and the offender were persons who met through a program through the Create Foundation which dealt with people in care, or who had been in care, and it is clear by way of background that both the offender and the victim had most unfortunate backgrounds.

4. The offender on 29 February 2020 sent the victim, via the social media application Snapchat, vision of him self-harming, making self-inflicted acting out cuts on his arm. The offender asked the victim to meet him and he threatened to continue to self-harm unless she did meet him. She agreed to meet him but her willingness to assist him was greeted obviously with the violence of the offence with which I am concerned. They met at the Gungahlin bus interchange, Gungahlin being, as I understand it, a norther suburb of the Australian Capital Territory, and they walked together through the Gungahlin town centre into a secluded area surrounded by large commercial bins and shrubbery, obviously out of view of others.

5. This was in the perimeter of the Gungahlin Recycling Centre. The offender sat with the victim in the shrubbery and they spoke about their respective lives and ultimately the offender grabbed the victim by the throat, pushed her upwards, pinning her against the brick wall in a standing position. He told her to lift her arms, with which request she complied. He removed her red and white striped shirt over her head and threw it on the ground.

6. In response, the victim told the offender that she did not want to do what was clearly inferred to be the intention of the offender by his conduct. She told the offender she had a boyfriend. The offender said that it did not matter and she was not to tell her boyfriend, showing a complete lack of respect for her that is consistent with his statements to the reporter from the Community Correction Service. I will come back to those matters shortly.

7. He grabbed her by the shoulders, pushed her down to her knees and sought to have her perform fellatio upon him but she pushed him away. He then pushed her away. He then pushed her to the ground, causing her to fall backwards, positioned himself on top of her. He, then having an erect penis, inserted his erect penis into her vagina. She kicked out at the offender on this and after a short time was able to manoeuvre her body from underneath him. She got up from the ground, grabbed her shirt and bag and ran to a nearby service station where she asked the police to be contacted, making immediate complaint. Police attended and she was seen to be ‘quite visibly upset’ and shaken. There is no physical injury of significance that is reported in the facts. Police conducted various investigations. She was examined at a sexual assault clinic. Items of clothing were seized, swabs were taken and the like, and statements were taken from persons who had some connection with the circumstances of the offending.

8. There was a worker for Barnados Australia who worked as a case worker who was able to confirm threats of self-harm that the offender made, conveyed, to the victim. She also gave evidence of complaint that the victim had been ‘raped’.

9. There was a message received by the victim, from the offender. In that message, he said, on 1 March, the following day: ‘Wasn’t going to come near you. I told you I’m sorry for what happen (sic) and it won’t happen again’. This message was conveyed to the police.

10. The offender was interviewed on 18 March. He gave a completely preposterous account of himself, claiming that he suffered from, what he claimed, were ‘multiple personality disorders’. He has obviously watched too many films based on fiction. There being fairly strong scientific evidence that there is no “multiple personality disorder”, unless you invent it. I will not go into the detail of what he claimed, although I have had access to his interview. He has sought to, in effect, move the blame of his own conduct to some fictional character that he thought, or said, was a manifestation of his personality.

11. The Crown’s case involved matters arising from the investigation, which were able to support, or, in the old language, corroborate, the account of the victim. This included DNA evidence, from the swabs that were obtained.

12. There were enquiries made about the mental health of the offender, in light of the fact that he made a claim of having multiple personality disorder. Reference was made, in the course of the investigation, to a report from a Mr Troy who prepared a report when the offender was 15 that I now have available to me in the defence case. The police enquiries reveal no multiple personality disorder but reference to the fact that the offender suffered from: self-defeating, and avoidant personality traits (that is, basically, self-destructive personality, as well as avoiding responsibility for his conduct); negativistic and depressive features; dysthymic disorder (which is another way of expressing depressive disorder); adjustment disorder, with depressed mood; disruptive behaviour disorder; and identity problem. A lot of these conditions, of course, are consistent with the character of his personality.

13. Police were very thorough, in this regard, because they, quite properly, were keen to investigate the claims of the offender. Attendance was made upon Child and Adolescent Mental Health Services and it is clear that the offender had had a lengthy involvement with that organisation since 2009. There was no diagnosis of multiple personality disorder and nothing consistent with the claims of the offender.

14. The offender, ultimately, as I said, pleaded guilty, after being committed for trial, from the Magistrates Court.

15. It must be said, when one considers the totality of the police investigation, the Crown case - built from the investigation, including corroboration by the presence of DNA on swabs consistent with that of the offender, and the movements of the victim from travel records - there was a strong case relying upon, of course, the account of the victim. The strength of the Crown case was acknowledged by the plea of the offender. Although, the strength of the Crown case is not necessarily a significant matter in the assessment of the utilitarian value of the plea of guilty. In fact, it is expressed – by authority in New South Wales, at least - that the strength of the Crown case is irrelevant to the assessment of the utilitarian benefit of the plea. I have not had the opportunity to research whether ACT authority conforms with that view in NSW but I was informed that was the case.

16. I need to turn to the offender’s criminal history. I note, for the purposes of my findings in this matter, that, of course, the offender was a young offender at the time of the offence. He was born in December 2002 and, thus, at the time of the offence, was 17 years, and 2 months of age. The victim was younger than he. More than a year I was told by the Crown, possibly under the age of 16. The difference in age, however, was not, in my view, significant, given their prior relationship and their common background. This is certainly not a case of a much older person taking advantage of a younger person. It is a case of a male taking advantage of a woman. First, by inveigling her to meet him, by acting out as he did, by self-harming, and then by taking her to a place where he had the opportunity to assault her.

17. He has had a most unfortunate background; I will come back to some of the detail of his background in a moment. He seems to have had a background of neglect, and deprivation of opportunity. His father is a seasoned criminal, who has been in jail many times for many acts of violence. His mother was a drug addict, who died when she was 31. It is an unfortunate upbringing, which speaks of - as I said - neglect, and deprivation. Interestingly, though, unlike a lot of people with that type of background, his criminal history, as it is provided to me, is, in reality, non-existent.

18. He committed an offence on 6 October 2020 - that is subsequent to the commission of this offence - which was dealt with in the Childrens Court and was proved without conviction with various directions given in relation to his probation. He does not have, as is commonly the case with people of his background and with his lack of opportunity, an ingrained record of antisocial behaviour, violent behaviour, or, for that matter, sexual misconduct.

19. I will sentence him on the basis that at the time of the offending, he was a person without prior convictions, and without prior adverse records, so far as criminal conduct is concerned.

20. There is a Pre-Sentence Report from the Community Corrections section of the Corrective Services Department in the ACT. It is a very thorough report in a range of ways and it is a very revealing, and disturbing, report in a range of ways.

21. There is no oral evidence from the offender. But, in the circumstances, I see no significance in that.

22. The report deals with his family background. The detail contained within that history is consistent with the material tendered, by learned counsel for the offender, and some of the ‘evidence’ that is contained within his submissions. The offender has been in foster care for much of his life. His parents were involved in crime, as I said. He had little contact with his mother while in foster care. He is not quite sure how old he was when she died. It is clear, independently, that he has been in the control of different care authorities for well over 11 years.

23. He disclosed that he was in some form of de facto relationship, for the last three years, which, on my understanding, would mean that he has been in a de facto relationship since he was 16, and was in such a relationship when he had an intimate relationship with the young victim in this particular matter.

24. His life, in this de facto relationship, such as it may be, is one of living in motor vehicles, or living in, what I can see to be, unsafe accommodation. He claimed to be an Aboriginal person, but he actually was not sure of his heritage and Aboriginality is not a significant issue in this case.

25. He suffered bullying, and isolation, throughout his school years. This has had an impact upon his mental health. He had been on Jobseeker payments for a period of time. He claimed that he was in employment but was unable to supply a business name for the employer. It turns out, with some information that has been provided to me today, that he has been employed with a roofing business since 24 January 2022. Of course, that is only a very short time. He does not have a strong history of employment, consistent with a person who has been in and out of care control, with no parents to really guide him, with no centre in his life to provide some moral and other assurance and direction.

26. He has been abusing alcohol since he was 12, although he has not drunk alcohol in the last two years, except for an occasion on New Year’s Eve last year. He does not seem to have now a significant alcohol and drug problem, but he does use cannabis. He does not have much in the way of pro-social contact, has little in the way of recreational or leisure interests. He made various claims about the way in which he had been assessed by psychologists and psychiatrists. He claimed to have made multiple self-harm attempts, which may well be true. What was disturbing about his interaction with the Community Corrections officer was his lack of respect for the victim, his failure to see the effect upon her of his conduct, seeing himself more as the victim, and his lack of respect, it would seem, for other women in the statements that he made.

27. He also claimed that he was thinking of using explosives to blow up the courtroom to kill both himself and the victim of the offence before the court. He showed, in his oral statements, disregard for the consequences of his actions. He was sent off to mental health services for an assessment. No major mental illnesses were recorded in their records over the period of time that he had been in contact with them and in any event, for a number of years, particularly in recent years, he had continuously declined engagement with mental health services to the point where they closed their file.

28. He was frustrated at the fact that current counselling options that may have been available were closed to him. He did tell the officer from Community Corrections he had previously been diagnosed with Attention Deficit Hyperactive Disorder. He expressed views about the outcome of the proceedings and the like that do not engage him favourably with the court, and he made a lot of statements to the reporting officer that were counterproductive and frankly – as his counsel put it, but in a different way – idiotic.

29. In the report, it is quite apparent given the nature of his background, the state of his presentation and the like, that there are a large number of things that need to be addressed if he were subject to any sort of community-based order, and these things would apply even if he was granted a non-parole period. He needs counselling and treatment in relation to his mental health, his attitudes, his alcohol and drug use, his accommodation, his employment. He needs to participate in a sex offender program. He needs to engage with housing support services. He needs to seek assistance from a financial support service. He needs to address, significantly, the childhood trauma that he has suffered. He needs to be encouraged to undertake what are called ‘pro-social’ activities and friendships and I have noted those various matters as being identified as areas of need that he is either unable to address or has not been inclined to address.

30. In the material tendered by his counsel as part of the evidence before me is a range of material both as to his background, some of which I have summarised before, and the circumstances of his father. Including, I might mention, two judgments relating to his father. The first, in relation to being sentenced in respect of an offence of burglary and aggravated robbery, possession of stolen property, and a knife in a public place. The second, a judgment relating to his father’s attempt at the last moment to be granted the freedom from custody to attend what I understand to be the funeral of the grandmother of this offender.

31. His counsel, in the defence bundle, set out details of his personal history, which I am prepared to accept, relating to the deprivations of his childhood, sexual abuse occurring as a child, reference to ACT Health records, which have obviously been inspected, a referral letter, for example, written in 2009 in which it demonstrates back then – and we are talking 13 years ago when the offender would have been six or seven years of age – considerable disturbance quite consistent with the neglect that he had experienced at that time. There is evidence of difficulties with sleeping and decreased tolerance, being bullied at school, increased aggression, an unhappy life attitude, loneliness. A whole raft of circumstances that could only contribute to a miserable existence. And, as I said, little or no assistance from his parents. He has been to many schools both in the ACT and NSW. At one point, he lived in the Nowra area with grandparents, as I understand it, obviously due to his mother’s inability to look after him.

32. One of the documents within the defence bundle is the report of Mr Troy, a psychologist, referred to in the Crown case and is also the subject of specific submissions by counsel for the offender in the case before me. I am drawn in that particular report – as I said, prepared when the offender was 15 years of age – to various parts that may explain some of the outrageous things the offender has said in the course of interviews with police, but particularly in the Pre-Sentence Report.

33. I hasten to say, if I thought in any way that I could take some of the offender’s claims in terms of threats to others seriously, rather than grandiose acting out, I would have had no hesitation in giving greater weight to specific deterrence and making sure that he spent a substantial time in custody to deter him from further offending. But his situation is far more complex than simplistic notions such as I just disclosed.

34. Mr Troy’s report – and it is a very detailed report, although it is aged – refers to the offender’s apprehension and mistrust of others, his deprecation of self-worth, his willingness to be demeaned and placed in an inferior light, his permission of others to exploit and mistreat him. He seeks closeness and affection but cannot achieve it. He experiences recurrent anxieties, extended periods of depression. His thinking is occasionally distracted and confused, and his concern with social rejection and humiliation is often intensified by his tendency to elicit rejection.

35. He is frequently self-absorbed. He can be distracted by inner thoughts that intrude on his social communication. In line with his self-defeating tendencies, he may stir-up fractious encounters in which his failures and shortcomings are exposed:

[He has a] perverse form of expiation. Such discordant acts preclude a socially rewarding and consistent lifestyle, and together with his characteristic of affective dissonance, did little to promote favourable attention and constructive interest from others. As a consequence, he may drift further into a self-sabotaging and ineffectual life pattern.

36. The report says:

Pervasive instability and ambivalence intrude constantly into the stream of this teen’s everyday life resulting in fluctuating attitudes, erratic or uncontrolled emotions, and a general capriciousness and undependability. Displaying marked shifts in mood, he may exhibit extended periods of dejection and apathy interspersed with spells of irritability, anxiety or resentment. Dejection, depression and self-destructive acts are common. His anguish and despair are genuine, but they are also a means of expressing hostility, a covert instrumentality to frustrate and retaliate. He may voice dismay about the sorry state of his life, his sadness, his resentment, and his ‘nervousness’. This adolescent may feel discontent, cheated, and unappreciated that his efforts have been nought, and that he has been misunderstood and is disillusioned. But here again ambivalence intrudes; perhaps, he may say, it is his own unworthiness, his own failures, and his own ‘bad temper’ that are the cause of his misery and the pain that he brings to others.

37. That analysis when he was 15 sits somewhat at odds with the absence of any criminal history up until that period of time. The report goes on dealing with his personality, with a number of aspects of his pattern is disparaging his memories and achievements, noteworthy of attention is his tendency:

To restrain his personal attitudes and feelings, to express views contrary to his actual beliefs, and to demean his own convictions and opinions, he never appears to be undone by his apologetic and self-deprecating attitudes. Observation over a period of time is likely to reveal that these self-reproachful attitudes are largely exaggerated, artificial and force presenting an overblown façade of simulated impressions.

38. I am sorry to quote this in detail but it is important to see these observations, as his counsel submitted to me, in the light of what the offender said to the Community Corrections officer.

39. Under the heading ‘Clinical Syndromes’ the report said:

Pervasive feelings of inadequacy, worthlessness and guilt appear to have taken the form of suicidal ideation and the clinical picture of this socially awkward and introverted adolescent. Timid, shy, and apprehensive, he is especially sensitive to public humiliation and rejection. Worthy of note has been tolerance of daily unhappiness and emptiness. However, his former willingness to accept feelings of worthlessness and guilt has now taken the turn of self-destructive thoughts. Plagued with self-doubts and thoughts of death, he may be notably saddened by the view that he is both socially unattractive and physically inferior. Fearful of expressing his discontent to others who might further reject or humiliate him, he deals with his frustration by turning it inward, becoming intropunitively depressed and suicidal.

When this adolescent discharges intense and contrary emotions, he does so in brash and reckless ways. He is likely to demonstrate thoughtless and impulsive actions, be behaviourally restless, and exhibit a general expansiveness and hyper-distractibility. Consonant with his habitual pattern, he may be easily provoked into temper outbursts and angry and disruptive actions, creating an ever-increasing spiral of difficulties within family settings and with social authorities.

40. It goes on with diagnostic hypotheses, such as personality disorders, including self-defeating and avoidant personality traits, and clinical syndromes of dysthymic disorder, depressive disorder, adjustment disorder with depressed mood, disruptive behaviour disorder and an identity problem. The psychologist outlined some suggestions for treatment which presumably were not followed up.

41. I have a letter from his partner before the court. It is a well written, well-reasoned letter. She has her own difficulties, she says she has PTSD, Bipolar Disorder and Schizophrenia which are very significant mental disabilities. What this offender can do to help her is perhaps problematic. But she says he has been of support and I am mindful of the factors the other material shows me that she and the offender have a very eclectic lifestyle and do not have much security in life living in cars and living with people who themselves are violent and drug addicted.

42. The material in relation to his father shows him to be a person of almost no influence on the offender’s life but demonstrating a character for anti-social behaviour not yet demonstrated, save for the matter I am now concerned with, by the offender up until this period of time.

43. It is a very sad situation. But as I said, albeit that there are some very negative matters arising from the Community Corrections report, it seems to me consistent with his conduct towards the victim, at least in meeting with her on the night in question. A great deal of it is 'acting out', which brings us to the issue of how one can dispose of an offender such as this allowing for the fact that he was a young offender at the time in circumstances where ordinarily greater weight would be given to general personal deterrence.

44. This brings me back to the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The Sentencing Act has a particular provision at s 7, setting out the “purposes of sentencing”. They are well-known and they apply in many jurisdictions across the Commonwealth of Australia. I referred to them specifically this morning in another matter: adequate punishment; general and personal deterrence; protection of the community from the offender; promotion of an offender’s rehabilitation; making an offender accountable for his or her actions; denouncing his conduct; recognising the harm done to the victim of the crime. These are all matters ordinarily of significance. In a case such as this, that is a crime of this character the serious sexual assault of a young person, albeit not much younger than the offender, one would have thought most of them, if not all, would be of relevance to varying degrees.

45. In Veen v The Queen (No 2) [1988] 164 CLR 465, the High Court of Australia said by majority that the purposes of sentencing therein identified, four of the seven that we now have, were like “guideposts” which sometimes pointed in the opposite direction. But ACT legislation has other provisions, which are of importance in this matter in relation to s 7, concerning to the situation or the circumstances of what are called “young offenders”. This offender, I am told, is a young offender and Part 8A of the Sentencing Act has a role to play here. The offender was under 18 when the offence was committed.

46. In relation to young offenders, s 133G of the Sentencing Act notes that the sentence of imprisonment, if it is to be imposed, must be a last resort and for the shortest appropriate term. The court must consider making a combination sentence consisting of a sentence imprisonment and a Good Behaviour Order with a supervision condition. The legislation provides, I hasten to say, that if the offender is to be imprisoned, bearing in mind he is still under 21, he must be held in what is called a “detention place” rather than a prison.

47. Of particular relevance, in this sentencing exercise, however, is s 133C. That section specifically provides –

(1) despite section 7(2) [of the Act] in sentencing a young offender, a court must consider the purpose of promoting the rehabilitation of the young offender and may give more weight to that purpose than it gives to any of the other purposes stated in section 7(1).

(2) also, in sentencing a young offender, a court must have particular regard to the common law principle of ‘individualised justice’.

48. To my mind, by regard to the legislation, by regard to the circumstances of the offender and his background, matters then requiring particular attention in this case include consideration of significant principles relating to sentencing that have been laid down by courts superior to mine and superior to other appellate courts of intermediate appellate jurisdiction throughout the Commonwealth of Australia.

49. One such case is the case of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy). Now, true it is Bugmy is a case that is said to be concerned with the circumstances of indigenous offenders. Mr Bugmy was a citizen of Wilcannia, a town to the west of NSW with a very significant and very disadvantaged indigenous population. But the observations of the majority in Bugmy in relation to the circumstances of a disadvantaged background to sentencing have applicability not just to aboriginal offenders but also to this particular man.

50. Their Honours in that matter pointed out at [43]:

The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

51. I point out of course this offender does not have a long history of offending.

52. The majority went on to say at [44]:

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision.

53. Of course, their Honours went on to qualify that, as was pointed out by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 (Engert), sometimes a mental illness, whilst it may require less weight to be given to general deterrence, may require greater weight to be given to specific deterrence. This aspect of the matter, the disadvantage of the offender, overlaps to a considerable extent with what I understand of the offender’s mental state over an extended period of time. There has not been presented to the court a formulated diagnosis of a particular mental illness other than particular personality disorders. But on the other hand, it is quite clear both by reference to the circumstances of his upbringing, and the extent of his disadvantage, the lack of parental guidance and the like, through no fault of his, that there is considerable disturbance in the mind of this offender reflected in his conduct towards the victim, reflected in his statements to the investigating police and of course in his statements to the reporter from Community Corrections.

54. He had one particular insight, however, which was noted by me during the course of the submissions. That is he observed to the reporter that in fact during the period of time since he was arrested in effect - without expressing it the way he did - he had been of good behaviour, which is a matter of some significance given his background, in determining what are his prospects of rehabilitation, notwithstanding his other statements to which have made reference.

55. Before I come back to R v PM [2009] ACTSC 24 (PM), a judgment that was brought to my attention by the Crown for another purpose, I was drawn to the decision of the Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 (De La Rosa). It is a judgment that needs to be considered in the context of some submissions made by the learned Crown prosecutor about mental disorder and the reliance by the Crown upon a particular Victorian decision of R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins). McClellan J, then the Chief Judge of the Common Law Division of the NSW Supreme Court, specifically referred to Verdins when he gave his judgment in respect of the relevance of mental disorder and mental illness in sentencing. It may be said of course that the offender has not had a diagnosed mental illness, as I have said, but there is ample evidence in my view of a mental disorder. The extent to which it has contributed to his offending is hard to say. It certainly has contributed to his acting out, which drew him to the victim or drew the victim to him on the night of the offence in question.

56. At [177], McClellan J referred to a number of authorities, including Engert to which I made earlier reference, and Verdins, and concluded this:

Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction of the sentence.

…

It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced.

It may reduce or eliminate the significance of specific deterrence.

Conversely, it may be that because of the person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence.

(citations omitted)

57. I pause for a moment to point out that those matters discussed in the context of weight to be given to general and personal deterrence need to be considered in the light of s 133C and the scheme of Part 8A of the Sentencing Act. This judgment has received further consideration in NSW, particularly, but in other States as well and there has been a body of decision making that has reflected upon, for example, the issue of whether a mental illness or disability is one that needs to be causally connected to the offending behaviour.

58. And one such judgment which I refer to in general terms, is the judgment of Kearsley v The Queen [2017] NSWCCA 28; 265 A Crim R 233 (Kearsley), a case involving a medical specialist who assaulted a female medical practitioner in his apartment, suffering a mental disability but a mental disability that was not causally connected to the offending. In that particular case, it was determined that the mental condition was still a relevant matter. That is, the relevant mental instability was a matter relevant to the assessment of the appropriate sentence.

59. Button J, in a recent decision of Moiler v The Queen [2021] NSWCCA 73, said this at [59]:

…care should be taken not to take too prescriptive an approach, in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence. It is noteworthy that the first dot point of that oft-quoted paragraph [in De La Rosa] speaks of material contribution to offending, not singular or direct causation of it.

60. It is said in general terms that lesser weight may be given to general deterrence, even if there was no causal link between a mental abnormality and the offence. It should be proper, however, for me to also note the judgment of Verdins was approved in particular respect by the High Court in R v Guode [2020] HCA 8; 267 CLR 141, particularly by the majority at [8], where Verdins said:

Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

61. Here, of course, we get back to the fundamental problem that while there is this plethora of indicia of mental instability and a range of explanations for the mental instability, to some extent reflected in the circumstances of the offending, are not benefited by a specific diagnosis which provides material assistance.

62. I raised with counsel for the offender that it is a very strange thing, indeed, to be sentencing an offender for a serious offence, particularly a young offender, and not to have an up-to-date psychiatric or psychological report. That is not to say it has not been obtained, and it may well be that it was entirely unfavourable to the offender. But it seems to me also that it is very important for courts to be fully informed of the situation of an offender when important decisions have to be made about disposal that may need to reflect upon specific deterrence and protection of the community.

63. Here, ultimately, the protection of the community and the protection of the victim from the offender, notwithstanding his statements to the reporter, have to be seen as – if I go back to a point I made earlier – to the absence of criminal history other than a minor matter that occurred subsequently and the matter with which I am now concerned. The fact that the offender has primarily been able to stay out of the way of the criminal law over the last two years since he committed the index offence is a matter of some significance, in combination with his youth, in combination with consideration of his background of deprivation that I have referred to by reference to Bugmy principles, and by reference to the legislation to which I referred.

64. I come now, in the context of all the submissions that have been put by the parties – and it should be taken that what I have discussed to the present time is in full consideration of those submission. The decision of PM was referred to by the learned Crown in her helpful submissions, and at one point, was sought to be relied upon for comparative sentencing purposes.

65. I do not believe I can rely upon for PM for comparative sentencing purposes. Yes, the offender was a young person without prior offences, as was this offender; he was a young Aboriginal man. But the character of the offending was far more serious than that with which I am now concerned; attack upon a stranger, in circumstances where a number of offences were committed, one of which carried a much greater maximum penalty, where the victim suffered multiple injuries (putting aside the humiliation, an injury that arises from being sexually penetrated), those injuries being outlined at [12] of the remarks of the learned sentencing judge, Refshauge J.

66. Some idea of the violence that was perpetrated on the victim is to note that she had loose teeth; she had bruising and cuts to her face and lips; a laceration to her forehead; a fracture to the distal fibula, amongst other injuries. His Honour discussed the operation of s 133C at [49] and following. His Honour correctly pointed out in the appropriate case the legislation is clear that whilst one may not give greater weight, or give weight that normally would be given, to the purposes of sentencing in s 7(1) of the Sentencing Act, the court is not precluded from so doing, and he very carefully analysed all that in the context of the case before him. The case before him was an appropriate case where he could approach the matter, albeit with some element of mercy, by still giving weight to general and personal deterrence.

67. This case, however, is one, notwithstanding its seriousness, having regard to all the circumstances of the matter – the relationship between the offender and the victim, the character of any injuries she suffered and the like – it is one where the import of s 133C, as I have identified it, should be respected.

68. The Crown provided other comparative authorities. There were a number of authorities identified – I will not cite the references – of sentences in relation to offences committed by people much older than this offender, where lenient sentences were imposed, either by short terms of imprisonment or suspended sentences, for acts of sexual violence.

69. Those comparative authorities of younger offenders that the Crown referred me to – and particularly, putting them on the record, they appear at pages 9 to 12 of the Crown's very helpful written submissions – lead me to the conclusion that the sentence that I propose, in all the circumstances of this matter, is not outside the range of sentences that have been deemed to be appropriate in this type of case, giving weight to many of the matters that I have identified, that may be said at this stage to only relate to this particular offender.

70. It is not an uncommon case, although there have been cases to the contrary, where terms of imprisonment have been ordered to be fully suspended. One such case, for example, the Full Bench of the ACT Court of Appeal in R v Horton-Hegarty [2018] ACTCA 22, in respect of a matter where there were pleas of guilty to five counts of sexual intercourse with a person under 16 years, where the victim was 14 years and the offender was 21 years, and where the offender was the victim's ‘manager’, led to a sentence of two and a half years' imprisonment, fully suspended, albeit with orders for community service and the like.

71. One of the matters I noted about the sentencing of comparative young offenders, helpfully identified by the Crown, most of the perpetrators had far greater differences in age between themselves and their victims, although there are some exceptions to that, for example, R v EO [2017] ACTSC 138, a decision of Mossop J from 2017, had a 14-year-old victim and a 17-year-old offender, albeit again not sexual intercourse without consent, but sexual intercourse with a person under 16 years which I understand from some discussion at the outset of this matter may have a greater maximum penalty.

72. With regard to the plea of guilty, noting all that has been put before me, I appreciate what has been said about the matter in previous decisions that I have referred to earlier in these sittings, Cranfield v The Queen [2018] ACTCA 3, particularly the decision of the Full Court at [37]-[38]; Blundell v The Queen [2019] ACTCA 34, particularly at [12]- [14]; and also the decision of R v Nicholas; R v Palmer [2019] ACTCA 36, particularly at [39] and [52]-[53].

73. It seems to me, in all the circumstances of the matter, not unreasonable, given as I said the utilitarian value of saving the victim of having to give evidence and the timing of the plea which is always very important, to accord the offender a discount of 15 per cent. It was submitted by his counsel I should give him the full benefit of 25 per cent. That discount is inappropriate given the timing of the plea of guilty.

74. With regard to the assessment of the objective seriousness of the offending, I am not satisfied beyond reasonable doubt that there was premeditation, as was advanced by the Crown. I cannot conclude that the offender brought the victim to the meeting with a plan to sexually assault her. I do not know the detail of what their discussion was about their lives, but in the circumstances notwithstanding the remoteness of the location ultimately I could not conclude premeditation on the facts.

75. I note there was no weapon used. The duration was brief, but as the Crown properly points out, through no work of the offender. The resilience and the courage of the victim was the outstanding contribution to that. I am mindful very much, I hasten to say, of the fact that this offence can have a significant effect upon the victim, and I am mindful of the fact that the victim is a person who has had a most unfortunate disadvantaged background, as this offender has, and deserves far better than to be treated by the offender the way he treated her, given the fact that he must have fully appreciated the circumstances of her background.

76. I have had regard to her victim impact statement, as I am required to do in accordance with the terms of ss 47 to 53 of the Sentencing Act. It is correct, as his counsel points out, that his youth is a mitigating factor. I have taken that into account and it works in his favour, if I may use that expression, in the context of consider s 133C of the Sentencing Act.

77. I have accepted that there are prospects of rehabilitation, notwithstanding the stupid remarks he made to the Community Corrections reporter. I am a greater believer of “proof being in the pudding”, so to speak. When people come to me and tell me that they want to reform and I see on their record that they have many times, when given the benefit of conditional liberty broken their opportunity or turned their back on that opportunity time and time again, I approach their claims of desire for reformation with considerable circumspection. This is not such a case. Even though I am in some respects acting contrary to the statements made by the offender himself, it is the absence of other findings of guilt and charges that provides at least some prospect of rehabilitation and I should do my best to encourage that rehabilitation in accordance with Part 8A of the Sentencing Act. Hence, the proposed order that I have outlined.

78. The Crown obviously has urged me, if I might use that expression, in light of the time I have taken to address particular matters, that I should impose full time custody having regard to the character of the conduct. Ordinarily, it deserves full time custody. I accept that if the offender was older, or the offender had a worse criminal history, one would certainly be looking at a substantial term of imprisonment for an offence of this type.

79. I am required as the Crown points out, to have close regard to the various matters arising under s 33 of the Sentencing Act, and I have; including the degree of responsibility of the offender; the nature and circumstances of the offence; the personal circumstances of the victim as known to the offender – they would have been quite clear to him; any injury or damage she suffered; the cultural background, character and antecedents, physical and mental condition, as well as age of the offender.

80. The Crown cites a Victorian decision concerning the operation of Verdins principles. I believe I have dealt with that aspect of the matter by reference to the authorities cited, particularly De La Rosa, Kearsley and the like.

81. The plea of guilty, of course, is a relevant matter to take into account. Current sentencing practices and patterns are required to be taken into account. I have done that, particularly by regard to the comparative cases supplied, in fact by the Crown herself, for which I am grateful. The promotion or the rehabilitation of this offender, in my view, will not be served by, at this stage, committing him to full-time custody. This will be destructive of him, in my view. And notwithstanding his bravado, I can see a person such as him being very badly damaged in custody, to the point where, in my view, it would make him a greater danger to the community on his release than he will be to the community by my giving him this opportunity which I have indicated I am prepared to do.

82. But, I want the offender clearly to understand that, as I said, if circumstances were even slightly different from those that I have outlined from the material available to me, I would have no hesitation in sending him to jail, be it in a detention place or an adult prison, if it was appropriate for me in my power to do so. But, as the offender should also understand, if he fails to be of good behaviour, it is inevitable that he will go into custody and serve such time as the order that I make requires him to serve. Orders

83. I make the following orders:

(a) I record a conviction for the offence (CH2020/995).

(b) In respect of the above offence, the offender is sentenced to 2 years 7 months imprisonment reduced from 3 years imprisonment.

(c) The sentence of imprisonment is wholly suspended pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT) on condition that the offender enter into a Good Behaviour Order for a period of 3 years commencing on 4 February 2022 and concluding on 3 February 2025, with core conditions as per s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), including supervision by the Director-General.

I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Norrish.

Associate:

Date: 21 February 2022