R v Joel KERSHAW

FACTS

1. The facts are before the court by way of agreed facts that are contained within the Crown tender bundle, exhibit A on sentence. For the purpose of proceeding to sentence I am satisfied of the following beyond reasonable doubt.
2. The offender was born on 13 July 1994 and accordingly was 23 at the time of the offending and is now 24 years of age. The victim was aged 5 years and 10 months at the time of offending.
3. In the afternoon of 3 November 2017 a Mr Watkins, a friend of the offender invited the offender to go to the home of the mother of the victim for some drinks. This friend had been in a casual intimate relationship with the mother of the victim for some months prior to the date of the offence. The victim lived with her mother in a house in Mount Austin, a suburb of Wagga Wagga. At some time after 3pm on 3 November 2017 the offender drove his vehicle to Mr Watkins' home and they then proceeded to Dan Murphy's liquor store where a 10 pack of 375 ml cans of premixed vodka was purchased. The liquor was taken to the home of the victim's mother. The offender had met the mother of the victim only once before, which occasion was also in the company of Mr Watkins.
4. Over the next couple of hours the mother of the victim, Mr Watkins and the offender sat in the lounge room listening to music and drinking vodka. The victim was present playing in the lounge room and her bedroom but there was no interaction between her and the offender.
5. The victim went to bed at about 8pm in her bedroom. The door was pulled to but not completely closed. The victim wore a t-shirt, shorts and underpants to bed. After putting the victim to bed her mother returned to the lounge room and continued drinking and listening to music. The offender drank about six or seven cans of the vodka during the evening, Mr Watkins drank about two and the victim's mother one can.
6. At some stage of the evening it was agreed that the offender would stay overnight at the home of the victim's mother but that he would sleep on the lounge. He was given a blanket. Mr Watkins and the victim's mother went to the main bedroom where they both remained until the victim's mother heard the victim cry, which caused her to get up to investigate. On checking in the victim's room the mother found that the lounge room light was on and the door to the victim's room was wide open. On entering the room she saw the victim lying in the bed curled up with a blanket on top of her. She asked, "Are you OK baby? What's wrong? Are you alright?" The victim pointed to the doorway and said, "He was licking my private parts". The mother looked in the direction that the victim was pointing and saw the offender standing behind the bedroom door. He was wearing jeans but no shirt. The victim's mother noticed that the victim was not wearing the pants and underpants that she was when she went to bed. Mr Watkins came from the main bedroom. He and the victim's mother both yelled at the offender to immediately leave the house. The victim's mother returned to the victim.
7. The police were called and attended. The offender was found nearby and arrested.
8. The victim was taken to the local Base Hospital where she was medically examined. There was no evidence of injury and she was in good spirits. The victim was interviewed on 3 November 2017 and said that she was woken by the offender who put his finger in her private part and licked her private part. The facts recite that the child's vagina was penetrated to the extent of the inner aspects of her vulva by the offender's right middle finger. The facts also say that the child found this "hurtful".
9. The offender consented to a forensic procedure and various samples were obtained. DNA testing on the victim's vulval inner aspects and external labial swabs recovered male DNA matching the Y-profiler of the offender. That profile is also expected to occur in approximately 1 in 750 unrelated males in the general population. Testing of a COPAN swab from the offender's fingers recovered a mixture of DNA that originates from at least two individuals. Neither the victim nor the offender could be excluded as contributors of this mixture. The facts go on to say that, assuming the offender is one of the contributors, it is greater than 100 billion times more likely to obtain this mixed profile if it originates from the offender and the victim rather than it if originates from the offender and an unknown unrelated individual in the Australian population.
10. The offender was charged and has been in custody solely referable to this matter since his arrest on 3 November 2017. The sentence should date from that date.

Assessment

1. As both matters carry standard non-parole periods it will be necessary to make an assessment of the objective seriousness of the offending. I proceed on the basis that the first count relates to the digital penetration and the second count to the cunnilingus.
2. In this matter there is the complicating factor of the intellectual functioning of the offender, which is a matter to which I will be returning to deal with in some depth within these remarks. However, for the purposes of proceeding to make an assessment of the objective seriousness of the matter the offender has an IQ of 76, i.e. within the bottom 5% of the population. An issue of intoxication by alcohol and substances was raised in Dr Nielssen's report, which is part of exhibit 1 on sentence. However the issue of intoxication was not relied on by the offender at the sentence hearing. Accordingly, I ignore the references in Dr Nielssen's report and the other material to the effect that the offender was intoxicated.
3. Dr Nielssen (p 7 of his report within exhibit 1 on sentence) opines that: "Mr Kershaw's underlying intellectual disability is likely to have affected his perception of events, the extent to which he could understand the wrongfulness of his conduct and his ability to exercise proper control over his impulses when compared to a person of normal intelligence and moral development."
4. In the decision of Tepania v R [2018] NSWCCA 247, Johnson J (Payne JA, Simpson AJA agreeing) said at [112]: "In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J)."
5. His Honour a little later on the issue of moral culpability said at [119]: "Taking into account an offender's moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J)."
6. Ms Mendes submitted both orally at the sentence hearing and in her supplementary written submissions that both matters were at the low end of the mid-range of objective seriousness. The Crown submitted at the sentence hearing that both matters were mid-range, but then commented that there was not a great deal of difference between what counsel for the offender and the Crown was submitting. Going to the offending, Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]: "It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s. 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness".
7. In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]: "…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL)."
8. More recently, McCallum J, as her Honour then was, (Gleeson JA, Fullerton J agreeing) in R v BA [2014] NSWCCA 148 at [37] said: "…Penetration during an act of cunnilingus could be an aggravating factor, but I am unable to accept that the absence of penetration during such an act is a factor which supports an assessment that the conduct falls towards the lower end of the range of seriousness. The Act provides no basis for concluding that cunnilingus is to be considered any more or less serious in itself that an act of fellatio…or penetration of the vagina. Each case must be assessed according to its own circumstances. I would accept the Crown's submission that the act of cunnilingus performed by a mature man on a child of six years who is under his authority and within his family involves significant criminality".
9. The facts recite that the digital penetration was restricted to "the extent of the inner aspects of her vulva by the offender's right middle finger". As Ms Mendes submits in her supplementary written submissions, the offending was opportunistic. However the victim was 5 years of age and the offender was 23. The same observation as to the offending being opportunistic and the age of the victim applies to both offences for which the offender appears for sentence. Both offences were isolated and I mean by that there is no suggestion of any course of conduct. I note the judgment of Fullerton J in R v PGM [2008] NSWCCA 172 at [28]. Generally, the younger the victim the more serious the offence will be regarded - see for example R v AJP at [35], R v PGM at [36] and RJA v R (2008) 185 A Crim R 137 at [14]. The child said that the digital penetration was "hurtful". The fact of the actual penetration and the child saying that it was "hurtful" in my view makes the charge relating to the digital penetration slightly more serious than the other charge.
10. The offences occurred in the complainant's home where she was entitled to feel safe. The factor of statutory aggravation pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act, 1999 is made out. The fact that the offender had been permitted to stay overnight does not affect this as being a matter of aggravation - see Jonson v R [2016] NSWCCA 286 at [40]. There were no threats or admonition to the child not to tell anyone. There were no threats.
11. The Crown in submissions referred the court to R v CTG [2017] NSWCCA 163 where Hoeben CJ at CL (Hulme & Wilson JJ agreeing) said at [60]-[64]: "The two propositions relied upon by the Crown are indicative of error on his Honour's part. It was not appropriate for his Honour to take into account the absence of actual bodily harm and the absence of force and coercion as matters in mitigation of the offending so as to impact directly upon an assessment of objective seriousness. If there were any doubt on that issue, it was clarified in such decisions as Bravo v R [2015] NSWCCA 302 and Mills v R [2017] NSWCCA 87)."
12. In Bravo v R, R A Hulme J (Beazley P and Johnson J agreeing) said at [45]: "Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, "the offence is less serious because it could have been more serious". As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452: '[3] It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.;"
13. In Mills v R [2017] NSWCCA 87, R A Hulme J (Leeming JA and Beech-Jones agreeing), in addition to referring again to Grove J's statement in Saddler, said: "[57] Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], "In plain language, it does not make what has been done by an offender less serious because it could have been worse."
14. This matter would have been far more serious if threats, physical violence or the like were present but the absence of those factors does not make this matter less serious. However, in making a determination of the objective seriousness the court is obliged to take into account all of the surrounding facts and circumstances of the offending.
15. Ms Mendes submitted, correctly in my view that the offending was spontaneous and took place over a short period of time. On the issue of the sexual assaults being of limited duration the Crown at the sentence hearing drew the court's attention to the decision of R v AA [2017] NSWCCA 84, which was an unsuccessful Crown appeal. Beech-Jones J at [56] said: "…While the short duration of a sexual assault "would not ordinarily be considered as a factor which reduces the objective seriousness" of such an offence (R v Daley [2010] NSWCCA 223 at [48]; Cowling v R [2015] NSWCCA 213 at [16]), it was open to His Honour to have some regard to it (see Russell v R [2010] NSWCCA 248 at [61])".
16. In the matter presently under consideration the offending, which was isolated, must have occurred over a very short period of time.
17. Fullerton J in her judgment in R v PGM at [36] cites with apparent approval Kirby J in MLP v R (2006) 164 A Crim R 93 at [22], in that: "…The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable".
18. However, I take the age of the victim into account in making an assessment of the objective seriousness. To also take the age of the victim into account as a matter of statutory aggravation would in my opinion would lead to the error of double counting. Appropriately the Crown did not submit that I would find that the victim was vulnerable was a factor of statutory aggravation.
19. Ms Mendes submitted at the sentence hearing and in her supplementary submissions that it is difficult to discern in which order the offences were committed. There is some force in that submission, however I note the agreed facts set out that when interviewed the victim said that he put his finger in her private part and licked her private part. This is why I have proceeded on the basis that the first charge relates to the digital penetration occurred first in time although it would seem that the offences were committed very close together.
20. Following the decision of Tepania the issue of intellectual functioning of the offender is part of the assessment of the objective seriousness. The Crown submitted that this would not have a substantial effect on the assessment. Clearly, counsel for the offender submitted that the level of intellectual functioning of the offender will need to be taken into account in the assessment of the seriousness of the matter, but I did not understand counsel to specifically submit to what extent.
21. I have carefully read and considered the supplementary written submissions from Ms Mendes. Much of what is contained in those written submissions are a repeat of or slight expansion of what was put orally at the sentence hearing. Taking all of the factors to which I have referred into account the matters are within the lower end of the mid-range of seriousness, with the charge relating to the digital penetration being slightly more serious for the reasons previously enunciated. However, it needs to be restated that assessment is in the context of matters of this type that come before the court. Moreover any offending of this type is extremely serious noting again that the maximum penalty is life imprisonment.

Criminal History

1. The facts recite that the offender is 24. In 2015 he was convicted of a High Range PCA offence, in respect of which a fine and disqualification was imposed. In June 2016 he was convicted of Excluded Person Re Enter Premises and Damage to property, in respect of which fines were imposed. In October 2016 he was again convicted of Damage to Property, in respect of which the offender was placed on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act for 2 years. Given the subjective material that has been provided it is clear that the offender was under the significant influence of alcohol at the time of the commission of each of the offences.
2. In her supplementary written submissions Ms Mendes puts that the criminal history "permits a degree of leniency". The criminal history is limited and the offender is entitled to some limited degree of leniency because of that limited record. However, the offender cannot be afforded the same degree of leniency as if there was no record at all.
3. I note however that the offender was subject to an order of conditional liberty in the form of a bond to be of good behaviour at the time of offending, although that was in respect of a relatively minor matter. It was however as the Crown submitted still an order of conditional liberty. The factor of statutory aggravation within s 21A(2) of the Crimes (Sentencing Procedure) Act is made out but this will not have much practical impact on the ultimate sentence to be imposed.

General Deterrence

1. Ordinarily in cases involving the sexual assault on children there is a strong need for general deterrence to be factored into the sentence. This goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said: "The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said: 'General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.'"
2. Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]: "It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]: "This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].'"
3. This statement of principle clearly sets out the reason for the need for general deterrence to be factored into any sentence for the sexual assault of children.
4. However, in this matter the significance and the need for general deterrence is to some extent tempered by the issue of the level of intellectual functioning of the offender. There is an issue between the parties to the extent to which the intellectual functioning of the offender should impact on the role of general deterrence. I will deal with the material in more detail when dealing with the subjective case for the offender.
5. In Muldrock v The Queen [2011] HCA 39 the court said at [54]: "The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community."
6. I have carefully considered the judgment of Simpson J (as her Honour then was) (Adams & McCallum JJ agreeing) in Aslan v R [2014] NSWCCA 114 at [33]-[36]. In the decision of Ngati v R [2014] NSWCCA 125 Beech-Jones J said at [45]-[46]: "In this case it is not contended that the applicant was suffering from a "mental illness". However, it can be accepted that the intelligence testing revealed a deficit in the applicant's intellectual functioning that could answer the description "intellectual handicap". In Muldrock at [54] the High Court stated that questions as to a causal relation are less likely to arise in sentencing such offenders because they "lack ... capacity to reason, as an ordinary person might, as to the wrongfulness of [their] conduct" and this will, "in most cases", substantially lessen their moral culpability for the offence. This is illustrated by the facts in Muldrock. In Muldrock there was "unchallenged evidence of a causal relationship between the appellant's retardation" and his commission of sexual offences towards children (Muldrock at [55]). In particular, a psychiatrist had assessed the appellant in that case as being aware of the wrongfulness of his own conduct but had observed that it was "only a superficial awareness" (Muldrock at [52]), and a psychologist had concluded that he had little control over his "acting out behaviour" (Muldrock at [41]). [46] Nevertheless the approach stated in Muldrock is only expressed to be apposite to "most cases" of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the applicant was "fully aware" that his conduct was "seriously wrong". Considered in this context, the finding that he was "fully aware" was clearly a reference to the applicant having a sufficiently deep understanding of its wrongful nature and consequences."
7. Given the content of Dr Nielssen's report, particularly at page 7, and noting that Dr Nielseen was not required for cross-examination, I find that there is a causal connection between the level of intellectual functioning and the offending such as to reduce the moral culpability of the offender and mitigate the sentence. Further, given the level of intellectual functioning and that I have found there to be a causal connection between the injury and the offending, the issue of general deterrence does not warrant the same attention as it might in other cases. I note however that the issue of intoxication is not relied on and I ignore the second sentence of the fourth full paragraph on page 7 of Dr Nielssen's report.
8. The Crown's representative highlighted a complicating factor with this issue in the course of submissions at the sentence hearing, noting that the hand-written medical records at tab 3 of Exhibit 1 on sentence indicates that on 8 August 2017 the offender was assessed as having an IQ of 85, which is also described in that document as "borderline". There are no details of the testing that was undertaken on that occasion. In the circumstances however, given the more comprehensive and detailed report of Dr Blake, which includes details of the testing undertaken, I accept the findings in that report as to the IQ of the offender. Dr Blake is known to this court as a very experienced, well-regarded, able and responsible local professional in his field who has prepared numerous such reports.
9. There remains the extent to which the finding relating to the level of intellectual functioning will impact on the issues of moral culpability and general deterrence. The Crown submitted that the effect would not be substantial. Ms Mendes submitted that the impact of general deterrence will be tempered because of this issue. This is all part of the instinctive synthesis process in determining the appropriate sentence. The impact of issues such as the level of intellectual functioning are not quantified numerically. Undesirably, but unavoidably, the impact of these issues on the ultimate sentence imposed can expressed only in fairly general and not necessarily precise terms.
10. Dr Nielssen does not offer an opinion as to the extent the "underlying intellectual disability is likely to have affected his perception of events and…the wrongfulness of his conduct". The offender was 23. His IQ is 76 and the normal range is 80 to 120. In all of the circumstances. although I will take the issue of the intellectual disability into account, the impact of that issue on general deterrence will not be particularly significant.

Subjective Case for the offender

1. There was no oral evidence called from the offender, however there was a substantial volume of subjective material tendered in the offender's case; the tender bundle is exhibit 1 on sentence. The material contains a comprehensive affidavit from the offender's mother, who was not required for cross-examination. In those circumstances the Court can be more readily accept the contents of the affidavit. The material also includes a comprehensive report from Dr Roger Blake, Clinical Psychologist who tested the offender's IQ in 2016. Exhibit 1 also contains a letter from the offender. The Crown opposed the admission into evidence of that letter. I admitted the letter but given that it is entirely untested I give that letter very little weight indeed.
2. I will deal firstly with the affidavit from the offender's mother. The offender is the older of two children. His family comes from Corowa. The offender's parents are obviously decent, hard-working people. The offender was born by caesarean section and there were complications at birth. The offender suffered many medical issues in his early childhood. He has suffered from bed-wetting from when he was about 4 until he was 17.
3. The offender had difficulties with learning at school and underwent speech therapy in respect of a stutter. He had difficulty with making and keeping friends at school. He would often behave inappropriately. The offender struggled academically at school. He was also subject to significant bullying often being told things such as, "do us all a favour and just go kill yourself" and was told he was mad and weird and no one wanted to be his friend.
4. When the offender was 13 there was an incident where it was alleged he inappropriately touched a cousin. There were no criminal charges, however an apprehended violence order was taken out. This incident caused division between sections of the extended family.
5. The offender left school at 17 and initially obtained work as an apprentice cabinet maker but this did not continue after a trial period because according to his employer "things did not just sink in". The offender then obtained work at the local piggery. There was an incident in the showers with a co-worker, but the details are not disclosed in the mother's affidavit or the other material beyond that the offender was held against a wall. This incident caused the offender to become withdrawn and to miss work. It was at about this time that the offender began to abuse alcohol and gamble. He obtained labouring work with a concreting business but this did not last because of the offender's drinking.
6. In early 2014 to 2016 the offender worked for his father who gained a lawn mowing contract with the Nestle factory in Wahgunyah in Victoria. However, it seems that the offender's drinking became more problematic. The matters relating to an incident at a hotel on the offender's record occurred at a hotel in Lake Cargelligo when the offender became intoxicated and there was an issue with co-workers. The offender was dismissed and has not worked since.
7. In November 2016 the offender entered Odyssey house, which is a drug and alcohol rehabilitation facility. The offender left after about eight weeks telling his mother that "I just can't do it". The offender began drinking heavily after returning home from the rehabilitation facility.
8. In May 2017 the offender was admitted to the Calvary rehabilitation facility in Wagga Wagga. He was apparently abstinent from alcohol while an in-patient at that facility. His parents regularly visited him when he was in that facility. His parents became aware that the offender had accumulated a number of debts including a phone bill for $2,500, a $5,000 loan with the ANZ bank, which now has a debit balance of $6,500 and a $2,500 debt for computer and other equipment rented but not returned.
9. At paragraph 31 of the affidavit the offender's mother sets out that Mr Watkins was someone who the offender met while at Calvary. These offences were committed soon after the offender was discharged from Calvary. The staff at that centre indicated concerns over the offender's basic living skills. He was taken off Lexapro, which apparently the offender had been taking for depression and anxiety. His mother expresses concerns about whether the offender was properly able to care for himself on discharge.
10. The offender was living in a flat by himself at the time of the offending. Since his arrest and remand the offender's parents visit him every few weeks at Junee. The offender told his parents that he "felt really bad and terribly ashamed about what he had done and wanted to make up for it".
11. The offender has been working while in custody. The offender and his parents regularly correspond. The offender has apparently indicated an ambition to take over the family dry cleaning business upon his release. At paragraph 40 of the affidavit the offender's mother says that the last time they saw him was the best he has been. She also says, "He was clearer in his head about the seriousness of what he had done and how it might have impacted all involved from the little girl to her family, to the police and his own family". The offender continues to enjoy family support and will continue to enjoy that support upon his eventual release.
12. There is a significant volume of medical material in exhibit 1. Prepared for these proceedings is a comprehensive report from Dr Olav Nielssen, Psychiatrist. There is also a volume of historical material including an assessment by Dr Roger Blake, Clinical Psychologist dated 31 October 2016, which it would seem was prepared for one of the earlier court appearances. There is also a volume of material from paediatricians and other health professionals going back to the mid 1990's. Dr Nielseen was supplied with this material.
13. The history given by the offender to Dr Nielssen included the ingestion of MDMA (ecstasy) and possibly methamphetamine but intoxication is not relied on in any respect by the offender. The history given to Dr Nielssen also includes that he has a very limited memory of the events. He did not remember the offending. He denied having any sexual interest in children. He told Dr Nielssen that he was taken off Lexapro at Calvary, which turned him into "the old me". The report sets out (p 3) that when asked why he resumed drinking after rehabilitation he replied, "in my eyes the drinking is not the problem…it was payday…but when I drink someone offers me drugs and that is it". There is no reason to doubt that apart from a significant amount of alcohol the offender also ingested illicit substances on the night before the commission of the offending that brings him before the court.
14. The Report goes on to record the offender understands that his early physical and intellectual development was delayed. He was placed in remedial classes at school. The issues relating to the offender's cousin when the offender was 13 and the incident at the piggery when he was 17 are referred to. The offender denied experiencing hallucinations of voices or holding any delusional beliefs.
15. Dr Nielssen then goes on to record a history that the offender began drinking alcohol at the age of 16 and became a binge drinker in early adult life. He only stopped drinking while in rehabilitation. He had experimented with cannabis but found that it had adverse effects. He has used MDMA and amphetamine type drugs in social settings. He developed a gambling problem while in the last rehabilitation centre.
16. Then, Dr Nielssen sets out a review of a number of other reports and documents with which he was provided, including the report of Dr Roger Blake, who found in a report dated 31 October 2016 that the offender had a full scale IQ of 76 with the normal range being 80 to 120. Dr Nielssen also notes that Dr Blake noted a history of binge drinking.
17. At p 6 of his report Dr Nielssen diagnoses developmental disorder and substance use disorder. Under the heading "Opinion" the following is noted: "At the time of the recent interview he was fatuous, uninhibited, seemed to lack self-awareness and had limited general knowledge and reasoning ability that was consistent with the findings of intelligence testing. Moreover, the various accounts of his social performance were also consistent with a significant intellectual disability in the areas of executive function, as he was reported to be silly and impulsive as a child, did not last long in an apprenticeship and non-supported employment, seemed to have learned little from exhaustive substance counselling and social rehabilitation and ran up large debts from gambling and thoughtless spending."
18. The causal connection between the intellectual disability and the offending which was extracted when dealing with the objective seriousness of the matters appears at p 7 of Dr Nielssen's report.
19. Dr Nielssen then sets out that the offender was appropriately remorseful for his conduct within the limitations arising from his intellectual disability. However, there is also the content of the affidavit from the offender's mother. particularly as to her saying that the offender felt "really bad" about what he had done. Dr Nielssen went on to say that it was difficult to give a meaningful estimate of sexual recidivism but says that the probability of any further offences would be greatly reduced by appropriate management of his substance use disorder and appropriate social reports. The difficulty with this is that the offender has undergone several periods of rehabilitation and has had significant social support. Dr Nielssen recommends that the future treatment needs to be more of the same and would include participation in a sexual offender counselling delivered at a level that was suitable to a person of his intellectual ability.
20. For what it is worth, noting what I have already said, in the offender's letter to the court (which is at tab 7 of exhibit 1 on sentence) he says that he is deeply sorry for what he has done. He goes on to say that he is a scared 24 year old who is trying to be a better person. Now he is off the drugs and alcohol he can see more clearly the hurt that he has caused. He understands that he will need to continue to work with health professionals and he is grateful to his parents for their continued support. I do not use the content of that letter to assist in the making of any findings.
21. Ms Mendes argued that the court would find on balance that the offender is remorseful. I have no note or memory of any submission by the Crown on the issue of remorse. Given the combined effect of the evidence of the offender's mother in the affidavit, particularly the latter part of that affidavit, and the opinion of Dr Nielssen I am prepared to find on balance that the offender is remorseful.
22. However, given the number of times the offender has engaged in rehabilitation I cannot find on balance that the offender has good prospects of rehabilitation. Ms Mendes did not submit that the court would make such a finding. She did however submit that there are some very positive signs, particularly if the offender were to remain abstinent from alcohol. Added to that is the fact that the offender has enjoyed good family support. The Crown submitted, appropriately that nothing really has changed and the offender has always enjoyed that level of family support.
23. Given the history of the offender and the breach of conditional liberty, taken with the apparent circumspection shown by Dr Nielssen I cannot find that the offender is unlikely to re-offend.
24. Dr Blake in his report of October 2016 noted that the offender appeared to be socially and emotionally immature and that he would be easily baited and provoked by other males. Further, the offender tended to be grandiose and exaggerate his own life skills in order to compensate for his sense of inadequacy. This is consistent with the findings of Dr Nielssen. Dr Blake also diagnosed that the offender met the criteria for substance abuse disorder.
25. There are references at tab 8 that confirm the difficulties encountered by the offender.
26. Ms Mendes submitted both at the sentence hearing and in her supplementary written submissions that the offender should also be given some consideration for youth conformably with decisions such as Locke v R (2010) 207 A Crim R 34. I also note the decision of Thamagonsa [2015] NSWCCA 107 at [84]-[90] as well as the authorities referred to and relied upon by Hulme J in Locke. The offender was 23 years of age at the time of the offending and in my opinion cannot really be appropriately called a youthful offender. However, the offender is still a young man and the age of the offender is taken into account as part of the instinctive synthesis of determining the appropriate sentence.
27. At tab 9 of exhibit 1 on sentence is a number of historical medical reports going back to the mid 1990's confirming the medical issues which have been referred to in the later medical and psychological reports. There can be no doubt that the offender has had those medical and other issues.

General Remarks

1. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalty, the standard non-parole periods prescribed for each offences and the nature of the offending it is inevitable that there must be a sentence of imprisonment imposed in each matter. I did not understand counsel for the offender to submit otherwise.
3. Ms Mendes submitted however that I would make a reasonably generous finding of special circumstances based on the age of the offender, the fact that this is his first time in custody and there will be a need for intensive and extensive supervision upon release. I also understood Ms Mendes to adopt my suggestion that the supervision would need to include proper reintegration into the community. Again, I have no note or memory of the Crown making any submission on the issue of special circumstances. Be that as it may, the factors relied on by counsel for the offender in combination justifies a reasonably generous finding of special circumstances.
4. It is agreed between the parties that any sentence should commence on 3 November 2017.
5. Ms Mendes submitted on behalf of the offender both at the sentence hearing and in her supplementary written submissions that given that the two offences were committed at or about the same time the court could impose wholly concurrent sentences. The Crown argued that it would be inappropriate to impose wholly concurrent sentences given that there are two offences involving two types of sexual intercourse but further the extent of any partial accumulation would not be great. The Crown went on to submit that the matter might be an appropriate case for an aggregate sentence.
6. Ms Mendes cited the authority of Jodeh v R [2011] NSWCCA 194. In that decision McCallum J (as her Honour then was)(McClellan CJ at CL, Johnson J agreeing) said at [55]: "There is authority to support the proposition that the totality principle should be applied so as to obviate the imposition of a "crushing" sentence. In R v MAK (2006) 167 A Crim R 159 at [17], the Court said: '[One] matter that is considered under the totality principle is the proposition that an extremely long total sentence may be "crushing" upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform.'"
7. I note also the decisions of the Court of Criminal Appeal in Cahyadi v R [2007] NSWCCA 1 at [27] per Howie J and also Nguyen v R [2007] NSWCCA 14. Although the two offences were committed very close in time each involves different criminality. There should be some degree of partial accumulation but, as the Crown submitted, the extent of that accumulation would not be significant. An aggregate sentence is an appropriate means of dealing with this matter. However, if separate sentences were imposed the issue of partial accumulation would be a further justification for a finding of special circumstances.
8. Dr Nielssen recommends that the rehabilitation of the offender should include participation in sexual offender counselling delivered at a level suitable for the offender. No particular submission was made as to whether the court should make any recommendation for such treatment while the offender is in custody. However taking into account the age of the offender, the nature of the offending and the report of Dr Nielssen I am firmly of the opinion that such treatment should be recommended.
9. Ms Mendes with her usual thoroughness provided the court with the statistics kept by the Judicial Commission. They are marked MFI 1 on sentence and remain with the papers. The sample is one of 19 and accordingly they are of limited utility. Nevertheless I have considered those statistics - but I also warn myself about the use of those statistics conformably with decisions such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 per Garling J at [81].
10. As I am imposing an aggregate sentence it will be necessary to indicate what sentences would be imposed if separate sentences were imposed. The sentences that would have been imposed if separate sentences were imposed are:
11. In respect of sequence 5 (i.e. the count relating to digital penetration) a non-parole period of 5 years 3 months with a balance of term of 3 years making a total of 8 years 3 months indicating a starting point of 11 years.
12. In respect sequence 6 (i.e. the count relating to cunnilingus) a non-parole period of 4 years 8 months with a balance of term of 2 years 10 months making a total of 7 years 6 months indicating a starting point of 10 years.

Orders

1. In respect of the two offences to which you have pleaded guilty you are convicted.
2. You are sentenced to an aggregate sentence of 9 years with a non-parole period of 5 years and 9 months.
3. The non-parole period will commence on 3 November 2017 and will expire on 2 August 2023. Thereafter the balance of term on parole of 3 years and 3 months will date from 3 August 2023 and will expire on 2 November 2026.
4. The non-parole period is approximately 63% of the total sentence indicating a finding of special circumstances the reasons for which have been enunciated within these reasons.
5. You will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.
6. I recommend that while in custody you participate in a sex offenders' programme.
7. I direct that the reports of Dr Nielssen and Dr Blake (the documents at tabs 1 and 4 of Exhibit 1 on sentence) be annexed to the warrant that accompanies the offender back to custody.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2019