R v Sams

District Court of NSW|2021-09-01

Introduction

These are the sentence proceedings after the trial of Jason James Sams found guilty by a jury in the District Court in Newcastle where he appeared for trial and before me as the presiding judge and a jury of 12.

The Offences

The offences with which the offender was charged were both contrary to s 66A(1) Crimes Act 1900 with the application of s 80AF Crimes Act 1900 because of the range of dates between which the offences were alleged to have occurred.
Count One was expressed thus: between 31 December 2007 and 31 December 2010, at Thornton in the State of New South Wales, did have sexual intercourse with AA-B, a child then under the age of ten years, namely, four, five, or six years.
Count Two was expressed in identical terms.
The maximum penalty specified for an offence contrary to this provision is imprisonment for 25 years. There is a standard non-parole period of 15 years specified for the purpose of Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999.

Events since the Trial

Before I embark upon the various matters that inform the decision of the court with regard to the sentence that must be imposed I wish to put forth events that occurred on 26 August 2021 at 12.20pm, when my Associate received a telephone call in chambers from an identified telephone number from a female caller who provided her given name and expressed her view that her son was innocent and asserted that the judge was paid off, the judge did not give the jury enough time, for their purposes in deliberation I would infer. She concluded the call with the representation, "Yeah, he's going down." This was her response to advice my Associate offered that she should address any concerns that she had to the court registry which would make whatever arrangements would be required in response.
The caller added in the representations to my Associate that the jury were paid off also I should add.
The event was reported to the sheriff and the matter has been put into the hands of New South Wales Police. On the face of the material, it would appear that there might be an offence contrary to s 322(c) Crimes Act 1900 which specifies that: "A person who threatens to do or cause, or who does or causes, any entry or detriment to any person --- intending to influence any person in the person's conduct as a judicial officer, is liable to imprisonment ..."
There is also scope it would appear on the face of things for prosecution for an offence contrary to s 474.17 Criminal Code 1995 Commonwealth; that provision is in respect of an offence of using a carriage service to menace, harass or cause offence.
I make it clear that that conduct has not been brought to account to the disadvantage of the offender in the determination of sentence in these proceedings. Whatever motivated the person to make that phone call, clearly, it was an unwise decision, but it does not impact upon what is about to occur. It is included in this judgement to ensure transparency and nothing more needs to be said in relation to it.
The documents to which I have referred at this point will be marked for identification 1 in the sentence proceedings and sealed in an envelope to be kept on the court file.

The Standard Non-Parole

The assessment of sentence in this matter requires the consideration of the standard non-parole period provisions to which I have referred, because the standard non-parole period is one of the benchmarks that one must bring to account together with the maximum penalty specified for the offence. The provisions introducing standard non-parole periods are set forth in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999 are found in their present form following the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39 adopting the principles enunciated in that decision.
Section 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions.
Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence that falls within the middle range of objective seriousness taking into account only the objective factors effecting the relative seriousness of that offence.
Section 54B(2) provides that the standard non‑parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account.
Section 54B(3) requires that the Court record its reasons for setting a non-parole period that is longer or shorter identifying each factor taken into account.
The objective gravity will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offences before me without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending bringing into account relevant factors provided in s 21A of the Act except for those that are essential elements or integral characteristics of the offence. This bare statement should be considered with the assistance provided by Johnson J in Tepania v R 2018 NSWCCA 247 to which I shall come in a moment.
The fixing of a non-parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical or staged process of reasoning when assessing appropriate sentence but must identify all relevant matters bearing upon the question of the appropriate sentence, on the process of intuitive synthesis as discussed for example by McHugh J in Markarian v R [2005] HCA 25.
In the determination of these sentences for which there is specified a standard non-parole period given, it and the maximum penalty are legislative guideposts for the Court along with other established sentencing practices and by reference to matters identified where relevant in s 3A, 21A, 22 and 22A of the Act.
It is common between the parties that these offences fall below the middle range of objective seriousness. There is some marginal difference between the positions taken on behalf of the Crown and on behalf of the offender respectively. The differences, perhaps merely matters of expression, are so marginal as to leave me with little difficulty in finding that objectively the misconduct on this occasion falls below middle range objective seriousness, not at the lower end of the range but perhaps at some point between that level and mid-range objective seriousness.
This is always a matter of judgement and minds will often differ. My perception of the evidence and the material before me leads me to that conclusion.
It does not follow of course that one then applies some arithmetical formula to establish a range of sentencing or sentences setting the sentence and the non-parole period at a percentage of the period specified in the provision. The decision as to where to place the objective seriousness of the offence is but part of the task of sentencing. The synthesis required is of all matters objective and subjective so that a sentence will be reached reflecting all of the relevant matters to the exercise of the sentencing discretion. In this case I can indicate that the sentence identified for these offences will be determined with particular focus upon the developmental delay identified by the doctors who have assessed the offender, predominantly for the determination for his fitness for trial. The findings made are clearly relevant also to the determination of sentence.
I referred to the judgement of Johnson J in Tepania v Regina (ibid). His Honour at para [110] summarised the provisions to which I have referred and referred to the explanatory memorandum published upon the amendment to these provisions following upon the decision in Muldrock v The Queen (ibid). His Honour continued at [112]: "112 In sentencing for an offence (whether or not a standard non-parole period offence), a Court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence... 113 The concept of 'moral culpability' was used by the sentencing Judge in this case and in submissions to this Court. The term 'moral culpability' has been used (in a somewhat flexible way) as part of the general law of sentencing ..."
His Honour then referred to authority, including Veen v R (No 2) [1988] HCA 14 where it was observed that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability.
I agree with the submission which has been made on behalf of the offender that moral culpability in this instance has been reduced or has been shown to be reduced by reason of the challenges this young man faces. He does have an antecedent criminal history to which I shall come in due course but it is not such as to illuminate moral culpability; it indicates perhaps the limitations which would have impacted upon his capacity to control impulse. I shall explain further in due course.

Application of s 80AF Crimes Act 1900

The other point I should address is the s 80AF Crimes Act 1900. This provision was introduced in respect of offences such as this. It applies if there is uncertainty as to when during a period conduct is alleged to have occurred and the victim of the alleged conduct was for the whole of that period a child. It is necessary that there be no time during that period that the alleged conduct if proven would not have constituted a sexual offence, and because of a change in the law or a change in the age of the child in that period, the alleged conduct if proven would have constituted more than one sexual offence during that period. Subsection (2) provides; "In such a case, a person may be prosecuted in respect of the conduct under any of those sexual offences (except one that has a higher maximum penalty than any one or more of the other offences) regardless of when during that period the conduct actually occurred."
Nothing is submitted in terms that this provision does not apply here. The Prosecution case was that the instances of conduct upon which the two charges have been preferred were not isolated incidents. Having said that, it must be noted that the offender is to be sentenced upon those two offences only.
The Crown in submissions has provided the following points:

The Crown cannot point to any evidence that would allow a finding as to precise occasions when such conduct occurred otherwise, subject to the evidence that was led for tendency and context purposes.
It confines its submission to the proposition that he is to be sentenced for the two counts only, noting simply that they should not be viewed as isolated incidents.

On behalf of the offender it was noted that there could be no finding beyond reasonable doubt as to the precise time within the indictment range, of when the offence in each case was committed. The submission made on behalf of the offender is that in the circumstances it could not be proved beyond reasonable doubt that the offender was older than 18 years and ten months at the time of the offence and it could not be proved beyond reasonable doubt that the victim was younger than his age at 31 December 2010, namely six years of age. It is conceded though that he was at six years of age, well under the threshold of ten years specified in the provision creating these offences.

The Facts

I do not spend a great deal of time dealing with these. They have been succinctly summarised in the Crown's submissions and those offered on behalf of the offender. The evidence is clear with regard to what is said to have occurred.
My task is to find facts that are consistent with the verdicts of the jury according to my assessment of the evidence. I am not obliged to find facts that are most favourable to the offender but one must not make findings adverse to the offender in respect of the Crown case, unless those facts are established beyond reasonable doubt. Those matters upon which the offender would rely are to be established upon the balance of probabilities in accordance with authorities such as for example The Queen v Olbrich [1999] 199 CLR 270.
The facts summarised by the Crown are that on the first occasion charged the victim was in the home, which at that time he occupied with the offender's parents. The offender's parents are the grandparents of the victim. The offender told the victim to go into his bedroom and there the offender closed the door and exposed his penis and told the complainant to perform fellatio upon him. The complainant did as he was asked and the offender ejaculated in the commission of the offence. He then had the victim remain on the bed while he the offender played computer games.
The second offence occurred when the offender and the complainant were playing computer games in the offender's bedroom. The offender asked the complainant to "suck his dick" or words to that effect. He took his pants off and sat on the floor and the complainant performed fellatio upon the offender. There was no allegation made that ejaculation occurred at that point.
The complainant was interviewed by a JIRT team, first on 3 October 2008 and then subsequently on 10 September 2019 and 2 December 2019. The arrest did not take place until 9 December 2019.
The evidence in the trial in addition to that which was provided by the victim, which included evidence taken before another judge on 16 April 2021, included evidence from a friend of the victim, Brock Patterson, who gave evidence of his association with the victim and of conversation he had with the victim after these events.
Evidence came from the offender's sister. Evidence also came from the offender's father, an out of home care caseworker, Ms Williams who was a friend of the victim's mother. Evidence was called from BB, the grandmother and mother of the victim's father. CC, victim's mother, gave evidence: a friend of the offender with whom he was in a relationship for a time also gave evidence. The offender's brother gave evidence. Another man with the name Bird who had been in a relationship with the victim's mother gave evidence, and the offender's parents each gave evidence.
It is not necessary to provide an analysis or discussion of the evidence given by that expanse of witnesses. It is sufficient to note that this family was in a state of chronic distress. The familial structure was that the offender and the victim's mother were brother and sister, and the victim therefore was nephew to the offender and the grandson to the offender's parents. The acrimony between the victim's mother and her parents was patent; it was apparent that the disruption had been of some significant length of time. It is against that background that this offending occurred.

The Offender

The offender, born in 1989 is now 32 years of age. He was charged with an offence of assault occasioning actual bodily harm in July 2012 and an offence of damaging property. For the first of those he was placed on a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a period of 12 months and for the second offence was fined. In October 2016 he was charged with damaging property and was made subject of another bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. The assault is said to have occurred when he took his mother by the throat. The property damage, as I understand it, was also conduct directed towards his parents.
He has no other antecedent history of offending, and within the context of an investigation of his developmental delay it is apparent that the misconduct on that occasion was part and parcel of the inability the offender has had to maintain impulse control. If I read these reports correctly, and I believe that I do, he is almost childlike in his perception and his capacities.
The first report I have to deal with is that of psychologist, Dr Marcelo Rodriguez, written on 23 December 2020. I might observe with regard to this report, and indeed the others that have been tendered in this case, that these reports are comprehensive, well-written, offering opinions that are soundly based upon facts and assumptions of which there is clear and compelling evidence. It is unfortunately not often the case that the Court is assisted so well with material such as this.
This report was prepared at the request of the Office of the Director of Public Prosecutions which asked for a new psychological assessment. The offender was interviewed in the offices of his legal representatives at Newcastle on 17 December 2020. The psychologist had also a letter of instructions, a school counsellor report, a semester 2 report from 2004 year 9 from Callaghan College, the Crown case statement, a notice of alibi, reports of Dr Stephen Allnutt 31 August and 2 November 2020, a report from Ms Ann Lucas a forensic psychologist 19 October 2020 and a 3 hour psychological assessment conducted on 17 December 2020.
This report provides a comprehensive analysis of the findings made by Ms Lucas on 19 October 2020 upon testing she administered which revealed that intellectual functioning fell in the borderline range; there were discrepancies in individual scores (non-verbal reasoning and verbal reasoning); it appeared that processing speed and working memory had significant impact upon his overall performance. She concluded that he suffered from an intellectual disability; his performance in several key domains of cognitive function displayed notable impairment which had significant functional consequences in the speed he could process information; his range of understanding, as well as his ability to apply general principles in specific situations.
His working memory, a construct of the ability to sustain attention, concentration, and exert mental control, was estimated to below 98 percent of his peers, in the extremely low range. His processing speed performance fell in low average range. Assessment of verbal memory placed his performance below 98 percent of his peers on his immediate recall but after a below 30 minutes showed slight improvement at below 95 percent of his peers, an improvement of marginal offensive significance in the circumstances.
There were no clear executive function deficits. His reading efficiency was calculated to be below 97 percent by same aged peers.
Ms Lucas was of the opinion that he was unable to provide instructions and or have the capacity to follow proceedings. She found he was unfit to be tried because of intellectual disability.
There is a summary of what Dr Allnutt, psychiatrist, offered in his first report in which he concluded that the offender was not fit to be tried.
This report then provided a summary of demographics, his personal education and occupational background; he was a slow learner at school. He was in special classes in primary and secondary school. He was employed in skilled labour though with the assistance of disability support networks and was in receipt of disability support pension.
He had a medical history of child asthma and hypercholesterolemia for which he was not medicated. His mental health history was discussed; there was no history of mental disorder including psychosis though there is noted family history of bipolar disorder and schizophrenia. He rarely drinks alcohol and when he did he only consumed two schooner drinks and only at major events such as Christmas. He began smoking cannabis in 2006 using one or two bongs per night. This was to help him sleep.
He denied any involvement in the alleged sexual offences and I note that he continues to occupy that position.
His command of language was basic. He demonstrated simple language skills but could communicate effectively. He did not appear to have word-finding difficulties. There were no obvious gross motor problems of speech, no dysarthria, a manner of speech disorder. His affect was reactive. There was no evidence of mood dysregulation; no significant coarse motor tremor in his hands or arms, no evidence of hallucinations, delusions or thought disorder.
The cognitive difficulties that were reported were once again noted. He said at work he had few problems. He could figure out what he was required to do and he could build crates and pellets made of wood without difficulty in the welfare group where he was given work; that was employment with a service for people with disability. He has failed the driving theory exam three times; he had difficulty with the same questions each time and thus has not the capacity or the authority to drive a motor vehicle.
The tests administered for this assessment were then itemised and the results in each case were provided. Verbal comprehension was found in the low average range. His perceptual reasoning, a measure of non-verbal fluid abilities and visual motor coordination skills was within the low average range. His full IQ score was in the low average range. His working memory and processing speed placed him in the third percentile, the lower borderline range; so too his affect in respect of both capacities, that is, working memory and processing speed. His reading performance was at the 0.4th percentile and his reading comprehension performance fell at the fourth percentile placing him at the equivalent of a sixth grade school pupil. His recall of items in the memory test, namely the verbal learning task word list test, was below average for all five trials. His executive function seemed unimpaired. Motivation was good. He self-reported normal symptoms of depression and anxiety and stress. These were in keeping with the psychometric results that were achieved.
This report comes to the conclusion with a summary beginning at p 9. I need not rehearse once again what was said other than to note that he is assessed as fit to plead, to use the words adopted by Dr Rodriguez, noting the risk of suggestibility, which would require appropriate management in the conduct of the proceedings.
Dr Anthony Samuels provided a report written 2 February 2021 addressed to the Office of the Director of Public Prosecutions. He assessed the offender on that day by way of a Zoom facility which did not impede the process. He had copies of Dr Stephen Allnutt's report and the report from psychologist, Anne Lucas (19 October 2020). He referred to the well- known authorities of R v Presser [1958] VR 45 and Kesavarajah v The Queen (1994) 181 CLR 230 and quoted the passages to which the courts are often referred in fitness hearings drawn from those judgements. He also had access to the Crown case statement, alibi notice, the reports to which I referred of Dr Allnutt of 31 August 2020 and Anne Lucas of 19 October 2020 and the further report of Dr Allnutt on 2 November 2020.
This report provides a comprehensive analysis of the facts and the family circumstances in which it is said that these offences occurred. He refers also to the uncharged acts with reference to the JIRT interview where those representations were made. The doctor provided a thorough analysis and description of the content of the documents to which he was taken. There is no need for me to repeat what is there. He formed his own assessment of the offender, then aged 31, with reference to his current living arrangements with his parents, his relationship with the woman to whom I referred before when alluding to the witnesses called in the trial. He had a perception of their relationship of which it might be said that in his mind she was demanding of sex, ultimately leading to the breakdown of the relationship. That is not entirely consistent with my understanding of the relationship and its disintegration as described in the course of the trial.
His home life was said to be fine. There was no violence, no abuse, through his formative years. He had a lot of friends. He had limited sporting activities as he grew. He had difficulty with theory work at school but not practical work. He referred to the offender's special needs classes in which he was taught. He did suffer bullying at school which is unfortunately a plight suffered by some people in the school setting, burdened as this offender has been through his life. There is discussion of his educational history, his occupational issues, and the absence of any psychiatric admissions, there is no evidence of self-harm in the past.
His sister, CC, has bipolar disorder and schizophrenia; that is the victim's mother. She is prescribed Seroquel. He has no medication. His drug and alcohol history is discussed. He is attributed with the representation that he assaulted his father and was charged with the assault and malicious damage. It is also represented that he assaulted his mother and pleaded guilty but two assault charges do not appear on his antecedent record. His memory does not appear to be consistent with his record of offences.
The history to the index offences has the following attribution. Mr Sams said he was charged with these offences in December 2009. He said he had no knowledge of these issues before. He absolutely denied being confronted by his sister with a knife many years before. He said CC's children were taken off her in 2012 because she was not able to provide for them. He was having contact with them up until that time and there were no issues, but he has not had contact thereafter.
The reference there to his sister confronting him with a knife is a reference to the suggestion or the proposition that she went after him with a knife when she learned of misconduct toward her child. It is the fact that the evidence in the trial included the lifestyle followed by the victim's mother in the course of which there was intervention in the interests of the children with the involvement of the victim's father's parents, particularly the grandmother, who over a period of time was involved in provision of their care.
There were no mental health issues. A mental state examination was conducted; it was considered and ultimately the opinion offered was of a mild intellectual disability notwithstanding the cognitive deficits that were observed. Dr Samuels noted that his clinical impression of those cognitive abilities was more aligned to that of Dr Rodriguez rather than others.

Consideration

It is patent that this man has challenges as identified in the material to which I have referred. The Crown concedes that the wealth of evidence, dealing with his limited intellectual capacity. The risk of re-offending is noted by Ms Lucas in the low to moderate range which the Crown brings to my attention.
The Crown concedes the more onerous conditions of prisoners through limited contact with visitors but more recently with the risk of infection because unfortunately of the COVID-19 disease the Corrective Services system in more than one of its centres. This has impacted upon the work of the Court in a number of respects this week where there has been lockdown in establishments across the State with difficulty having people who are to appear presented to Court even by way of the audio visual facilities. I am reminded of the more recent developments by Mr Buxton which I have brought to account.
All evidence in the trial was called in the Crown case. There was no evidence led by or on behalf of the offender. There was no evidence led in the sentence proceedings from the offender. I should by way of comment note the caution that is urged in decisions such as Imbornone v R [2017] NSWCCA 144, specifically the judgement of Wilson J. Before then there was the well-known authority of R v Qutami [2001] NSWCCA 353 wherein Smart AJ urged caution when assessing attributions in psychiatric or psychological assessments when evidence is not called from an offender leaving representations unsworn or un-affirmed and untested.
I do not see such difficulty in this case though, accepting what are the consistent representations attributed to the offender by the psychiatrists and psychologists who were called upon to assess him. As I indicated earlier the assumptions and premise upon which the opinions were offered have sound foundation, psychometric testing across the spectrum produced consistent results. It is apparent that the offender offered no presentation that might suggest duplicity or deception in the course of the consultation processes.
He maintains his innocence in respect of these charges and thus one does not have any evidence upon which to find an explanation for the misbehaviour of which he has been found guilty. By its very nature, the description given to it involved a measure of impulsivity on each occasion, and so to with regard to the uncharged acts upon which the Crown relied for context. There is a sound basis for concluding that his capacity for impulse control is compromised, evident in the offences charged previously and briefly described in the material before me, and supported by the findings upon clinical assessment and psychometric testing.
In this instance I find that impairment illuminates the question of moral culpability as does his antecedent record, but only so as to reduce moral culpability in this case.
I am satisfied that the line provided in s 5 Crimes (Sentencing Procedure) Act 1999 was crossed and that no sentence other than a sentence of imprisonment should be imposed. All of the purposes of sentencing need to be considered in this case. General deterrence attracts limited weight because of the challenges that are burdening the offender and which have burdened him throughout his life. He is not an appropriate vehicle to apply principles that are relevant to general deterrence. There is appropriate weight required to be given to personal or specific deterrence to hopefully ensure that the offender appreciates the significance of the wrongdoing of which he has been found guilty and consequences that will flow from it if it is detected. There must be adequate punishment for the misconduct bearing in mind the reduced moral culpability which I find established. There is a need to provide adequate protection from the offender and the risk that he might behave in such a way in the future. He needs to have the opportunity to pursue rehabilitation. There can be no finding of contrition and remorse of course because there is none. Rehabilitation though is a matter that needs to be assessed in the broader context including what benefits might be derived from properly managed supervision once he is released to parole.
The offender must be made accountable for what he has done and his conduct clearly must be denounced because the sexual assault of a child is deplorable conduct that the Courts will not tolerate; this must recognise also the harm suffered by the victim in the conduct of which the offender has been found guilty.
I agree with the submission conceded by the Crown that there are special circumstances.
Aggravating factors that must be brought to account include the antecedent record but only to the extent that it might impact upon assessment of leniency that might otherwise have been allowed. It certainly does not aggravate the offending or a proportionate sentence to the misconduct. I note that at the time of the present matters he had no criminal history. I had to observe the timelines in regard to that submission. The offending was between 2007 and 2010. The antecedent offences were in July 2012 and October 2016. It is not appropriate to ignore that antecedent history for the reason that I find it illuminates the moral culpability in light of the nature of the conduct underpinning those charges, as I have noted earlier. As to my remark that his antecedent record is an aggravating factor, it is not per se an aggravating factor in light of the timeline of the offences with which the offender has been charged so far in his life, but it is a matter that as the Crown has submitted impacts upon the extent of any leniency he might otherwise have extended to him.
An aggravating factor that has to be brought to account is that the offence occurred in the home which was occupied by the victim.
I have already noted that moral culpability is reduced. Special circumstances include that this is his first time in gaol and he does require an extended period in the community after the custodial component of his sentence to facilitate his prospects of rehabilitation which I agree are reasonable in the circumstances if he is given adequate supervision on parole. There is also available a self-regulation program in custody, sex offender specific, which one hopes the offender will be able to access. There is also his youth, his intellectual disability that leaves him a vulnerable inmate by reason of his circumstances; I have taken that into account. I also bring to bear the COVID-19 problem as it was and as it currently is with the disease having entered into the Corrective Services establishments. I am reminded of what the Appellate Courts have said regarding the additional hardship by reason of the COVID-19 limitations.
I am also asked to consider the concept of uncertain suspense which is said to be found in the judgement of Street CJ in the decision of R v Todd [1982] 2 NSWLR 517, concerned with delay in the outcome of proceedings. There is a reference in the sentencing bench book at 10-530; I will read the passage because I have accepted it has application. "The "state of uncertain suspense" (Street CJ in R v Todd at 519) - where an offender experiences a delay following the initial intervention of the authorities - is a matter which can entitle an offender to an added element of leniency: R v Blanco (1999) 106 A Crim R 303 at [11], [16] and Mill v The Queen at 64-66). Where an offender relies on such a mitigating factor, they must establish it on the balance of probabilities: Sabra v R [2015] NSWCCA 38 at [47], applying The Queen v Olbrich (1999) 199 CLR 270. In Sabra v R, the court held that the sentencing judge had erred in tending to the view that although the offender had evidently suffered anxiety and concern over the delay, greater consequences needed to be established before the delay could be taken into account: Sabra v R at [44]-[46]."
The COVID-19 pandemic is undoubtedly a situation of uncertain suspense. According to the submissions on the offender's behalf there is the possibility of transmission and the consequences arising therefrom in the custodial setting. Whether that be viewed as a matter of uncertain suspense or simply an added burden because of the nature of circumstances might cause minds to differ, but I accept that it is a matter to be brought to account in mitigation of penalty that might otherwise be imposed.

The Sentence

The offence involving the ejaculation is said by the Crown to be a matter of more significance and more serious than the later offence charged in count two. I would agree with that view because that matter involved the offender having achieved sexual release. No such finding could be made in respect of the second count on the indictment in light of the evidence, but it must be that his purpose was sexual gratification in both instances and allowing for that slight difference.
In respect of count one, of which I convict the offender, I specify a sentence of imprisonment of 5 years including a non-parole period of 1 year 6 months.
In respect of the offence charged in count two in respect of which I convict the offender I specify a sentence of 4 years and 6 months and I specify a non-parole period for that offence of 1 year and 6 months.
I impose an aggregate sentence: it shall be of 5 years and 9 months. I specify a non-parole period of 2 years upon the finding of special circumstances. In coming to the decision with regard to these periods I bear in mind what I find to be the reduced moral culpability implicit in the commission of these offences. The commencement date is 11 June 2021, the non‑parole period expires on 10 June 2023 and the head sentence expires on 10 March 2027.

Amendments 12 October 2021 - Initials of names changed 09 November 2021 - [17] and [19] - Typographical errors amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2021

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (11)