The offender is before the Court following pleas of guilty on 18 January 2023 at Wollongong Local Court, to which he adhered to in yesterday's sentencing hearing, for 7 offences of sexual intercourse with a child aged between 14 and 16 years, contrary to s 66C(3) of the Crimes Act 1900 (NSW). The offending occurred in a period of about a month.
The maximum penalty for this offence is 10 years' imprisonment. There is no standard non-parole period.
The offending occurred when the victim (who I have chosen to anonymise) was aged 15. However, contextual background to the offending started when she was 14 years of age.
[2]
The Facts and Circumstances
Although the facts were substantially agreed, there were areas of disagreement. It is not a case, therefore, where a sentencing judge can simply accept at face value what a complainant says in the comfort that a jury has, by its verdict(s) accepted the complainant's credibility and reliability. This circumstance engages the principle from Olbrich that where the Crown invites the Court to take facts into account in a way that is adverse to the offender's interests, it must do so to the standard of beyond reasonable doubt. Conversely, where the offender invites the Court to find disputed facts in his favour, he is required to do so on the balance of probabilities. Finally, logic as well as authority, indicates that there may be certain facts that are not known at all.
The focus of factual disputation revolved around the question whether for some of the offences, involving penile-vaginal intercourse, the sex was unprotected and/or whether the offender ejaculated inside the complainant's vagina. It was common ground that unprotected sex would aggravate the offending (although not in the statutory sense of that word).
I will go through the Agreed Facts and once that is done I will consider and resolve disputed factual questions.
During 2020, the victim regularly engaged in online gaming on the 'Fortnite' platform. Whilst playing Fortnite, players can communicate with one another using microphones and headphones.
In the first week of March 2020, when the victim was then aged 14 years, the victim was playing online with a number of persons. The offender started talking with the victim through the microphone and headphone. At this time the offender was 27 years old. The offender asked the victim if she had the programs/applications 'discord' and 'snapchat' and the victim voluntarily gave him her username for both programs. The offender contacted the victim on those programs immediately.
At the time the victim was going through a difficult period dealing with mental health issues which she confided in the offender about. The offender would talk or message with the victim when she got home from school for hours at a time.
The offender was aware of the victim's age and after a couple of weeks of communicating the offender introduced sexual content to the communications.
In June 2020 the victim was 15 years of age and was staying with her mother in Wollongong.
[3]
Sequence 2 offending
On 6 June 2020 the offender caught the train from Sydney to Wollongong. The victim met the offender at San Churro in Wollongong Mall and he bought her lunch. They went down a beach access path opposite the Entertainment Centre onto City beach. They walked into a secluded cove of sand and ate their lunch. The offender started to kiss the victim. The offender removed the victim's jeans and underwear. The victim froze and did not know what to do. The offender removed his penis from his shorts and laid the victim on her back. The offender laid on top of the victim and inserted his penis inside her vagina. The offender pushed his penis in and out of the victim's vagina a number of times and, according to the complainant, then ejaculated inside her before wiping his penis with some serviettes. She said in her evidence that no contraception was used (by either) and felt his ejaculate. She said that she had noticed his penis before he inserted it in her vagina and observed that it was not circumcised and had no condom on it. After removing his penis, the offender wiped it. The offender put his penis back inside his shorts. The offender pretended like nothing had happened. The offender and victim lay together cuddling for half an hour. The victim's mother picked her up in the car park and the offender saw the victim drive away.
When he gave evidence at the hearing, the offender said that on this date, he did not actually intend to have sex with the victim: he wanted to get to know her and spend time with her. Nevertheless, he agreed that they had unprotected sex. He also said that he knew she was 15 years of age. Prior to the sexual intercourse, they had been cuddling. He recalled that they did not discuss contraception. He recalled that he had removed his penis from the victim's vagina before he ejaculated. He said he ejaculated into his hands and thereafter wiped them with a serviette. He said that he did not want to run the risk of conception.
[4]
Sequence 3 offending
Only two days later, on 8 June 2020, the offender again travelled by train from Sydney to Wollongong to see the victim. The victim agreed to meet the offender again because he had made her feel special and she thought it was love. The victim met the offender at San Churro in Wollongong Mall and they walked to Chicko's Chicken. The offender bought the victim lunch. A document produced on subpoena by Woolworths (Exhibit 2) indicates the purchase of a pack of condoms and a bottle of water; although the victim said that she did not see this purchased. She denied knowing that the offender had bought the pack.
They returned to the same location on the beach where they had been two days before. The offender removed the victim's jeans and put his penis inside her vagina and had sexual intercourse with the victim. According to the victim, the offender again ejaculated inside the victim. She said she felt that ejaculate and saw him wipe his penis after he had taken it out of her vagina. She also said that she noticed that he had not worn a condom prior to the sex.
The offender said that after taking the train from Sydney, he arrived in Wollongong. He referred to them going to Woolworths. He recalled that he and the victim had a discussion about contraception and that the victim had joked with him about the size of the condoms he was intending to get. He said that after leaving the store they went to the same place at City Beach where they had sex two days before. It was still daylight. After kissing and cuddling each other, he asked her if it was ok to have sex. After she consented, he said he took his pack of condoms and wore a condom. He said that he pulled his penis out of her vagina and ejaculated into the condom. He cleaned his penis and put the used condom into a serviette before throwing it away.
The victim told some of her friends at school what had happened with the offender. It is not apparent on the facts however, what she had told them.
[5]
Sequence 4 offending
On 7 July 2020 the offender returned to Wollongong to meet with the victim. In the days prior they had discussed staying the night at the City Beach Hotel in Wollongong. The victim met the offender in Wollongong and he bought her lunch at Chicko's Chicken. They walked across the road to the City Beach Hotel where the offender paid cash for a room. The victim had brought a bag containing clothing and toiletries. Inside the hotel room the victim was on the bed watching the movie 'Clueless.' The offender climbed on top of the victim and started to kiss her. The offender took off the victim's clothes and removed his own clothes. The offender put a condom on his penis and inserted his penis in the victim's vagina. The offender moved his penis in and out until he ejaculated inside the condom whilst inside the victim.
[6]
Sequence 7 offending
Later on the evening on 7 July 2020, the victim got changed for bed. The offender got into bed and started to touch the victim on the vagina. The offender put his fingers inside the victim's vagina. The victim is not sure how long this went on for, but she told the offender to get off, which he did, and she went to sleep.
[7]
Sequence 8 offending
During the night on 7 July 2020, the victim got up out of bed to go to the bathroom. When she returned to bed the offender cuddled her from behind. The offender removed the victim's underwear and put his erect penis inside her vagina. According to the victim, she saw a pack of condoms on the bedside table. She said she saw his penis before this episode of sex occurred and there was no condom on it. She said she felt the warmth of his penis. The victim moved away from the offender and removed his penis from her vagina and went back to sleep. The victim and offender did not say anything to each other.
The offender said that on this day, the bag that he had brought with him contained the pack of condoms he had purchased at Woolworths. On this date, he understood that the victim was on the pill, but he had an understanding that it took time for the pill to be effective after its initial use, so he said he put a condom on his penis. He said that after withdrawing his penis from the victim's vagina, he ejaculated in the condom. He put the used condom into a tissue or serviette before throwing it away.
[8]
Sequence 9 offending
The next morning, on 8 July 2020, when the offender woke up, he started to touch the victim on the vagina and put his fingers inside her vagina. The victim said "stop it I'm too sore". The offender stopped and they got dressed and went to the beach together. Later that day the offender left Wollongong.
[9]
Sequence 5 offending
On 10 July 2020 the offender travelled to Wollongong from Sydney and they met at San Churro in Wollongong Mall. The offender and victim bought food from KFC in the mall and walked back to the place at City Beach they had been previously. At the beach the offender pulled the victim's skirt up and removed her underwear. The offender inserted his erect penis inside the victim's vagina and moved it in and out. The offender said that the offender was not wearing a condom. She felt the 'definition' of his penis and the warmth of it. She also said that she saw his penis before the offender had inserted it into her vagina and observed that it was not circumcised.
The offender said that he had the pack of condoms in his bag, just in case they may have sex. He said that he had withdrawn his penis from her vagina before he ejaculated. He ejaculated into the condom and disposed of that thereafter.
There were other agreed facts, postdating the offending, which were admitted. I limited their use to the issues of what harm was suffered by the victim and what light the latter events (post offence) had in shining a light on the relationship between the victim and the offender in which the period in which the offending occurred. The parties agreed that to the extent that there were further factual differences in Agreed Facts (14-16 (incl)), it was unnecessary for the Court to resolve them in view of those limitations.
Between July 2020 and December 2020 when the victim was 15 years of age the offender and victim did not see each other but continued to communicate through Discord and snapchat. The offender repeatedly asked the victim to send 'nudes' of herself to him which she did. The offender sent the victim photographs of his penis. The offender disputes that he repeatedly asked the victim to send nude photographs and that he sent the victim pictures of his penis.
On 4 December 2020 the offender travelled back to Wollongong from Sydney. The offender and victim returned to City Beach. The offender tried to take the victim's clothes off but she told him to stop because it was too hot. They walked to the shops and the offender returned home. The offender disputes he tried to take the victim's clothes off.
On two occasions in February 2021 the offender travelled back to Wollongong from Sydney. On both occasions the offender and victim were in the beach huts in the park near the Wollongong Entertainment Centre. The offender tried to remove the victim's pants on both occasions but the victim said it was too hot. On the second occasion the offender tried to get the victim to go down to City Beach but she said no. The offender returned home. The offender disputes he tried to remove the victim's pants on both occasions.
On 30 April 2021 the victim turned 16 years old. They had one further sexual encounter in Wollongong on 4 June 2021 when the victim was 16 years of age.
The offender and victim did not see each other again in person but continued to communicate through various applications.
On 30 November 2021 the victim reported this matter to NSW Police.
On 12 April 2022 police attended the offender's premises at 8 Napoleon Road, Greenacre and executed a search warrant. The offender told police he had deleted the "conversations and memories" with the victim. The offender claimed the victim had been nearly seventeen. He admitted he had had a relationship with the victim for a year and a half and that they had had sexual intercourse four or five times. A number of devices were seized from the offender's home.
The offender was conveyed to St George police station where he participated in an electronically recorded interview with police. The offender initially claimed no sexual intercourse had happened until the victim was 16 years of age but then he made various admissions to having engaged in sexual intercourse with the victim.
[10]
Findings on disputed factual issues
I accept beyond reasonable doubt that for sequence 2, the offender ejaculated inside the victim. I am unable to accept beyond reasonable doubt that for sequences 3, 8 & 5 that was so. My reasons for these findings are as follows. Whilst I accept the victim was credible, and certainly confident in her recollections, such a finding does not preclude me from failing to reach the high degree of satisfaction. Both witnesses, on these issues, presented confidently. However, at a sub-conscious level, and hardly surprisingly, the victim's attitude hardened towards the offender well after the alleged offending, from the point, when as a person of statutory age she had at least one consensual sexual encounter to the point of the strongly adverse feelings she articulated against him in her victim impact statement. As I say, it would not be surprising if, at a sub-conscious level, she wished to punish the offender. It would not be surprising that, looking back on events nearly three years ago, she placed the worst construction on the offender's conduct.
As indicated in argument, the strong and uncontroverted evidence in favour of the offender was, firstly, his purchase of the pack of condoms on 8 June 2020 and secondly, the agreed fact that he had used the condoms on the first of the incidents on 7 July 2020. The former fact suggests to me that it would be against the objective probabilities that, in anticipation that there might be sexual activity, he would purchase the pack of condoms but still not use them. The act of acquisition indicates that he turned his mind to the issue of contraception. To my mind, it is unnecessary to determine the separately disputed question as to whether he and the complainant had a discussion about contraception before that purchase. His conduct was consistent with the offender's concession that he had not used a condom on the first occasion on 6 June as he was not anticipating sexual activity on that occasion. I will return to the significance of this in relation to sequence 2 shortly. The agreed fact that he did use a condom on the first incident on 7 July 2020 would, if the Crown's position was to be accepted, require the Court to find that, from 8 June, the offender was selective in his use of condoms, which I regard as implausible. Further, there is added plausibility to his account given the discussion that I find that the offender and complainant had about her taking the pill, and his concern that, in the early stages of her doing so, she remained at risk of unprotected sex.
The exception to this is the first incident, on 6 June. At this point, no pack of condoms had been purchased. According to the offender himself, the sexual activity was spontaneous. According to a larger part of his narrative, he had developed a connection, still blossoming to be sure, with the victim, after earlier sexualised communications on line. His relationship with his ex-partner had ceased well before. Notwithstanding the slight reservation I expressed earlier about the victim's evidence earlier, her evidence in respect to this account, was plausible. Some assistance can be derived from the subsequent purchase of the pack of condoms two days later as a prospective precaution to suggest that he did not wish to run the risk of unprotected sex again.
I am mindful of the Crown's reliance upon the content of Exhibit D, however although that assisted the Crown with its argument about the offender's anticipation, hope or even willingness to engage in future sexual activity with the victim, and his knowledge of the impropriety of this given the age difference, it was not, in terms probative of any intention to engage in unprotected sexual activity which is the issue arising from present determination on the disputed fact.
[11]
Objective seriousness of the offending
As Counsel for the offender pointed out in his submissions, in R v Rush [2019] NSWDC 773, Haesler SC DCJ, with respect very usefully, stated typical features which relate to the objective gravity of the offending:
The nature and circumstances of the sexual acts;
Regard or disregard for the welfare and safety of the victim;
The risk of pregnancy - if the sex was unprotected or not;
The existence or absence of pain or injury;
The ages of both the offender and the victim;
The age differential between offender and victim;
Any exploitation of a position of trust, or taking of advantage, by the offender;
The number of offences;
The period of time over which they occurred;
The presence or absence of physical compulsion;
The nature of the relationship between offender and victim, such as whether they were boyfriend and girlfriend
Judge Haesler SC also referred to two other features which, with respect, were contentious: that the victim consented or the absence of her opposition to the sex occurring. As the Crown noted, for this offence, consent, or the absence of consent, is not an element of the offending and it would be a mistake to treat its presence as in any way mitigating the offending. Sections 77(1) and 91D(3) of the Crimes Act 1900 (NSW) militate against the presence of consent being mitigating.
In R v Nelson [2016] NSWCCA 130 per Basten JA (Rothman J agreeing) observed at [23] that the lack of opposition to the sex occurring is not a mitigating factor. This was a consequence of the principle that persons under age are taken not to appreciate the nature and consequences of the activity.
Particularly pertinent to the circumstances of this particular victim was the following statement by his Honour:
"Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour."
With respect, I consider that I am bound to follow what was said by the Court of Criminal Appeal in Nelson in treating the absence of opposition to the sex by the complainant as not being a mitigating circumstance.
[12]
Crown's submissions on objective gravity
By its written submissions, the Crown points to the obvious degree of exploitation and grooming: the commencement of relations through the gaming app 'Fortnite'. However, at the hearing, Ms Crown shifted away from any suggestion of grooming; and appeared to accede to the offender's submission that the lead up to the offending could generally be characterised as indicative of planning and a level of foresight as to prospective future sexual activity.
The Crown maintained also that the offender came to learn of the victim's mental health issues and therefore her vulnerability. He started introducing sexual content to communications and the taking of communications to a new level through meetings. From there the sexual activities commenced.
He was aware of her age. There was the differential in age between victim and the offender. He was 27 years at all times: the 12 year age differential was significant. The offender admitted that he knew of the victim's age.
In all cases, it was the offender who instigated the sexual intercourse.
Further, although some of the sex occurred on a beach, this was done in a secluded area. The other sexual activities occurred in a hotel room that he had hired. This accorded the offender a degree of concealment of his criminality.
The Crown sought to pre-empt any submission that the offender might make and did eventually make to the effect that he and the victim were in a 'boyfriend/girlfriend' relationship. I agree. After the initial connections, forged through gaming activity, through the period of the offending, there was little to no evidence of the offender and victim sharing what might be regarded as more innocent or wholesome pastimes which were not associated with sexual activity, such as participation in cultural or sporting pursuits. Even after the period of offending, the evidence of their relations was such that they were highly, if not predominately, sexualised in nature.
As to the differences:
for all but two of the offences (sequences 7 & 9), the form of the sexual activity was penile-vaginal intercourse. For sequences 7 & 9, it was digital penetration.
For sequences 7 & 9, the offender stopped when the victim requested that they stop the sexual intercourse.
Out of the offences for penile-vaginal intercourse, only one of them (sequence 2) involved unprotected sex.
[13]
The offender's submissions
The offender submitted that:
The age differential was 12 or 13 years;
Although initial contact occurred between offender and victim over the internet, a charge of grooming had been discontinued;
There were multiple offences over a period of time;
The victim and the offender voluntarily attended the Wollongong area, including not insignificant travel by the offender;
There was no evidence to support disregard by the offender for the victim's safety;
At a point when the victim reached the age of consent, there was a continuation of sexual activity between victim and offender;
There was no exploitation of a position of trust
The offender took particular issue against the notion of grooming, although he did accept that a degree of planning was involved in his offending; especially in arrangements for meeting with the victim. His Counsel noted that the 'Fortnite' app was not used by the offender to seek out a young person for the purposes of sexual activity even if it had been used as a medium for communication. It was not an underage platform, but an online gaming app with a 'M' classification and did not amount, to a significant degree of planning and/or evidence of 'grooming'-type behaviour. As I have indicated, in the sentencing hearing, the Crown disclaimed any reliance upon grooming.
[14]
Consideration
There are, as indicated, multiple similarities in the offending which make it difficult to distinguish the objective seriousness of each offence.
The age differential was significant, exceeding 10 years. Despite learning difficulties and other issues affecting his mental health, the offender, who had had an intimate relationship with a prior partner going back a number of years, was not so obtuse as to be ignorant of that age differential. He knew of the victim's vulnerability on account of her age and her mental health. In an objective way, it is fair to say that he did take advantage of her. There was also an element of planning involved in relation to sequences 3, 4, 7 and 5. I am inclined to think that the offending for sequences 2, 8 and 9 was more spontaneous.
Whilst acknowledging that the forms of sexual intercourse are not determinative, in my view, those sequences where penile-vaginal intercourse occurred were more serious in nature than the two instances of digital penetration. Aside from the form of the intercourse, these were two instances where the offender readily ceased after the victim had asked him to stop.
Out of the offences where penile-vaginal intercourse occurred, given the risk of pregnancy arising from unprotected sex, I find that sequence 2 was for that reason more serious in nature than sequences 3, 8 and 5.
For all of the offences, reflecting the offender's Counsel's concession, this is not a case where a mental abnormality was causally connected to the offending in a way that engaged De La Rosa principles, to the extent that mental abnormality reduced his moral culpability and lessened the seriousness of his offending.
I accept that the offender knew of the victim's age, and mental issues and took steps to ensure that the sexual activities that occurred were concealed.
I accept, on the other hand, that no threats were made and there was no evidence of disregard for the victim's safety and welfare.
All of the offences were serious, with only the marginal shades of difference I have identified.
[15]
Aggravating factors?
The Crown did not cite any of these. In oral argument, Ms Crown eschewed suggestions that the offender breached any trust or that the victim was 'vulnerable' in the sense indicated by the statutory aggravating factors.
[16]
Victim impact statement
The offender submitted that s 25AA of the CSP Act mandates that the Court is to take into account the trauma of sexual abuse on children understood at the time of offending, which I do. I would have made this finding even without the statutory provision since, Adamson J (as her Honour then was, with whom R A Hulme J agreed) observed in Culbert v R [2021] NSWCCA 38 at [115]:
"It has become a matter of common experience in this Court that the adverse psychological effects of sexual abuse on children tend to be long-lasting. …….. The typical effects, as appear in judgments of this Court, include difficulties with intimate relationships, self-loathing, guilt, self-harm and a tendency to self-medicate."
A victim impact statement was prepared by the victim, which I have read (it was not read out in Court). I noted at the time of tender that to the extent that there was commentary suggestive of grooming, that this was to be treated only as a matter of her perception and not for the truth of the characterisation of the conduct. She spoke of her overwhelming sense of shame and pain. She indicated her difficulties in trusting others and is gravely concerned about whether she can feel secure in intimate moments. She has found it difficult to disclose what happened to her to a majority of her family. Given that her mother knows, the Court infers that it must be very difficult for the family to deal with the victim without all of them knowing about the conduct.
Eloquent though these statements are and without diminishing their force, for the aggravating factor in s 21A(2)(g) to be engaged, the harm to the victim has to be extraordinary or beyond that which would ordinarily result from such serious offending (GL v R [2022] NSWCCA 202 at [64]).I am not satisfied that it is.
[17]
Age and background
The offender was 27 years old at the time of the relevant offending.
At the sentencing hearing, he relied upon the evidence of mental health professionals: a psychologist, Bob Tsapilis; a clinical psychologist, Sam Borenstein; and also his general practitioner, Dr Voutos.
Mr Tsapilis indicated that his opinions were partly influenced by Mr Borenstein's opinion (and also Dr Voutos' report) so it is appropriate to consider the Mr Borenstein's opinion first.
Mr Borenstein indicated that he consulted the offender for 5 occasions before preparing his report to obtain a history. It was not suggested the offender did not tell the truth to Mr Borenstein when he gave evidence or that Mr Borenstein believed that the offender was open and honest with him.
Mr Borenstein summarised the offender's background. The offender believed that he had a good childhood with loving parents. But he struggled with learning difficulties (dyslexia) throughout his primary and secondary schooling and was bullied, partly because of his Greek heritage but also partly because of his disabilities. At the age of 11, his father suffered a stroke and thereafter became unemployable. This devastated the offender. He first consulted a counsellor when he was 15.
After school, he attended TAFE and completed an Advanced Diploma in Telecommunications, before commencing a new TAFE course in Gaming Design in 2013. It was during this latter training that he met his now ex-girlfriend, which relationship ended in 2019. He then undertook further studies, including enrolment in a Diploma of Counselling; in the course of which he developed a heightened appreciation of mental health issues.
Despite this varied level of training, his employment history has been chequered.
In 2019, his maternal grandmother died in Greece. He travelled, with his mother to Greece and upon his return to Sydney, his depression worsened.
The onset of COVID did not help as it deprived him of the chance to have regular sessions with Mr Tsapilis.
Relying upon the history that the offender provided Mr Borenstein, and the latter's administration of a 'Personality Assessment Screener' and the Depression Anxiety Stress Scale, Mr Borenstein opined that:
The offender believed that he had formed a strong emotional connection with the victim and believed that he was helping her through her mental health issues. This last aspect was evidenced by her frequently calling him randomly in a state of panic;
At the time of the offending, the offender was struggling with severe symptoms of depressed mood and anxiety. His history of depression impacted upon his judgment and poor decision making and contributed to his offending.
The offender was functioning from a 'regressed psychological position'.
In his separate report, Mr Tsapilis wrote that the offender had experienced severe depression and anxiety for most of his life, which was attributable to this Irlen Syndrome, sleep apnoea and experience of being bullied through his schooling years, the death of his grandmother and the impact of his father's health issues.
Dr Voutos observed that the offender had never been prescribed neuro-psychiatric medications.
Dr Voutos' letter confirmed that when he was 14, in 2007, the offender received a diagnosis of 'Irlen Syndrome/Scotopic Sensitivity Syndrome': a form of visual dyslexia; and then in 2019, he was diagnosed with sleep apnoea.
[18]
Consideration of the offender's moral culpability
By his Counsel's written submissions, the offender invoked De La Rosa principles in arguing that his moral culpability was reduced; with the consequence of reduced force to be given to considerations of a need for denunciation and retribution and moderation of general and specific deterrence.
But as noted, the offender's Counsel did not maintain that submission at hearing, arguing only that his mental impairments went into "the matrix" of all considerations to take into account.
[19]
Antecedents and prior good character
The offender has no prior criminal history.
That being so, subject to a potential qualification, he is entitled to the leniency customarily given to a first time offender.
He also relied upon a character reference prepared, apparently by his brother, Konstantinos, who referred to his personal qualities. Again subject to a potential qualification, although this also may assist him, the intrinsic weight is not significant given that the evidence is not directed to good works or the offender's standing in the community and can hardly be said to come from a disinterested source.
The qualification I wish to address is that the offender is to be sentenced for 'child sex offences'. By s 21A(5) of the CSP Act, special rules apply to deal with what is ordinarily mitigating factors in this regard. That is, the good character or lack of previous convictions are not to be taken into account as a mitigating factor if the sentencing judge is satisfied that (those) factor(s) assisted the offender in his commission of the offending.
In its written submissions, the Crown did not refer to s 21A(5). As indicated recently, to engage this provision, the Crown would need to show how some assistance to the offender was derived from either or both factors (Bhatia v R [2023] NSWCCA 12 per Beech-Jones CJ at CL, at [14]-[15]). The Crown did not do so.
It is therefore open for me, and I so find, that the absence of prior antecedents is a mitigating factor for him. That is because, generally speaking, the offending may be treated as exceptional. So too, although to a lesser degree of weight given the paucity of the evidence relied upon, is his prior good character.
But another problem for the offender is that the salience to be given to these matters is further reduced where, as here, there are repeated instances of offending (Langbein v R [2018] NSWCCA 38 at [112]). This circumstance, along with the inherently serious nature of the offending explain why, on balance, both of these mitigating factors have limited weight in the synthesising of the various considerations.
[20]
Guilty pleas
The offender would ordinarily be entitled to a 25% discount on sentences by reason of his guilty plea. However, in its written submissions, the Crown submitted that he should receive a lesser discount by reason of contesting some of the facts. This, the Crown argued, diminished the part of the discount given to the guilty pleas that reflects the diminution in the facilitating of the administration of justice.
Depending on the outcome of the disputed factual issues, the Crown indicated its intention to rely upon s 25F(4) of the CSP Act; where the sentencing judge has discretion (relevantly) to reduce the discount for guilty pleas because the utilitarian value has been eroded by a dispute as to facts that were not determined in the offender's favour.
In view of the findings on disputed facts made earlier, out of the four separate incidents, only in one of those did I find that there was unprotected penile-vaginal intercourse. In the events that have occurred, the offender was plainly entitled to contest the disputed facts. In my discretion, I do not propose to treat as separable the discount for sequence 2 from the discount for sequences 3, 8 & 5.
The offender is entitled to a 25% discount on all of his pleas.
[21]
Remorse or contrition
Guilty pleas may, in some circumstances, manifest a degree of contrition.
Mr Borenstein noted that the offender had conceded to him that engaging the victim sexually was wrong and stated in his report, on multiple times, that the offender had 'expressed guilt and remorse'. He also opined that the offender had expressed full responsibility for his offending and a concern for the victim. Mr Tsapilis also noted his remorse and contrition. The offender's brother, Konstantinos, also spoke of his expression of remorse, and more beneficially for the offender, also noted that he was conscious of the harm he had done to others.
But these were generalised statements made out of court without meaningful explanation or elaboration.
At this sentencing hearing, although he gave evidence, the offender was not asked about his feelings towards the victim. Although he clearly regretted his conduct, that is, in my view, more to do with the consequences from his offending to his current predicament and his anxious concerns about his future, than it is about an acceptance of responsibility for his conduct. I think he is preoccupied with his own concerns which, in fairness to him, might be a function of his depression and anxiety.
I find on balance however, that he is remorseful and contrite, albeit to a limited degree.
[22]
Rehabilitation prospects
The offender relied at the hearing upon a letter from Mr George Barsoum, a manager of Arncliffe Food Barn. The offender had been employed for about 7 months to February 2023. Mr Barsoum spoke favourably of the offender as an employee; so much so as to offer him employment if he became available in the future.
Mr Tsapilis believed that the offender's prognosis was very good if he continued receiving appropriate treatment. This was based upon the offender's demonstration of genuine remorse, the development of insight into his issues and those vulnerability factors impacting on his actions.
Although he gave evidence in support by written testimonial, the offender's brother Konstantinos conspicuously omitted to say that steps he might take in the future to aid in the offender's rehabilitation. The Court was informed, however, that his father and brother were in Court to support him during the sentencing hearing, so there is a basis for finding that he will have family support upon release.
The Crown did not argue against the offender being motivated by his experience in custody to rehabilitate himself.
The offender's Counsel emphasised that the offender had sought and engaged in psychological treatment. I have noted his contrition and remorse to the degree already noted.
I find he has good prospects of rehabilitation.
[23]
Likelihood of reoffending
There was no suggestion of any sexual deviancy in the offender.
Mr Borenstein believed that the ongoing and effective treatment of the offender's chronic and severe depressive illness, with features of anxiety, would significantly reduce the likelihood of his reoffending.
The offender was asked by his Counsel about what he would do to minimise the risk of reoffending. The offender said that he intended to continue his mental health therapy, avail himself of the employment opportunity (with Mr Barsoum) whilst undertaking further study, potentially in psychology. He referred to the steps he had taken when he had been on bail to sleep regularly and work hard. Prior to his bail being revoked, he said he had complied with conditions. He also declared his intention not to play games online and expressed his desire to avoid going back into custody.
The offender's Counsel submitted that the offender had engaged in psychological treatment and had evinced an intention never to risk offending again. I accept that submission.
There have been no disciplinary infractions whilst he has been in custody.
I consider that the prospects of re-offending are remote.
[24]
Hardship
The offender gave a great deal of evidence about his mistreatment and fears for his safety whilst on remand; and general experiences at Parklea, Goulburn and lately Silverwater. He said he was beaten by a prison officer, and because of his fears for his safety he fabricated a narrative as to why he was incarcerated and for periods was kept outside his wing.
He gave evidence of "lock-ins", due to COVID restrictions; even this year; when he estimated that 70% of the time there have been lock-ins of one kind or another.
Mr Borenstein opined that incarceration was likely to set back the offender's mental health and could potentially cause a severe 'Major Depressive Episode'. He would likely need to increase the dosage of his antidepressant.
I accept that given his depression and anxiety and sometimes problematic access to his medical treatment, the offender will likely find custody more onerous that the general population of inmates and this is a factor in mitigation.
I also accept his evidence of his mistreatment in custody, which evidence was not seriously challenged and that, to a degree, this diminishes the salience to be given to specific deterrence.
[25]
INSTINCTIVE SYNTHESIS
I must first take into account the maximum penalty for the offence. Plainly, the maximum penalty is indicative of the extremely serious nature of the offending.
I also take into account some of the many observations regarding the heinous nature of under-age sexual activity, including, without limitation, what was said in R v Gavel [2014] NSWCCA 56 at [110]. I accept that the considerations of general and specific deterrence, retribution and denunciation are all engaged. Nevertheless the force of the considerations of retribution and denunciation are moderated to a small degree by the offender's mental issues. But this is counter-balanced by his taking advantage of the victim, given his appreciation of her own difficulties and the confidence she had reposed in him; someone who was much older than her. I acknowledge also that his time in custody has been salutary for him and has spurred him to rehabilitate himself as best as he can. Nevertheless, it remains important to hold the offender accountable for his offending and in a way that reflects the harm done to the victim; even though no statutory aggravating factor was engaged in that regard. The offender's rehabilitation prospects are a subsidiary consideration; although very relevant to the question of special circumstances I will later consider.
I am satisfied that the s 5 threshold is crossed. There was no dispute about that in this sentencing hearing.
[26]
Totality
Because there are multiple offences of a similar kind, I propose to impose an aggregate sentence. I must take into account the principle of totality. The Crown acknowledges that this principle has a central role to play in this sentencing exercise. The Crown identified that there were, in substance, four separate occasions when the offender and victim engaged in sexual acts. Sequences 4, 7, 8 & 9 all occurred in the hotel within 24 hours; although, as the Crown submits, they were discrete and could not be said to amount to an escalation of different forms of sexual activity within a single sexual encounter.
The Crown emphasised, correctly, that the Court must be mindful to allay the community's concern that because certain separate criminal acts involving the offender and victim occur at or about the time of earlier offences does not mean that an excessive level of concurrency is warranted; but rather was an indicator of the need for partial accumulation. I am conscious of trying to reach a sentence which comprehends his criminality overall.
The indicative sentences (taking into account the discounts for the guilty pleas in each case) are as follows (taking the sequences in chronological order):
Seq 2: 2 years and 3 months' imprisonment
Seq 3: 1 year & 10 months' imprisonment
Seq 4: 1 year & 11 months' imprisonment
Seq 7: 1 year & 1 months' imprisonment
Seq 8: 1 year & 10 months' imprisonment
Seq 9: 1 year's imprisonment
Seq 5: 1 year' & 11 months' imprisonment
The sentence is to be backdated to commence in a way that takes into account the period that he has been in custody, which works out as being 18 January 2023. But I accede to the offender's submissions that the time spent in custody whilst his bail was originally refused should also be credited to him.
The sentence I am about to impose concerns an offence that is a prescribed sexual offence, for the purposes of s 67 of the CSP Act. Even in the absence of such proscription for the option, as will momentarily be observed, the sentence is not of a length that would qualify the offender for serving his sentence by an order for intensive correction in any event.
[27]
Special circumstances
I find special circumstances given that the offender is a first time offender who I find has and will likely continue to experience special hardship in incarceration and the variation of the standard period will aid his already good prospects for rehabilitation.
[28]
Sentence
Mr Nussis, please stand.
You are convicted of the seven offences of sexual intercourse with a child aged between 14 and 16 years.
You are sentenced to a term of 5 years and 6 months imprisonment commencing on 17 January 2023 and expiring on 16 July 2028. The non-parole period is 3 years expiring on 16 January 2026 after which you are eligible for parole.
[29]
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Decision last updated: 01 June 2023