R (Commonwealth) v Robinson

Antecedents

1. The offender had previously been convicted of the offence of using (as an adult, then aged 21) a carriage service to send indecent material to a person who the offender believed was under the age of 16 (believing the person was 12 years old) at Magenta in August 2014, contrary to s 474.27A(1) of the Criminal Code. The offending involved his sending a photo of his erect penis (with pants pulled down) to a covert online investigator who assumed the online identity of a 12 year old girl from Perth. On 14 July 2017, the offender was convicted of the offence but conditionally released on a good behaviour bond (pursuant to s 20(1)(a) of the Crimes Act) for a period of 2 years and 6 months, whilst subject to community corrections supervision for as long as was considered necessary.
2. The statement of facts in that sentencing were placed before the Court. Materially, he sent a photo to the covert online investigator of his erect penis, with his pants pulled down, and holding his penis in his hand. A pre-sentence report had identified the offender as being at a "medium-high" risk of reoffending on the LSI-R scale. A case note report prepared by Corrective Services recorded the following: "Mr Robinson … described the behaviour as a "stupid decision" borne of loneliness. He expressed regret for his actions. He explained that he struggles to meet people and is anxious about how to relate to females his age. Following the breakdown of an (on-line) relationship. He denied any sexual interest in children per se."
3. It is fair to interpolate the uncanny resemblance between this explanation and the explanations - such as they appear - for the index offending.
4. The psychologist for Corrective Services observed, back in June 2017 that: "it may be that he feels more confident in dialogue with a young person given his cognitive limitations and there may be a level of emotional identification with children. Intimacy deficits, sex as coping, social isolation, rejection and loneliness appear to be other related factors."
5. There was also a serious, although unrelated (in nature) driving offence committed in October 2019, which reflected the binge drinking he was said to have been engaged at about that time.
6. Although his criminal history is not extensive, the similarity between the earlier offence and the index offence disentitles the offender to the leniency that would be extended to an offender committing the index offending, or some offence similar in nature, for the first time.
7. The Crown referred to this history when addressing the sentencing principle of specific deterrence.
8. I will return, indirectly, to a different aspect of antecedents as a sentencing factor later in these remarks when considering the offender's submission about his having been subject to bail conditions amounting to 'quasi-custody'.

The evidence

1. The offender had been diagnosed with ADHD in 2010, when he would have been about 17. He told Dr Nielssen that he had never taken medication for that condition. The offender had been diagnosed with depression by his general practitioner in 2020.
2. Dr Nielssen diagnosed the offender as being affected by a mild intellectual disability at the time of the offending, as his condition had been lifelong and was permanent. Dr Nielssen not only took into account the offender's history, but information from his school reports and professional assessments, information from Ms Davey and other aspects of the offender's presentation to him. His intellect was lower than that of most fourteen-year-olds, certainly in his ability in maths and language function, and also in the area of most social skills. However, it was difficult to place an age level for his cognitive function, as his disability is most evident in conceptual thinking, interpreting social cues and problem solving, rather than in acquired knowledge such as numeracy and literacy. Dr Nielssen considered a diagnosis of a depressive illness, but did not ultimately adopt it.
3. Dr Nielssen gave evidence at the sentencing hearing and was cross-examined. In his evidence in chief, he opined that there was a nexus between the offender's disability and the offending. He characterised it in a more refined way than a mild intellectual disability. He referred to the offender's condition as being a 'social' disability, itself a product of an intellectual disability, in which the offender was weak in comprehending abstract concepts, and had a limited awareness of social rules. He was naïve and had trouble grasping what was 'dangerous' to him.
4. Dr Nielssen was cross-examined. Having seen and heard him give evidence, I found him to be a good witness. He did not, for example, try to act as an advocate but rather answered the questions as best as he could deploying his professional skill. He indicated where he could not honestly answer questions. Some of the evidence he gave was not favourable to the offender. This included his acceptance of propositions put by him to the Crown that:

• statements that the offender had expressed to him amounted to an attempt to minimise his offending;
• a cause of the offending was his sexual attraction to underage females;
• the offender was conscious, when seeing Dr Nielssen, that as a result of the 2014 offending, he was placed on Child Protection Register and subject to obligations of compliance;
• with reference to the agreed facts shown to him, the offender had turned his mind to the age (14) of the person whom he thought he was communicating with; had tried to reassure that person;
• with reference to agreed facts relating to the 2014 offending, the offender had engaged in at least one instance of deception with the police operative, in terms of misstating his own age;
• the offender knew that what he was doing was unlawful. Further, although he may not have been as wary as someone without his intellectual disability, in dealing with the person (the AOI), he understood the social norm (leaving aside the illegality) against sexual communications of this kind.

1. In re-examination, Dr Nielssen clarified that the offender's intellectual disability fed into the offender's social disability in various realms: his friendships and interaction with others; his employment. He had the capacity to manipulate others, but it was of a lesser kind. He was unable to quantify the extent to which the offender recognised that something was wrongful.
2. The diagnosis of intellectual disability in the offender was also the subject of evidence from Professor Susan Hayes, who is a psychologist with expertise in intellectual disability. Professor Hayes had prepared reports about the offender in 2016 and 2017.
3. In her 2016 report, she determined that the offender functioned in the range of mild intellectual disability for adaptive behaviour, at a level lower than 99% of his age peers. She explained that by mild intellectual disability, this was a comparison between the levels of intellectual disability: it did not mean that the individual was only mildly affected in relation to the general population. She determined that in the domain of 'interpersonal relationships' he functioned at the age equivalent of 11 years and 3 months; and generally functioned at a level similar to a non-disabled 12 year old in certain subdomains.
4. Communication skills were the lowest area of his functioning, in the range of moderate intellectual disability, mainly owing to a very short attention span, difficulty in remembering and recalling information and severe receptive and expressive language disorder. The intellectual disability arose during his development period, prior to becoming an adult.
5. A useful guide to his skills relative to functional age equivalents was contained within one of Professor Hayes' reports, as follows:
6. Professor Hayes considered that he also suffered from mild depression.
7. In her 2017 report, in which she was asked to address earlier offending of a similar nature (from August 2014), she stated the following: "there is a nexus between Mr Robinson's intellectual disability and the commission of the offence because of his functional age equivalent levels, and his limited ability to foresee the consequences of his actions, to behave appropriately in interpersonal relationships and to understand the nuances of communications with other people. Mr Robinson tends to act impulsively in order to meet his needs, and does not perceive the wider ramifications or risks of his actions. People with an intellectual disability are not more sexually oriented, aroused or 'deviant' than non-disabled people; the link between sex offending and intellectual disability, when and if it occurs, does so because whilst an adult with an intellectual disability may have the same level of sexual interest and arousal as a non-disabled peer, they may be relatively ignorant of the relevant laws, rules, social norms and acceptable socio-sexual behaviours and therefore be unable to modify their behaviour accordingly."
8. With the receipt of Professor Hayes' reports, Dr Nielssen stated in his supplementary report that the offender was highly vulnerable to an approach by an undercover police officer, as he lacked the capacity for abstract thinking required to consider the likely nature of the communications he was receiving.

Submissions

1. The offender submitted that the evidence disclosed that the offender had an intellectual disability, which had been long-standing and which was well-documented. Based on Professor Hayes' finding of a causal connection between his intellectual disability and his offending in 2014, the Court would also find such a connection with the index offending. He relied upon Dr Nielssen's evidence given in Court.
2. However, on questioning from the Court, Senior Counsel for the offender accepted that it would be found that the offender knew that what he was doing was wrong. The problem was how wrong? In response to that submission, Senior Counsel was asked whether, if that question was to be raised in a subjective sense, whether an associated sentencing consideration of protection of the community would not apply. Senior Counsel accepted that it should.
3. The Crown submitted that considerable caution should be exercised, in the absence of evidence from an offender (susceptible to testing), in the opinions of mental health professionals substantially based on out of court and self-serving statements (Imbornone v R [2017] NSWCCA 144). Further, with reference to De La Rosa principles, that case makes it apparent that the mental abnormality needs to be shown to have contributed to the offending.
4. The Crown submitted that the evidence disclosed that the offender understood the wrongfulness of his conduct; not just in a legal sense, but also in the sense of violation of an entrenched social norm. To make good that submission, the Crown emphasised the feature of deception from the 2014 offending (the misstatement of his age), his expression of remorse in 2017 when reflecting upon the 2014 offending; the reassurance in the index offending ("I won't hurt you"); his consciousness of being on a Child Protection Register and his attempt to minimise the index offending by denying that which was clear: his sexual interest in female teenagers.

Consideration of existence of mental abnormality

1. Notwithstanding the Crown's reliance on Imbornone, this Court also has to take into account more recent observations of McCallum JA (as her Honour then was) in the Court of Criminal Appeal in Lloyd v R [2022] NSWCCA 18 at [46]-[47] about the weight given to unchallenged evidence of mental health professionals substantially based upon out of court assertions of offenders. At any rate, I note that Dr Nielssen was available to and subject to cross-examination and much of the content of statements made by the offender to him were in fact relied upon by the Crown to draw conclusions the Crown regarded as favourable to its case.
2. Contrary to the Crown's invitation to exercise caution, it is plain that the mental health professionals who assessed the offender in this case did more than simply upon rely upon out of court assertions of the offender, and even if they did, the wealth of the material before the Court in this sentencing hearing, substantially corroborates their opinion that at the time of the offending the offender had a mild intellectual disability and, most likely, also depression.
3. There is no doubt that an offender's mental abnormality may support a more lenient sentence in any or all of the following ways: by reducing the seriousness of the offending; reducing the weight to general and personal deterrence; rendering greater hardship through the infliction of punishment and elevating the importance of aiding rehabilitation. In these matters, much depends upon the degree of the abnormality and the extent to which it contributes to the offence. Common questions arise whether, by reason of the abnormality, the offender was in control of his cognitive faculties or emotional restraints, had the capacity to make reasoned or ordered judgments and was aware of the likely consequences of his conduct. Conversely, the condition may indicate a more serious sentence for the sake of community protection (De La Rosa).
4. A recent restatement of De La Rosa principles was provided by the Court of Criminal Appeal in DS v R; DM v R [2022] NSWCCA 156 at [95]-[96] as follows: "[95] In relation to moral culpability, it has long been accepted that "[w]here 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" (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]) with potential consequential effects upon the weight to be afforded to the various sentencing factors, including denunciation and general deterrence. This form of connection between the offence and its commission might be described as "a" causal connection, but it need not be the direct or precipitating cause (see Moiler v R [2021] NSWCCA 73 at [59] per Button J with whom Basten JA and Davies J agreed) (emphasis added). [96] It follows that an offender's mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness. However, while a mental impairment "may" affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is "a" causal connection between the impairment and the offence. The critical factors are the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter. The most obvious such circumstance is where the mental impairment is effectively a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act. Another example may be where an offender damaged property during a period of psychosis or while suffering delusions but in circumstance that fall short of that which might establish a mental illness defence. In such a case, it could be said that the objective seriousness of the offending was reduced perhaps substantially. Such an offence would not be premediated or planned, and the offender would not have sought or derived any advantage from their offending or possessed any malice in doing do. On the other hand, where an offender suffered from depression that impaired their decision making, it is very difficult to accept that the objective seriousness of a sexual assault they committed is somehow reduced even though it might be said that their depression materially contributed to their inability to overcome their own impulse to commit the offence. Such circumstances might warrant a reduction in their moral culpability which would in turn warrant further consideration be given to the weight attached to various sentencing factors, although it would not necessarily result in a reduction in their sentence."
5. There is no issue about the existence of the principles. It is whether, and to what extent (ie what weight should be afforded to them) they are engaged.
6. These general principles have played out in at least two cases concerning similar offending (accessing child pornography). The first was a decision of the Western Australian Court of Appeal in Cluett v The Queen [2019] WASCA 111 ("Cluett"). The second was a decision of the Supreme Court of the Australian Capital Territory in R v Mertell [2022] ACTSC 37. In both cases, the offender was on the autism spectrum (and, in the latter exhibited symptoms of ADHD). In Cluett, it was determined, at first instance and on the sentencing appeal, that the mental abnormality contributed to his offending and that he had evinced an absence of rationality. A finding was made that he was asexual. These findings engaged De La Rosa principles, in the sense or reducing his moral culpability and therefore the force customarily given to general deterrence.
7. But in Mertell, the sentencing judge rejected any suggestion that the offender's autism (and ADHD) meant that he did not understand the illegality or immorality of his offending and found that the offending was motivated by a desire for sexual gratification.
8. I accept, firstly, that at the date of the offending, the offender did have a mild intellectual disability or as Dr Nielssen expressed it (which probably amounts to the same thing in effect) social disability. I also accept that he was depressed. The real question, or battleground issue, at the sentencing hearing, was the existence and extent of any causal connection between those mental conditions and the offending.

Causal connection?

1. For De La Rosa principles to be engaged, it is unnecessary that a mental abnormality represent the only cause of offending. It is sufficient that it materially contributes to the offending.
2. I can accept that because of his disability, the offender may have been led along by what was, in reality, an undercover police operative. He was, by reason of his mental disability, less than wary relative to someone without his intellectual disability. I also find that his disability contributed to the circumstance that he was inhibited in appreciating the likely consequences of his actions. This offence was distinct from the 2014 offence to the extent that in the latter, it was the offender instituting the contact. That said, I have a difficulty, however, with Dr Nielssen's opinion which implied that what the AOI had done would have been unlikely to 'dupe' anyone of normal intelligence with a normal capacity to reflect on the possible reasons for receiving an unsolicited friend request from a teenage girl. That opinion is a disservice to the skills of the AOI. The cases are replete with persons, of varying degrees of intelligence, engaging in the conduct that this offender engaged in through the involvement of undercover police operatives. Nevertheless, on balance, the offender may, because of his intellectual disability, be said to be somewhat off-balanced because of his intellectual disability. To this extent, at least, and also his being impeded in appreciating the likely consequences of his actions, his intellectual disability, or social disability, relative to other offenders, had a role, albeit a small role, to contributing to what occurred. It was small partly because, as the Crown indicated, the offending worsened, or escalated, throughout the communications.
3. Nor do I place much weight on Dr Nielssen's view that underdevelopment in maths and language function or most social skills assists the offender; save for the aspect of social awkwardness and immaturity in dealing with 14 year old girls. The problem for the offender, however, is that most socially immature teenagers know that there is something wrong with soliciting sexualised content with underage girls and, as his statements to the community corrections officer preceding sentencing for the earlier offending indicated, this offender was no exception to that. Given his disability, more manifested in an arrested social development, I consider it probable that he felt a natural affinity generally communicating with what he thought was a 14 year old girl.
4. But I do not regard that particular matter as being very substantial in mitigating the offending. In particular, I am unable to accept that the offender did not know of illegality, immorality of the offending, or that it violated a social norm of which he was ignorant. He had committed a like offence 6 years before and had thereafter reputedly expressed remorse for it, stating that he would "do anything to take it back". He had recently borne the stigma of being placed on the Child Protection Register.
5. I find, further, that he sent the photo of his penis to the AOI and some of the messaging was engaged in for sexual gratification. His position was to the contrary of the offender in Cluett. The position at the date of the offending was not dissimilar to what it was in August 2014: the offender was lonely and bored; although in May 2020, matters were worsened because of the additional isolation imposed on citizens because of the Pandemic.
6. I am unable to accept that this mild intellectual disability, viewed in isolation at least, substantially reduced his culpability so as to displace general, or specific deterrence.
7. As to the suggestion that the offender was depressed, I regard the position as broadly similar to the offender in Asplund, where it was said (at [36]) that such condition did not explain the fact that he tried to form a friendship over the internet with a child (a real victim), involving 'her' in explicit communications and expressing a desire to meet her for sexual activity. I am unable to accept that there was a nexus between depression and the offending.
8. Notwithstanding what I have remarked about the minimal causal connection between the offender's intellectual disability and the offending, general principle suggests that general deterrence may be moderated, as a matter of weight, even if, as I have found, he knew that what he was doing was wrong (Hartman v R [2011] NSWCA 261 at [84]-[92]). His conditions do moderate general deterrence, and specific deterrence to a small degree. Similarly, I accept that the existence of depression at the time of offending, even without any or much of a causal connection, can also moderate general deterrence (R v Burton [2010] NSWCCA 54 at [39]).
9. I would also add, and the offender's Senior Counsel conceded, that the effects of mental health do not point in a singular direction. As McClellan CJ at CL observed in De La Rosa (at [177], fifth dot point]) mental abnormality can point in the direction favouring a sentence reflecting the significance of protection of the community. It is troubling that his Senior Counsel, whilst conceding that his client knew that he had done wrong, raised the question, which Dr Nielssen could not answer and which is probably unanswerable, as to how wrong the offender knew it to be wrong. I consider that, with the benefit of hindsight, the counselling treatment received from Ms Lattas has been insufficient to address his criminogenic factors. This was despite the red flag indicated by the Wyong Community Corrections Officer in July 2017, who regarded the offender as being at a 'medium to high' risk of re-offending. Also, the inability to appreciate the consequence of his actions also elevates the significance of community protection to the sentencing exercise.

The significance of the guilty plea (s 16A(2)(g))

1. This was a point of material dispute between the parties. The Crown referred the Court to what might be regarded as express generic matters affecting this factor: the extent to which the plea resulted in any benefit to the community; the extent to which it evinced other matters which would favour the offender - such as contrition, or willingness to facilitate the administration of justice - and utilitarian benefits. The Crown pointed, in this case, to a late plea, entered on the date the trial was due to commence; so that it warranted only a small discount.
2. The offender's Counsel invites the Court to look behind the bare circumstance of a late plea to factors contributing to that result. These were that well before the scheduled trial date, the Crown was put on notice of the legality of what the investigators had done, through their 'targeting' of the offender. That is, the offender's guilt would rise or fall depending upon the answer to that question. The offender's Counsel submitted that it was this circumstance which induced the Court to refrain from ordering a jury panel for the trial. Then, on 19 September 2022, the day before the scheduled hearing date in which the pre-trial issue was to be argued, the Crown served supplementary evidence relating to that contentious issue of the legality of what investigators had done. Once the offender received that evidence, instructions were sought for him to enter the guilty plea.
3. It is important not to conflate two matters effectively raised by the offender, albeit that they are related: his guilty plea and his commendable forensic position to narrow the issues for the Court's determination in a way that spared the Court and the community a more drawn out trial or hearing than would otherwise have been the case. The former factor is recognised in s 16A(2)(g). Although the latter is not expressly referred to in s 16A(2), in my view, it falls into the category of other sentencing factors in the general law that a sentencing court for a federal offence may take into account. I consider that some credit should be given to the offender for signalling the narrowness of the issue, which assisted the Court, amongst other things, to avoid taking steps for preparing the empanelment of a jury. Nevertheless, it was not demonstrated that there was any saving of time in the calling of Crown witnesses. Whether or not it is necessary to quantify any discount for this feature (which I have some doubts about), I would have been inclined to make a 3% discount for this matter.
4. Making that allowance, however does not derogate from the reality that this was still a late plea. Further, in circumstances where the offender took his stand on a narrow point, no material has been placed before the Court to consider the strength, or likely success of the point or the circumstances in which, as was asserted, the Crown supplied evidentiary material which in some way may have been construed as tipping the scales of the likely success of the offender's argument. It is not uncommon for evidence to emerge late in pre-trial arguments. That is a forensic risk that an accused, in the position of this offender, legally represented as he was, runs, by taking pre-trial points. Noting also that the benefit to the community from that plea has also been taken into account in the manner as I have just recorded, and to avoid double counting, I would allow a discount for the guilty plea at 5%.

Degree to which offender has shown contrition (s 16A(2)(f))

1. The offender did not give evidence at the sentencing hearing. His mother, Ms Davey, did not refer to her son expressing remorse or contrition in her affidavit. There is nothing in that affidavit indicative of his assumption of responsibility for his offending at all; as distinct from his regret for the consequences that have befallen him.
2. In Dr Nielssen's report (of 21 May 2021), he reported that the offender had explained that he had been "so mentally down at the time and I was not really thinking". Dr Nielssen pressed him as to whether he realised that sexualised communication with children under the age of 16 was against the law and reported that he had answered "I just did not think about it at the time". He went on to say that at about the time of the offending he had been forced to stop work, was unable to see friends, felt bored and lonely when he received the message from the undercover police officer. Although he may regret being 'stung' by the AOI, there is nothing to suggest he had any insight as to the harm he may have perpetrated upon the recipient of the communications had she been a real teenage girl.
3. By contrast, in the pre-sentence report of July 2017 which preceded sentencing for the similar offending in August 2014, the community corrections officer had noted the offender's expression of remorse for his offending, and had not attempted to minimise or justify his offending.
4. The offender's Senior Counsel acknowledged that beyond the plea of guilty, there was no specific evidence. But, on the basis of his earlier acceptance of responsibility for the previous offence, the Court was invited to infer that he feels ashamed of his conduct and his omission to express this may be attributed to his intellectual disability.
5. I do not accept this submission. The onus of proof for this mitigating factor fell on the offender. Remorse expressed for offending 3 years ago cannot automatically be transposed to the situation he is now in. The offender was well capable of expressing (if not necessarily in precise words) contrition and accepting responsibility to those who he loved (his mother and sister) or the many health practitioners who have seen him. None of them referred to any such expressions. The circumstance of his intellectual disability cannot substantially be relied upon: he was afflicted by the same disability at the time of the earlier expression of remorse for the previous offending. To the extent that he is depressed, that mental condition is also not inconsistent with the capacity to express remorse. I treat the guilty plea as reflecting a forensic assessment of his interests made for utilitarian purposes.
6. I am unable to accept that he is remorseful.

Prospects of rehabilitation (ss 16A(2)(n) and 16A(2AAA))

1. Recent amendments to the Crime Act for a Commonwealth child sex offence treats rehabilitation as relevant to the length of any sentence or non-parole period; and also any conditions regarding treatment in any particular sentencing option. I accept the Crown's submission that s 16A(2AAA) does not, by its terms, mean that rehabilitation should result in a disproportionately more severe, or more lenient, sentence set against all other relevant considerations (Boulton v R (2014) 46 VR 308 at [72]).
2. Dr Nielssen opined that the offender would have some understanding of the illegal nature of his behaviour from his previous offending, however, his ability to learn from past mistakes was impaired as a result of his subnormal intelligence.
3. Dr Nielssen also reported on the offender indicating his awareness of a heterosexual interest from his early teenage years. The offender had indicated that he had sexual intercourse for the first time at the age of 18 and had a couple of girlfriends. One relationship was of 14 months duration when he was around the age of 19, but that was by correspondence with a woman he had met of similar age briefly in the United States. He said that he looked at a "fair bit" of pornography, but this was of the adult variety: he denied seeking images of prepubescent or underage girls; or having a specific sexual attraction to teenage or underage girls. He said that he had tried dating apps, but without success.
4. Dr Nielssen gave evidence in the sentencing hearing to the effect that for someone with his disability, his rehabilitation would be aided by occupation and activity, along with counselling.
5. It should go without saying that Ms Davey has acted as a devoted mother in support of her son, which has aided, and the Court undoubtedly expects, will continue to aid his rehabilitation. His sister, Katherine, has also participated in physical fitness ('Bootcamp') sessions with him each Saturday and has provided some support; which is also very commendable.
6. The offender submitted that favourable findings could be made about the offender's rehabilitation, but there was very little evidence to sustain such a finding. Professor Hayes did not prescribe any form of treatment. Gina Lattas did suggest his ongoing counselling, but did not give any prognosis or even commentary upon the effectiveness of the vast number of sessions the offender had received since February 2019.
7. The offender referred to part of the content of the pre-sentence report preceding the 2017 sentencing in which it was said that the offender had appeared to co-operate as best he could. The trouble is that the opinions expressed by the community corrections officer (and the psychologist who prepared the case note report), in retrospect, appear too sanguine in the light of the subsequent offending.
8. The Crown submitted that for an offender in this offender's position, rehabilitation, as a sentencing factor, is heightened where there has been therapy over a lengthy period of time and there is evidence of significant changes in his life. But where, (as the Crown submitted here) the motivation to commit the offence arises from some degree of sexual deviance, successful rehabilitation will depend on the extent to which the offender recognises a disorder and takes steps to overcome it. The Crown submitted that, with reference to his earlier offending, for which he was sentenced less than 3 years before the index offending, the Court would have to be cautious about making a positive finding about his rehabilitation prospects.
9. I agree with these submissions. I am troubled by the statements attributed to the offender in which he denied having a sexual attraction to teenage, or underage girls. That denial might have been more plausible if this was the first occasion on which this type of offence was engaged in. But the offender's record indicates otherwise. It did not matter to him when, in this case, he was informed that the AOI was 14 years of age. It did not matter to him, in relation to the 2014 offending, that he received conflicting indications that the covert online investigator was 12 or 16.
10. I acknowledge in the offender's favour his abiding by bail conditions, his family support, and his willingness to engage in sporadic physical activity which contributes to his physical and mental health. I consider that I can infer some therapeutic benefit from his regular visits to Ms Lattas, but there were no indications that such assistance as was rendered to him dealt with the offender's issues with sexual attraction to teenage girls. Further, there are few other objective indicators, such as engagement in healthy contributions to the community, motivation to upskill or positive employments prospects, prior to his arrest, that enable me to make positive findings of his rehabilitation prospects. I can only regard his rehabilitation prospects as guarded and, in light of his inability to accept that a sexual attraction to teenage girls was responsible for this offence in any way, contrary to even Dr Nielssen's evidence, I am unable to say that he presents little or no risk of re-offending.

Specific deterrence (s 16A(2)(j))

1. The Crown submitted that this was an important factor. It emphasised the offender's earlier offending.
2. It should be accepted that earlier offending, especially where it is similar to the index offending, may elevate specific deterrence (De La Rosa at [264]). There were unerring similarities with the earlier offending in this case: both involved the offender transmitting an image of the offender's penis to what he thought was a female child.
3. Further, the offender is in breach of a sentence imposed on him (an extant community corrections order) on 12 December 2019 for the unrelated drink driving offence.
4. The offender's Counsel acknowledged that specific deterrence is elevated having regard to the prior offending, however, suggested that this factor be moderated by the circumstance, identified by Dr Nielssen, that his capacity to learn from past mistakes was "obviously" impaired as a result of his subnormal intelligence.
5. With respect to Dr Nielssen, I do not place much weight on that last opinion. The offender well knew the wrongfulness of the offending. His intellectual disability - described as being 'mild' - did not impair his capacity to understand that what he did was wrong, nor substantially impaired his reasoning processes other than an appreciation of the consequences of his actions. Further, the sentencing in connection with the earlier (August 2014) offending occurred less than 3 years before the index offending. It would have been expected to have been a singular event in the offender's relatively young life.
6. Nevertheless, as I said in connection with my assessment of his mental condition, there small scope for moderation of specific deterrence given his disability and the depressed state of mind he had in the circumstances that he faced in the lead up to the offending.
7. Another submission from Senior Counsel for the offender presented something of a conundrum. It was to the effect that specific deterrence might itself be undermined by a sentence of full-time custody. The argument, addressed further below under the heading of hardship, was that because of the offender's vulnerability, gullibility or naiveté as symptoms of his intellectual (or social) disability, he was likely to be susceptible to bad influences and, might be anticipated to engage in further misconduct. The short answer is that all inmates require assessment and monitoring in accordance with their needs by the corrective services. The last order I make, later in these remarks, is intended to facilitate this.
8. I will refer later to the weight to be given to specific deterrence when considering a submission that the offender made in relation to 'quasi-custody'.

Potential Hardship to offender of custody

1. When asked in 2017 to report on earlier similar offending, Professor Hayes opined that the offender would be vulnerable within the prison system if he was to receive a custodial sentence: he would find it difficult to understand the written and 'unwritten' rules. He would be at risk of being exploited or victimised by other prisoners. There may be difficulties in him accessing appropriate mental health services. It is probable that his condition of depression would be exacerbated by incarceration.
2. Dr Nielssen stated in the sentencing hearing the respects in which he thought that the offender would experience hardship in custody. The offender was gullible and trusting and therefore vulnerable to anti-social influences. He was already depressed and had experienced suicidal ideation which again left him vulnerable.
3. The Crown did not dispute that hardship may arise in the offender's case, but noted that it would be assumed that his mental condition could be adequately managed by Corrective Services.
4. Although I did not accept that his intellectual disability substantially contributed to the offending so as to materially reduce the salience of general deterrence, I accept that this disability is likely to mean that any time he spends in full-time incarceration will be more onerous than an offender without his disability.

Covid-19

1. The offender submitted that the restrictions arising from the Pandemic in institutional settings like correctional centres should be regarded as a mitigating factor. Although the precise nature of those restrictions on correctional centres as at today's sentencing hearing was not apparent, I accept and proceed on the basis that there would at least be a not fanciful risk of restrictions being re-imposed should further outbreaks occur; which would be particularly hard on someone with this offender's condition.

Quasi-custody

1. In her affidavit, Ms Davy deposed that since the offender's arrest on 3 July 2020, the offender has been subject to bail conditions. These were set out at length in Ms Davey's affidavit. Ms Davey noted that they had become more stringent in October 2020; with particular restrictions upon his internet access. In summary, the bail conditions for most of the period (commencing 3 July 2020, then varied from 13 October 2020) which were emphasised as imposing particular burdens upon the offender were: 1. a residential condition: to live at a place in Terrigal (which became the residence of his mother); 2. a condition not to leave home unless in the company of Ms Davey or his sister or (from 13 August 2020) his NDIS support worker; 3. a reporting condition: this was to attend Terrigal police every Monday, Wednesday and Friday; 4. a condition not to leave NSW; 5. a condition to not to access the internet via any means (subject to an exception for video conferencing with his psychologist); 6. a condition not to own, possess or use a mobile phone or tablet with internet access (subject to an exception, whereby he may appear in Court appearances in the presence of his mother); 7. a condition not to contact anyone under the age of 18, be present with anyone under that age unless accompanied by the young person's guardian, or parent; 8. a condition not to seek employment with any institution or organisation involving contact with persons under the age of 18.
2. Amongst other things, Ms Davey emphasised, as positive features of his time on conditional liberty: physical fitness sessions, Friday afternoon walks with a NDIS support worker and the circumstance that he has had some friends around to visit him. But otherwise, she discerned stagnation in his life, chafing at restrictions imposed upon him.

Submissions

1. The offender's Senior Counsel submitted that the terms of bail conditions were so onerous as to amount to a form of quasi-custody. With reference to Ms Davey's evidence, the offender had been subject to conditions from 3 July 2020, but these had been augmented on 13 October 2020. That is now over two years ago. Ms Davey gave unchallenged evidence that he had spent a maximum of five hours a week outside the home after taking up personal training. His capacity to communicate with friends had been severely curtailed. His Senior Counsel submitted that conditions were so onerous that custody would afford greater capacity to communicate with friends and even spend time outdoors. It was, it was submitted, fair to compare the conditions under which he has lived to a residential rehabilitation - a typical barometer of whether someone has been subject to quasi-custody.
2. The offender submitted that a further discount could be made for quasi-custody in the order of 40-50% (being between 48 to 60.5 weeks). The offender drew the Court's attention, as a basis for comparison, to the case of R v Quinlin [2021] NSWCCA 284 ("Quinlin"), where the sentencing judge's finding of 30% of his bail period was taken into account as time served was undisturbed on appeal. It was submitted that the offender was subject to more stringent conditions than that particular offender. I note that at [97], the Court of Criminal Appeal (Price J, Hamill J and Ierace J agreeing) emphasised that mental health issues in combination with a lengthy period of time that an offender is on conditional bail may increase the burden of restrictive bail conditions. It is pertinent to observe, however, that Price J regarded the extent of the allowance made for the period on bail in that case as being "generous".
3. The Crown cited the Court of Criminal Appeal's decision in Bland v The Queen (2014) 241 A Crim R 51 a case which the Crown fairly acknowledged concerned a more serious offence than the index offending. Nevertheless, at [127]-[128] Johnson J (with whom Ward JA - as her Honour then was - and RS Hulme J agreed) did not equate bail conditions that the offender was required to live at home with one's family, and be accompanied by one or other of a number of nominated relatives when not at home, to a treatment facility. His Honour observed that restrictive accommodation requirements did not necessarily amount to quasi-custody.

Consideration

1. For federal offences, onerous bail conditions significantly interfering with the offender's liberty may be taken into account (R v Hudson [2016] SASCFC 60 at [15]-[18], a case where the aspect of home detention bail was treated under the rubric of 'antecedents'.
2. In the decision of Quinlin which the offender's Senior Counsel referred to, Price J observed: "87 …. Bail conditions imposed in accordance with s 20A will not ordinarily be considered to be "quasi-custody" so as to justify a lesser sentence or the backdating of a sentence as the condition(s) imposed will ordinarily be reasonably necessary to address a bail concern (s 20A(2)(a)), and reasonable and proportionate to the offence (s 20A(2)(b)), and appropriate to the bail concern identified (s 20A(2)(c)), and no more onerous than necessary to address the bail concern identified (s 20A(2)(d)), and reasonably practicable for the accused person to comply with the condition (s 20A(2)(e)). Most bail conditions restrict a person's liberty in some way. 88. Nevertheless, there will be occasions when bail conditions are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as "quasi-custody". The onus of establishing whether an offender's bail conditions amount to quasi-custody falls on the offender on the balance of probabilities."
3. I accept, on the probabilities, that the offender has not been at liberty to leave his home unless in the company of specified persons (his mother, sister or NDIS support worker) or for the purpose of reporting to police (on 3 days of the week). Within the home, he has been constrained in his ability to access the internet. He spends most of his time watching television.
4. The aspect of his capacity to leave home of his bail conditions is far from the scenario of an offender being sent to, and subjected to the constraints imposed in a mandatory rehabilitation facility, as explained in Bland (and R v Perry [2000] NSWCCA 375 at [33]). To the contrary, the offender has been at home with what appears to be the two most important people in his life: his mother and his sister. This distinguishes the offender's position to that of the offender in Quinlin, who was deprived of the opportunity to live with family and friends of his choosing. But there was no actual curfew or temporal restriction upon his capacity to roam outside the home as often as he, his mother, sister (or the NDIS worker) liked. As his mother has chronicled, with his mother, and other supportive friends, he has attended soccer matches and has seen two movies with his mother; as well as accompanying her when she does the shopping. Further, the love and support he is receiving at home from a devoted mother and supportive sister is qualitatively different to that which he would receive in real custody.
5. An associated difficulty for the offender, as was explained in Hughes v R (2008) 185 A Crim R 155 at [38] (and applied in Gardiner v R [2018] NSWCCA 27), is that one of the reasons why credit is given to an offender who participates in a rehabilitation facility, in terms of backdating the commencement of a sentence, is that the time spent in rehabilitation has been 'productive'. In this latter respect, whilst the offender has spent many sessions with Ms Lattas over the period in which she has consulted with him, over the last two years or so that he has been subject to bail and, although it appears, on balance that the sessions have helped to stabilise, or at least manage, his depression, there is nothing to indicate any rehabilitation towards the criminogenic factor of his attraction to underage teenage girls.
6. A further difficulty for the offender is that to some extent, given his underlying conditions, including most notably his depression in the lead up to the offending, some of the things that he expressed his aspiration to undertake (getting a job, travel, playing golf and seeing friends) may not have been undertaken in any event even without the restrictions on his liberty. The Crown pointed to paragraph 15 of Ms Davey's affidavit where she deposed that in the lead up to the offending the offender: "..pretty much stayed in his room. Although I tried to encourage him to leave the house for physical exercise and mental health, he rarely did. He became very withdrawn when not chatting to friends online while playing games and watched TV."
7. In fairness to the offender, it should be acknowledged that these observations were made, in the lead up to offending in May 2020, at a time when the Pandemic had gripped these shores and when social distancing restrictions had commenced and where non-essential jobs were made or became redundant or scarcer; so that the loss of a job may not be mitigated by obtaining a new one quickly.
8. There was a real question, however, whether such motivation as the offender expressed to get out of the home and engage in productive activity could be sustained. Further, even if he was motivated, the same Pandemic has, for the better part of the last two and a half years, reduced the scope of employment, or at least employment involving personal contact for many people. So the inability to obtain employment cannot be solely attributed to bail conditions. It is likely that with the Pandemic, the offender's general absence of qualifications and questions as to his motivation more generally may suggest that he would have had difficulties in obtaining employment even without the effect of the bail conditions.
9. I consider that what has hit the offender hard has been the deprivation of internet access, in the way that it has have impeded electronic access to his friends, particularly with the playing of games. To reiterate, Professor Hayes likened the offender to being functionally equivalent to a 12 year old in certain respects. Many parents with 12 year old children can, in this day and age, identify the effects of depriving such children with phones or devices with internet access. But this restriction did not totally exclude social connection by other means. Ms Davey indicated that the offender had been out with friends to watch the football, albeit rarely. I acknowledge, as his Senior Counsel submitted, that removal of electronic connection was a substantial practical constraint upon his ability to interact socially, especially in this age of prevalent social media, but for those true friends who stuck by and were truly supportive of and sympathetic to the offender, there were other ways of arranging social contact, even of a more limited kind, which true friends might be expected to tolerate. It is not axiomatic that the friends that Ms Davey identified as having contact with the offender during the period of his bail would have gone to the trouble of contacting him if he had been incarcerated, by any means. In this regard, and without intending to disrespect or hurt the offender or his family, I note that among the many pages of evidence that the offender relied upon in this sentencing hearing, aside from a single page reference from his old school friend, Mr Clarke, there were no written testimonials from other friends. I accept the Crown's submission that, given the commission of the 2014 offence and the index offence, the severe constraints upon his internet access was a relatively small price to pay for his receiving liberty on a conditional basis and living in the home.
10. Subject to a qualification, I do not consider that the deprivation of internet usage is something that can amount to quasi-custody, but rather a matter that goes to (and reduces, in a limited way) the weight to be given to the sentencing factors of specific deterrence and retribution.
11. The qualification is that the inability to obtain internet usage, when combined with restrictions in leaving the home without accompaniment, has substantially impaired the offender's capacity to obtain employment. I consider that occupation is very important for this offender, still a relatively young man, in terms of his mental state. I have regard to the substantial of period of time he has been subject to the bail conditions. The Crown did not suggest that he was responsible for the delay that has arisen. I have referred to some reasons which cast doubt upon the offender's likelihood of securing employment in any event. Nevertheless, I think some allowance can be given to reflect 'quasi custody'. I reject as excessive the proportion (50%) nominated at the hearing by his Senior Counsel. I propose to make allowance for the offender in the order of 20%.

Other sentencing principles

1. The factors in s 16A(2) are not exhaustive and do not exclude other sentencing considerations in general law, such as retribution and denunciation, facilitating the administration of justice and, as I have indicated more than once in these remarks, protection of the community.

Comparable cases

1. It is well-established that for federal offences, in the interests of sentencing consistency, sentencing judges should have regard to sentencing practices for a subject offence across the country even if there is no requirement for numerical equivalence in the sentence to be imposed (Hili v R; Jones v R (2010) 242 CLR 520 at [48]-[49]).
2. But neither party placed comparable cases before the Court. The Crown explained that it had not found any case that was helpfully comparable.

instinctive synthesis

1. The Court's ultimate concern is to impose a sentence that is of a severity appropriate in all of the circumstances of the case.
2. The Crown correctly conceded that given the date of the offending, the statutory presumption in favour of an actual term of imprisonment (in s 20(1)(b) of the Crimes Act) is inapplicable.
3. The Crown submitted that an order should be made under s 20(1)(b) (as that provision was then stated at the date of the offending), with the offender to be released on a recognisance after serving a term of actual imprisonment. The Crown correctly submitted that an ICO is not available in respect of this particular offence (by operation of ss 67(1)(b) and 67(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
4. The offender did not argue for a discharge without conviction (under s 19B). In his written submissions, Senior Counsel submitted that it would be open to the Court, if minded to impose a term less than 3 years, to order that the offender be released forthwith. But if the term was to be greater than 3 years, it should be backdated and the offender should be allowed a longer than usual period on parole. In his oral submissions in the Court, Senior Counsel's position evolved to the degree that it was appropriate for the offender to spend some time in actual incarceration before being released on recognisance. That, as I have noted, accorded with the Crown's position.
5. Weighing all the considerations in s 16A of the Crimes Act 1914 (Cth) adverted to, I find, in accordance with s 17A(1), that no sentence other than imprisonment is appropriate in all the circumstances of the case.
6. I do however, consider that after spending a minimum period in full-time incarceration, reflecting all the considerations of sentencing alluded to, the offender should be released on a recognisance release order. I have closely considered the offender's subjective circumstances when considering that minimum term, accepting that his rehabilitation will be aided by very close supervision upon his completion of that minimum term which will follow from the conditions that will be imposed.

Sentence

1. Mr Robinson, please stand.
2. You are convicted of count 1 on the Indictment.
3. Taking into account your guilty plea (and the allowance for your facilitating the administration of justice that I referred to earlier) and the other factors I have remarked upon, I sentence you to a term of imprisonment of 2 years and 3 months commencing on 23 May 2022 and expiring on 22 August 2024, with a minimum term of 1 year and 4 months expiring on 22 September 2023.
4. Pursuant to s 20(1)(b) of the Crimes Act, you are to be released on recognisance after 22 September 2023, upon giving security in the sum of $1,000, to be of good behaviour for the remaining period of your sentence, being 11 months. This is subject to your compliance with the following conditions: 1. you are subject to the supervision of a probation officer appointed in accordance with the order, which I nominate as the Wyong Community Corrections Officer; and 2. you obey all reasonable directions of the Wyong Community Corrections Officer; and 3. you are not to travel interstate or overseas without the written permission of the Community Correction Officer; and 4. you undertake such treatment or rehabilitation programs that the Wyong Community Corrections Officer reasonably directs.
5. I also direct that the reports of Dr Olave Nielssen dated 21 May 2021 and Professor Susan Hayes dated 21 June 2017 be brought to the attention of the Wyong Community Corrections Officer.

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