R v Sorensen

R v Sorensen - [2024] NSWDC 138 - NSWDC 2023 case summary — Zoe

[3]

Judgment

The offender is to be sentenced in respect to five offences of intentionally record intimate image without consent (domestic violence) contrary to s 91P(1) of the Crimes Act 1900 and one offence of attempt to intentionally record intimate image without consent (domestic violence) contrary to section 91P(1) / 344A of the Crimes Act 1900.
In addition to the six substantive matters, the offender asks when passing sentence the Court take into account an additional 10 offences in respect to the complainant KC and a further 10 offences in respect to the complainant SC of intentionally record intimate image without consent also contrary to s 91P(1).
The maximum penalty for each of these offences (3 years) acts as a sentencing guidepost or reference point.
In dealing with the matters on the Form 1, I will need to ensure that I apply the principles enunciated by the Court of Criminal Appeal in the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146.
Admitted on behalf the Crown were the following: 1. C1 - Form 1A charge certificate 2. C2 - Form 1 list of additional charges Sequence 27 3. C3 - Form 1 list of additional charges Sequence 28 4. C4 - Certification - s 35A Crimes (Sentencing Procedure) Act 1999 5. C5 - Agreed Facts 6. C8 - Agreed facts on previous offences 7. C9 - Offenders criminal history 8. C10 - Offenders conviction, sentencing and appeals. 9. C11 - Sentencing Assessment Report 10. C12 - Psychologist assessment report of Favio DiBona dated 12 September 2023 11. C13 - Victim impact statement of SC 12. C14 - Victim impact statement of KC
Admitted on behalf of the offender were the following: 1. O3- Report of Dr Antony Henderson (forensic psychiatrist) dated 12 September 2023 and email correspondence 2. O4- Report of Ms Jocelyn Medland (psychologist) dated 27 January 2023 and email correspondence 3. O5- Letter from Mr Tao Xia (psychologist) dated 31 August 2023 and email correspondence 4. O6- Letter from NSW Police confirming medical discharge 5. O7- Hospital discharge summary and photographs 6. O8- Confirmation of section 11 PRNA order for protective custody 7. O9- Blood test (carbohydrate deficient transferrin) results dated 9 February 2023, 8 June 2023 and 21 August 2023 8. O10- Urine drug screen results dated 17 January 2023, 9 February 2023, 28 March 2023, 8 June 2023 and 21 August 2023 9. O11- Correspondence from South Coast Private Hospital confirming residential rehabilitation and outpatient programs 10. O12- Letters from Andrea Brewer (Baptist Care) dated 10 July 2023 and 14 November 2023 confirming enrolment and participation in 20 weeks Men's Behavioural Change Program 11. O13- Information regarding Men's Behavioural Change Program 12. O14- Statement of the offender dated 13 September 2023 13. O15- Statement of Ms Freckelton dated 12 September 2023 14. O16- Letter from Gary and Gail Sorensen 15. O17- Letter from family members 16. O18- Letter from Mr Calverley 17. O19- Letter from Ms Madden

[17]

KC stated that the offender came into her life when she was aged 11. The offender was meant to be a father figure and she expected to feel safe and loved. Whilst the offending had affected many people, KC wished to acknowledge the pain, trauma and devastation of her grandparents who took them in to keep them safe. They had lost their daughter, being KC's mother, four months after the offences came to light. She again acknowledged the efforts of the grandparents in supporting her through what was clearly a difficult time. She was particularly impacted by the fact that her grandfather passed away at a time when he was making plans to make their property safer. She was devastated and heartbroken that her grandfather spent the last years of his life in constant panic because of the offenders actions. The pain her family has endured directly impacted her as she felt guilt knowing that they were stressed and hurting. This greatly impacted on her own mental health.
The incident in which she found the offender filming outside her window had a profound impact upon her; so much so that she wanted to die. She felt exhausted for years of her life, trying not to aggravate the offender or have a reason for him to sexualise her. She timed her showers around when the offender would not be home. She hung towels around the shower because she was paranoid that the offender would be watching her. She wore oversized clothing as much as possible and stayed in her room. She felt that she was being continually watched by the offender, given his gratuitous comments. For months after discovering the camera, KC was physically, emotionally, socially and psychologically unwell. She was constantly sick, unable to sleep or eat, constantly fatigued, and unable to function. She experienced pain all over her body that was not capable of being diagnosed.
She continued to suffer with severe anxiety, panic attacks, brain fog and disassociation daily. She did not feel safe in her own home or in that of her grandparents. KC described becoming overwhelmed and consumed in reliving the events that occurred and on occasions had gone into a mental breakdown following which she felt worthless, defeated and numb. Often KC would feel paralysed from fear, would not be able to move from her bed for hours, even when she desperately needed to go to the toilet. She felt alone and worthless when experiencing her fear.
The offending had such an impact that after it was discovered KC refused to sleep or shower in her house for almost a year. She undertook treatment with the therapist and was administered a higher dose of antidepressants and valium to avoid the panic attacks and assist with sleep. She continued to experience crippling sleep paralysis and panic attacks on an almost daily basis. She would also experience shaking and hives on her face as well as trembling, chest pain, pain down her legs, difficulty breathing and blacking out. Her reaction was such that she suffered constant nausea and stomach issues and in more recent times was dealing with additional health problems which required medication. She experienced flashbacks on a daily basis of the videos that she watched of herself and the offenders face. At times she disassociates. KC described as "disturbing" the fact that the offender would film her and thereafter act normally as if nothing had happened. She struggles to connect with men on any level. KC stated: - "you took my dignity, my health, my sense of self, my sense of worth."
She described watching the videos filmed by the offender as being a humiliating and extremely traumatic experience.

[19]

Dr Antony Henderson

The offender was assessed by Dr Henderson for the purposes of preparing a report on 24 August 2023. The report, in its original form, has been significantly redacted following an agreement between the Crown and the offender's legal representatives. Dr Henderson was advised of the reductions and asked to confirm whether he maintained the opinions contained in his report if he was to ignore the redacted parts. Dr Henderson maintained the opinion contained in the report, despite the reductions, particularly those in relation to the offenders' mental impairments and the extent to which they contributed to the offending behaviour. The Court expressed its concerns, in the course of submissions, with this process, and the difficulty with analysing the report in the context of those reductions. This issue will be considered further below.
The offender told Dr Henderson that in his employment with New South Wales Police he had been repeatedly exposed to traumatic deaths, threats to his life, had attended numerous motor vehicle accidents, shootings and completed suicides, where he was exposed to disfigured bodies. He reported developing symptoms consistent with post-traumatic stress disorder from late 2015, becoming increasingly anxious and irritable. He felt on edge, was easily startled, became fearful of threat and struggled to relax. He experienced intrusive recollections or flashbacks of past work-related incidences, and his memory would be triggered by various events or experiences.
He also reported symptoms of depression for some years prior to his offending with a persistently low mood state, struggling to experience pleasure, feelings of hopelessness, sense of foreshortened future and suicidal ideations including hanging himself. He attempted to self-medicating his PTSD and depressive symptoms with excessive use of alcohol, although he established a degree of tolerance to it. He claimed to have been consuming 15 units of alcohol on a daily basis throughout the course of his offending behaviour.
The offender apparently disclosed difficulties with his mental health to a New South Wales Police Human's Resources Officer in late 2018. He commenced long service leave and an annual leave period of 12 weeks. However, he became increasingly agitated, and on 27 December 2018 was diagnosed with PTSD and depression, for which she was prescribed medication and referred to a clinical psychologist.
The offender allegedly ceased antidepressant medication and reviews by his psychologist as he felt moderately improved with treatment, whilst continuing to use alcohol excessively. As a consequence, he experienced a further deterioration in his mental health.
The offender claimed that he had disclosed his difficulties to a friend in early 2019, who offered him cocaine, which immediately lifted his mood. He reported to have commenced using cocaine on a twice weekly basis, and increased use to an almost daily basis over the 12 months preceding and through the course of the offending behaviour.
He claimed to being on a state of denial in relation to his mental health difficulties. The offender acknowledged that his attempts to capture sexualised images of the complainants was motivated by sexual arousal which he claimed was increased at the time. He did not consider the risk or implications of being caught at the time.
The offender claimed that he was unable to access cocaine during the COVID lockdown. The recorded history in this respect has been redacted to the extent that the sentence following this history appears only in part. However, it is apparent that the offender told Dr Henderson that due to his inability to access cocaine during the lockdown he ceased placing his phone under the bathroom door. However, the offender claimed that he resumed cocaine use when it was once again available after the easing of the lockdown restrictions and his reported libido increased once again. He then began "peering through the bedroom window and placed a video camera in the air conditioning system". When asked whether he considered the consequences of his actions, the offender claimed to not know what he was thinking and that he did not consider the risk if he got caught or how long it was. He gave no consideration to the impact on the complainants and admitted that he had lost some of their trust.
Dr Henderson was told that the offenders' symptoms of PTSD and depression significantly deteriorated whilst in custody, leading to an attempted suicide in August 2022 by cutting his left arm with a razor blade.
Since being released on bail the offender had engaged in various programs and had abstained from alcohol and illicit drug use. He spent periods as an inpatient in hospital to treat his psychiatric condition and had also undertaken various rehabilitative courses. As a consequence, he claimed that his PTSD and depression had significantly improved.
The offender reported an unremarkable developmental history, having been raised in a loving and supportive household. The offender claimed that "his voyeuristic urges appear to be restricted to the onset of his mental disorder and use of illicit stimulants." On mental state examination the offender reported experiencing some ongoing residual symptoms consistent with PTSD and depression.
The offender was assessed at a low risk of engaging in further offending behaviour in circumstances where the risk factors related to his mental health and alcohol and cocaine use. Further the offenders limited risk factors and preparedness to engage in psychiatric and psychological treatment similarly suggested a low risk of engaging in further offending behaviour. Following a review of other clinical and corrective services records Dr Henderson diagnosed the offender as suffering post-traumatic stress disorder, major depressive disorder as well as alcohol and stimulant use disorder (in sustained remission).
The diagnosis of PTSD arose from the offenders' experiences in his policing career. The diagnosis of major depressive disorder was made on the basis that he had experienced prolonged episodes of depressed mood, difficulty experiencing pleasures, low self-esteem, sense of worthlessness, anxiety, insomnia and the social withdrawal, suicidal ideation and suicide attempt. The diagnosis of alcohol stimulant use disorder was made on the basis of the offender's use of excessive quantities of alcohol and cocaine with evidence of tolerance and impaired mental health functioning. Dr Henderson considered this was an attempt to self-medicate for his PTSD and depressive symptoms.
Dr Henderson noted that PTSD was associated with altered brain functioning and a combination of disrupted information processing, dysregulated mood and emotions, and impulse control problems, with a tendency to engage in behaviour without cognitive deliberation and the neglect of long-term consequences, which gave rise to an increased risk of offending behaviour. The related impulsivity, in conjunction with attempts to self-medicate the negative affective experiences associated with this disorder, gave rise to a significantly increased risk of alcohol and cocaine use. There was also an established relationship between depression and impulsivity, and an impaired ability and nihilistic indifference to the negative consequences of behaviour and offending conduct.
Dr Henderson also noted that the use of cocaine had been associated with impairment in self-control, disinhibition and increase in sexual desire, which could result in risky sexual behaviours during use. Dr Henderson considered that the offenders mental health impairments, particularly PTSD and major depressive disorder, together with some alcohol and cocaine, had compromised the offender's judgement, self-control, reasoning capacity and ability to consider the wrongfulness and consequences of his behaviour. Further, the libido enhancing effects of stimulant drug use was likely to have contributed to the offending.
The offender demonstrated significant insight into his mental health impairments and the need for ongoing treatment. Dr Henderson expressed concern of the impact of a custodial disposition given his status as a protected inmate with the likelihood he would be held in isolation. A custodial sentence was likely to "represent a significant burden" on the offender. In circumstances where treatment was more readily available in the community, Dr Henderson considered that the matter may be more appropriate for a non-custodial sentence.

[20]

Report of Jocelyn Medland

The offender was referred to Ms Medland by his general practitioner on 25 January 2022, only a matter of weeks after the offender was first spoken to by investigating police. The offender provided a history of having been medically discharged from the New South Wales Police 18 months earlier, and whilst consulting a psychiatrist, had ceased prescription medications. The offender provided a history of the previous two months that "little things have presented problems". He had spent time in North Queensland staying at his father's property, although when he returned to Sydney he became easily agitated. On returning home he told his partner that he could not stay there and that he jumped in his car and drove north. He spoke to his father on the phone, having had "very dark thoughts", and his father invited him to his property. He had since consulted the referring general practitioner. He reported the significant stressors that had led to the development his condition was his medical discharge from New South Wales Police, having been repeatedly exposed to traumatic events as well as mood problems. Significantly, the offender provided no history to the psychologist of the significant events that occurred in the weeks preceding his initial review, being the discovery of the camera installed by the offender in the complainant's room, the police investigation and the service of an apprehended domestic violence order. The offender would clearly have been aware of the fact that his offending behaviour had been uncovered and that he was likely facing serious criminal charges.
The offender presented with a depressed irritable and at times overwhelmed mood, with ruminations featured as part of his thought content. Risk of self-harm was assessed as mild to moderate and insight/judgement was guarded. He reported disturbed sleep patterns although this was improving with medication. Energy levels were reported as less than usual. Further testing reflected the mildly pessimistic thinking and anxiety which the offender had reported. PTSD symptoms were significant as was the offenders results on the substance abuse scale. The offender's results were consistent with a diagnosis of post-traumatic stress disorder, chronic.

[26]

Statement of the offender

The offender's unsworn statement has been significantly redacted following the adjourned sentence hearing. The offender referred to being raised in a loving and supportive family with one sister and two stepbrothers. The offender qualified as a greenkeeper before entering the police force in 2009 until being medically discharged in April 2021. The offender referred to a previous marriage of 12 months resulting in the birth of his eldest daughter. The offender referred to a second marriage, although 2 paragraphs have been redacted. The next paragraph refers to having four children ranging in ages from 12 to 22.
The offender commenced a relationship with the complainant's mother in around 2013, and they commenced living together, with the complainant's and their younger brother, in 2014. The offender claimed that his mental health began to deteriorate from around 2016. The offender referred in detail to various experiences whilst in the New South Wales Police including attending suicides, fatal motor vehicle accidents, some of which became personal to him. Towards the end of his career he was struggling to cope and experienced sleep disturbance, irritability and short temperedness, particularly with his family. In September 2009 he applied for 3 months long service leave, having reached "breaking point". He consulted a general practitioner and was referred to a psychologist, whom he saw regularly, and also commenced antidepressant medication. He claimed to have used drugs and alcohol as a means of coping with his persistent PTSD symptoms. He was using cocaine in the morning to pick himself up from drinking the night before.
Following service of an apprehended domestic violence order at the airport the offender moved to his father's farm in North Queensland, where he commenced treatment with a psychologist to address his mental health concerns. In June 2022, when returning to Sydney to attend his grandmother's funeral, he was arrested, charged and taken into custody, having been refused bail. The offender described his period in custody as "hell", having been placed in segregation as a former police officer. Despite advising correctional officers of his mental health, he was not provided with his prescription medication. As a consequence, his mental health deteriorated, exacerbated by the lack of contact with family. The offender confirmed that on 21 August 2022 he attempted suicide whilst in custody describing the feeling of "tremendous guilt and shame" for the offences he had committed. As the medical records attest, he underwent surgery and remained an inpatient at Westmead Hospital for a period of 7 days. He was ultimately returned to the medical centre of the correctional complex before being released on strict bail conditions on 21 September 2022. The offender confirmed that whilst on bail he was undergoing regular treatment with a psychologist and psychiatrist. The offender has completed 3 inpatient and 2 outpatient programs. He completed various programs relating to anxiety, PTSD and men's behavioural change programs.
The offender expressed "guilt and shame" for what he had done to the complainants, acknowledging that he had betrayed their trust and caused them trauma. He claimed at the time to have been "morally and spiritually bankrupt". He acknowledged the trauma he had also caused the complainant's mother and younger brother. The offender stated that he had undertaken a significant amount of work since his release to address the issues which led to his offending, including periods of inpatient care. He considered that being placed back in custody would severely impede his mental health recovery.
The offender described his bail conditions as "challenging".
In respect to his future, the offender noted that whilst an inpatient he had been introduced to a program called the Veteran Surf Project for ADF personnel and first responders who had suffered PTSD. The offender had been involved in the program, conducted on a South Coast beach, for a period of approximately 9 months. He described his involvement in the program as including support for others who were suffering PTSD. He has been asked to be involved in a University study of the program. He has been offered accommodation with a cousin who lives in the South Coast to enable him to be further involved in the program. He was also hopeful of gaining casual employment in his previous trade.

[32]

Crown submissions

The Crown noted, by reference to the victim impact statements, that the offending had caused substantial harm to both complainants.
For approximately 10 years the offender was in a de facto relationship with the complainants mother and from 2016 the offender lived in the family home. There was a substantial age difference between the offender and the complainants, with one of the complainants being between the ages of 17 and 18 at the time of the offences. The offences were committed in the family home with a significant number of them whilst the complainants were behind a closed door in their home, whilst undressed and in the process of showering. The Crown noted, by reference to relevant authorities, an aggravating factor was that the offence was committed in the home of the complainant. The Crown contended that the extensive period of time over which the offending occurred puts the individual sentences into a proper context, which indicated its objective seriousness. It was contended that the repetition of the acts indicated the offender was determined to obtain many intimate images of each of the complainants, indicating his preparedness to spend considerable time and effort in obtaining those recordings. The offending covered a period of almost 2 years from March 2020 to January 2022. Far from being a spontaneous event, the offender went to considerable lengths to make recordings of each of the complainant's whilst showering and in the privacy of their own bedroom.
The offender's attempt to seek out a perpetrator, when filming outside KC's bedroom, demonstrated a deal of deceit, and was evidence that the offender knew his actions were wrong. The Crown contended that the circumstances in which he resorted to installing and using hidden cameras in the air-conditioning vents, when caught filming from outside her window, demonstrated a determination to continue to attempt to record intimate images of KC, knowing it was wrong. Further, his conduct at the airport when confronted by police in relation to his phone again demonstrated the offender's full knowledge of his unlawful conduct.
He was motivated by a desire for sexual gratification towards the young complainants, supported by his earlier sexualised comments to both complainants. The Crown contended that the relevant offences were in the notional middle range of objective seriousness for an offence of this type. A significant number of the offences, including those on the Form 1's, were committed whilst the offender was a serving police officer. The Crown referred to various authorities in this respect, contending that this circumstance aggravated the offending.
The Crown noted that the offences for which the offender is to be sentenced were domestic violence offences as defined in the Crimes (Domestic and Personal Violence) Act 2007. The Crown referred to the various statutory considerations in relation to such offences as provided in the Crimes (Sentencing Procedure) Act 1999 (CSPA).
The Crown contended that the domestic relationship between the offender and the two complainants was a relevant matter in assessing the seriousness of the offending in circumstances where the offences were committed by a member of the household. The Crown referred to the relevant principles when the Court takes into account matters on a Form 1. The Crown contends that the sentence to be imposed in relation to sequences 27 and 28, with each offence having 10 additional offences on a Form 1, should be increased, to address the need for significant personal deterrence, the need for punishment and denunciation.
It was contended that accumulation was required in order to address the separate offending acts, committed on different days and upon two different complainants. It was submitted that the accumulation was appropriate to reflect the discrete offending arising from each of the sentences. It was contended that the section 5 threshold had been crossed and that a sentence of full-time imprisonment was required.
In oral submissions the Crown dealt with the circumstances of the offender's bail conditions and the extent to which they would be taken into account in determining whether they constituted quasi-custody. Whilst the Crown acknowledged the maximum penalty was 3 years imprisonment, the Crown contended that the Court would have regard to the extended time over which the offending occurred, that there were 2 complainants, and that the offending occurred in the complainants' home. The recordings were serious examples of an offence of this type and there were multiple offences in relation to 2 complainants. The Crown referred to various authorities as to the relevance of protective custody in the event the offender was sentenced to a term of full-time imprisonment.

[33]

Offender's submissions

It was noted by way of background that the offender was medically discharged from New South Wales Police on 1 April 2021 on account of work-related mental health issues after a policing career of 11 years. He had a limited criminal history, being only one offence of assault against the complainant's mother, which it is contended is of limited relevance.
The maximum penalty of 3 years is of some significance in circumstances where it represents a sentencing guidepost. It was conceded that the offending was objectively serious, however there were powerful mitigating factors including the degree of causality between the offenders deteriorating mental health, substance abuse and the offending, his lack of prior convictions, and the substantial progress made in terms of rehabilitation.
In assessing the objective seriousness, the offender noted relevant factors as follows: - 1. The offending occurred over a period of time; 2. KC was an adult at all times whilst SC was 17 for a number of sequences; 3. An intimate image for the purposes of the relevant section encompasses a wide range of conduct, up to and including sexual activity, and that that this offending involved nudity whilst alone; 4. The offending involved a substantial invasion of privacy where the victims were entitled to feel safe in the sanctity of the bathroom or bedroom of their home. Further, there was an element of abuse of trust with the qualification that this must not be double counted; 5. The offending in relation to the bathroom and KC's bedroom was impulsive in nature, although sequence 52, the hiding of a camera in the ceiling vent, involved an element of planning; 6. The offending was motivated by sexual interest, although to be seen in the context of the offenders prevailing mental health, including the libido enhancing effects of the cocaine use, which Dr Henderson had considered was a factor contributing to the offending; 7. Whilst not seeking to place the offending on any hypothetical scale of seriousness, it was conceded that the offending was an objectively serious example of the offence in question in light of these issues.
The submissions focused on the relevant subjective considerations, including his diagnosis of PTSD arising from his work as a police officer, and the opinion of Dr Henderson on causation as between the relevant conditions and his offending. It was noted that there was no evidence of any sexually inappropriate behaviour prior to 2018. It was therefore contended that there would be a finding of a causal nexus between the offenders prevailing mental health and his offending, in the nature of a combination of impairments to judgement and reasoning, and impulsivity. It was contended that in the circumstances De La Rosa factors were relevant, and the offender's moral culpability would be reduced. In any event, it was contended that the offender was not an ideal candidate for the full measure of general and specific deterrence in circumstances where the offender had achieved substantial rehabilitation in the ensuing period.
Reference was made to the onerous custodial conditions to which the offender was subjected, resulting in a significant deterioration in his mental health. This was consistent with the records of corrective services, including a request that the offenders PRNA order be extended, given the nature of the charges and his status as a former serving police officer. This was granted, and the offender was in isolation, being a significant imposition in terms of the custodial conditions. The submissions highlighted the offender's progress with his own rehabilitation since his release, and this would be considered a matter of some importance in the sentencing exercise. The evidence supports the offenders claim of abstinence from drugs and alcohol, and he has complied with all relevant treatment directions.
The offender contended that his onerous bail conditions, and his inpatient admission to hospital, equated to quasi custody. Reference was made to various authorities in this respect noting a range of between 50% to 75% of the actual time spent as an inpatient had been adopted. Emphasis was again on the offender's prospects of rehabilitation in the context of his inpatient admissions. It was also contended that the offender's onerous bail conditions amounted to quasi custody.
It was contended, by reference to the report of Dr Henderson, that the offender's prospects of rehabilitation were excellent, further galvanised by the offender's early plea. Further, the Court was urged to accept the opinion of Dr Henderson that the offender had a very low risk of engaging in further offending behaviour. Further, it was contended that the offender was genuinely remorseful and had appropriate insight into the wrongfulness of his conduct.
It was conceded that the section 5 threshold had likely been crossed given the number of offences over a significant period, and that the offending involved two complainants. It was noted that the Form 1 matters did not and could not be used to elevate the objective seriousness of the offences charged but rather impacted on the sentencing process by way of potentially the greater need for personal deterrence and retribution. It was contended that the totality principle had a significant role to play in the context of the 6 charges and Form 1 offences for a relatively low maximum penalty. It was further observed, by reference to sentencing statistics, that this offence was typically dealt with summarily, with a reference to only one case in this Court. Reference was also made to the sentencing statistics from the Local Court, although it was acknowledged that there were limitations on such material for comparative purposes.
It was ultimately contended that a custodial sentence in excess of 3 years was "unlikely", and that the pre-sentence custody could be dealt with in the manner identified by Simpson AJA in Mandranis v R [2021] NSWCCA 97. It was the offender's ultimate submission that an intensive correction order required "serious consideration", with reference to the judgment of Gleeson JA in Zheng v R [2023] NSWCCA 64 where the effect of the decision in Stanley v DPP [2023] HCA 3 was summarised. Emphasis was placed on the fact that while community safety was not the sole consideration in the decision to make, or refuse to make, an intensive correction order, it would usually have a decisive effect unless the evidence was inconclusive. It was submitted that where a conclusion was reached the community safety could be sufficiently assuaged by or during the imposition of an intensive corrections order, ordinarily that would be decisive on the question of the imposition or otherwise of an intensive correction order. It was also contended that any further custodial period may well be "crushing", and that the offender's risk of re-engaging in similar conduct was very low, by reference to the report of Dr Henderson.
In oral submissions Senior Counsel for the offender contended that the objective facts demonstrated the offender was exposed to trauma as a serving police officer which led to a deterioration in his psychological condition such that he was medically retired and that he thereafter embarked on a course of conduct that led to the present offences. When considering the expert evidence, it was necessary to consider the reliability of the underlying facts upon which any such opinion was premised. It was again contended that a mitigating factor was that the offender was suffering from a mental illness at the time of his offending which reduced his moral culpability.
It was conceded that the Court was entitled to consider that, given the offenders earlier interactions with one of the complainant's, the offender was aware of that complainant's vulnerability at the time of commission of the offences. It was again conceded that each of the charges were serious examples of the offending charged which would result in the imposition of a term of imprisonment. However, given the maximum penalty, which operates by way of a sentencing guidepost, this was a matter which the Court would need to take into account.
The Court was urged to find a link between the offending conduct and his PTSD/depression. The mental health issues moderated the need for denunciation. Emphasis was again placed upon the offender's time in rehabilitation, and the strict bail conditions constituting quasi custody when considering the time served. Careful consideration needed to be given to issues of accumulation, concurrency and totality. It was accepted that those offences with the Form 1 were more serious as well as the offence involving the offender installing the hidden camera in the bedroom.
Further submissions were made in respect to the relevant considerations for an intensive correction order and that community safety was best served through the offender having ongoing access to the rehabilitation opportunities in the community. It was contended a finding of special circumstances would be made in the event it became necessary to stipulate a non-parole period.

[34]

Consideration

In determining the appropriate sentence, I am mindful that I may not take facts into account in a way that is adverse to the offender unless those facts have been established beyond reasonable doubt. Further, that the offender bears the burden of proving on the balance of probabilities matters which are submitted in his favour: R v Olbrich (1999) 199 CLR 270; Filippou v R (2015) 89 ALJR 996; [2015] HCA 29.
The offender is to be sentenced in respect to five offences of intentionally record intimate image without consent and one offence of attempt. The offending was in respect to two complainant's and occurred over a period of almost two years. Four of the six counts involved the offender filming the complainant's whilst having a shower, exposing their genital and anal area and breasts. A further offence involved the offender filming the complainant whilst in the privacy of her own bedroom, which again depicted her genital and anal area.
The offender had been in a de facto relationship with the complainants' mother for a period of about 8 years when the first offences were committed and the offender had been living in the same home as the complainants and their younger brother for a period of 4 years. The offending constituted a most egregious abuse of trust in circumstances where the offending was enabled by the fact that the offender was occupying the same home as the complainants as the de facto partner of their mother.
As Bathurst CJ in Johnson v R [2016] NSWCCA 286 at [49] observed: - "The reason that the fact that the offence was committed in the victim's homes was said to be an aggravating factor was because of his or her entitlement to feel secure in the home."
In the circumstances of this case, not only were the complainant's entitled to feel secure in their own home, but even more so, were entitled to expect that whilst in their bathroom or bedroom their personal privacy would be respected. The offences amount to the most fundamental breach of that privacy. Self-evidently there was a significant age difference between the offender and the complainants, with SC being only 17 years old when the offending first commenced.
I reject the offender's submission that the offending in relation to the bathroom and both SC and KC's bedroom was impulsive in nature. The first offence was committed on 12 March 2020 against each of the complainants. The agreed facts establish that the offender filmed the two complainants in the shower a total of nine times thereafter over a period of approximately one month (25 April 2020 - 26 May 2020). The offender engaged in further filming of both complainants on 12 occasions over the ensuing 7 months. The offence of filming through the bedroom window involved the offender, being aware that KC had entered her bedroom following a shower, walking outside to the front of the house and holding his mobile phone up to a small gap in the window, before filming her for a period of over 2 minutes.
As the Crown correctly submitted, this was not the case of an offender merely taking advantage of an open bathroom door, or for that matter a window, and making a recording as he quickly passed by. It involved the offender engaging in deliberate conduct on repeated occasions over a relatively lengthy period.
The offending was clearly motivated by the offender's sexual interest and a desire for sexual gratification directed towards both complainants. The offender contends that a finding in this respect must be moderated in light of the opinion of Dr Henderson as to the libido enhancing effects of his cocaine use. For the reasons traversed below, I do not accept the submission that the offending was contributed in part by the effects of his cocaine use.
As the complainants' victim impact statements demonstrate, the offending has caused substantial harm to each of the complainants. This is not only demonstrated by the content of their respective statements, but also the raw emotion displayed by both during their delivery. Indeed, as Senior Counsel for the offender observed in the course of submissions: - "We've all listened to those poor young women today. You cannot help but understand that this has been severely damaging to them…"
In respect to KC, the offender, at the time the offending commenced, was aware of the complainant's vulnerability, following sexualised comments made by the offender repeatedly in 2018, to the point where KC attempted to make herself appear uglier around home to avoid such comments being made. As the agreed facts demonstrate, KC challenged the offender, informing him of the impact those comments were having upon her. As Senior Counsel for the offender quite fairly and properly conceded: - "We can't get over the fact that these comments that are referred to in the facts were disturbing comments, and they were disturbing the victims, and one of them drew her concerns to him, and yet he still continued to do what he did."
As the agreed facts further demonstrate, having been caught filming through her bedroom window in December 2021, KC, when confronting the offender, was crying uncontrollably and having a panic attack. Despite this clear demonstration of the harm being inflicted on KC by reason of the offenders offending, within days the offender had installed a security camera in the air-conditioning vent of KC's room, and thereafter proceeded to record KC in the bedroom.
Whilst it must be acknowledged that an intimate image for the purposes of section 91P contemplates a wide range of conduct, I am satisfied that each of the offences constituted objectively serious examples of the relevant offence.
It is not without significance that the offender, when confronted on two separate occasions, not only denied his offending, but went to considerable lengths to support his denials. When confronted with an allegation of filming KC through her bedroom window, the offender not only denied he was responsible, but drove around the nearby streets to seek to identify the alleged perpetrator, even to the extent of identifying a male sitting in a vehicle, whose registration was recorded. Within days the offender was installing security cameras in the home, knowing full well he was the offender.
When the offending was discovered in January 2022 the offender again denied being the perpetrator when challenged by police. The offender went to the trouble of replacing his mobile phone, upon which the images were recorded, whilst interstate. When confronted by police upon his return to Sydney, the offender lied to police when informing them that his old phone had been left in Queensland. It was only when the offender was told that his bag would be searched that he ultimately admitted he had retained that phone, stored in his luggage.
In respect to Sequence 27 and Sequence 28, there are an additional 10 Counts on a Form 1. Whilst the inclusion of offences on a Form 1 do not of themselves increase the assessment of objective seriousness of the substantive offence, the facts and circumstances of the Form 1 offences might be relevant to the assessment in that, for example, the circumstances of the Form 1 offences might place the substantive offence in context: Director of Public Prosecutions (NSW) v TH [2023) NSWCCA 81 at [24] per Beech-Jones CJ at CL (as his Honour then was); LN v R [ 2020] NSWCCA 131.
In respect to the Sequences to which the Form 1 attaches, it is apparent that these two offences occurred in the context of an identical and repeated course of conduct as the primary offences over a period of 9 months.
Reference has already been made to the procedural history of the sentence which was first listed for hearing on 14 September, the offender having served his evidence, including substantive subjective material, in the days prior to the hearing. The sentence hearing was adjourned to enable the Crown to consider its position, including verification of facts contained in unsworn statements (including a statement of the offender) as well as histories provided to the medical experts. When the matter returned for hearing the offender relied upon the material reviewed above, including redacted medical reports and unsworn statements. The material redacted from the expert reports related to the history provided by the offender to those experts. The statements of the offender and his mother contained redacted material.
The experts unquestionably maintained the opinions contained in their primary reports, having been informed of the relevant redactions. No enquires were made by the experts as to the reason for the relevant reductions nor whether those reductions called into question the reliability of the history provided by the offender, particularly the history which was not otherwise independently corroborated.
The observations of Wilson J in Imbornone v R [2017] NSWCCA 144 at [57] helpfully set out a number of principles to be applied in respect to untested statements made by an offender as follows: "Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58]-[59]. Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381 at [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24]-[25]. It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33]. If an offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19]. Whilst evidence in an affidavit from an offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, "to treat this evidence with anything but scepticism represents a triumph of hope over experience": R v Harrison [2001] NSWCCA 79 at [44]."
However I am also mindful of the observations of Allsopp (with whom Price J agreed) in Devaney v R [2012] NSWCCA 285 at [88] as follows "It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition. Further, the submissions of the applicant about her Honour's findings concerning his response to medication have force."
The evidence establishes that the offender was medically retired effective 18 March 2021. I am satisfied that the medical retirement was as a consequence of the offender suffering Post-Traumatic Stress Disorder arising from his employment. The preponderance of evidence, including the unredacted statements, establishes that the offender was also suffering depression, no doubt in part related to his PTSD condition. I accept the opinion of Dr Henderson that the offender's PTSD and major depressive disorder was likely to have been associated with poor self-regulation, emotional instability, impulsivity and a reduced ability to consider the consequences of his behaviour at the time of the offending. I accept that there was likely to have been an element of self-medication through alcohol and cocaine which was likely to have further compromised the offender's judgement, self-control, reasoning capacity and ability to consider the wrongfulness and consequences of his behaviour.
As to the effect of a mental condition reducing an offender's moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed: "[74] A reduction in moral culpability results where an offender's mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending. [75] The sentencing task should not be approached in "an unduly technical or restrictive way": see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence. [76] While a sentencing Judge should not become preoccupied with the issue of "causation" as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing)." (Emphasis added).
I am satisfied that the offenders mental health impairments reduce the offender's moral culpability and reduce the significance of punishment and deterrence.
However, this finding must be moderated given a number of features of the circumstances of the offending. Dr Henderson was of the opinion that the libido enhancing effects of the offender's cocaine use was likely to have contributed to his offending. This was in the context of a history provided by the offender to Dr Henderson that he commenced using cocaine in early 2019 resulting in an increase in his sexual arousal. It is apparent the offender sought to, at least in part, justify his offending behaviour by reason of his cocaine use. This observation is reinforced by the history provided to Dr Henderson that he was unable to access cocaine during the COVID-19 lockdown.
This history is contained in a paragraph which has been redacted although a reasonable inference from what remains of the paragraph is that as a consequence of his inability to access cocaine he ceased placing his phone camera under the bathroom door. The offender told Dr Henderson that he resumed cocaine use when it became available with the easing of the COVID-19 lockdown restrictions and accordingly his libido again increased and he began peering through the bedroom window and placed a video camera in the air-conditioning system. There are a number of difficulties with this history. First, according to the agreed facts the offender was making inappropriate and unwanted sexualised comments to KC before he allegedly commenced using cocaine. Second, the offenders claim that he ceased his offending behaviour when he was unable to access cocaine by reason of the COVID-19 lockdown is inconsistent with publicly known facts. The COVID-19 lockdown orders, restricting gatherings and activities of people in New South Wales commenced in March 2020 with stringent stay-at-home orders being in place by the end of that month, and those orders remained in place for some months. However, the agreed facts establish that the offender was recording both complainants whilst naked in the shower repeatedly in April and May of 2020, during the period of the stringent lockdown orders.
Whilst I accept the opinion of Dr Henderson as to the role the mental health impairments played in the offending, including a reduced ability to consider the consequences of his behaviour, this must also be considered in the context of two events about which there is no issue. First, following the unwanted sexualised comments made by the offender, in November 2019 KC confronted the offender and told him of the impact those comments were having upon her. The offender apologised to KC which must be seen as at least some acknowledgement by the offender of the wrongfulness of his actions and an acknowledgement of the impact they were having on KC. The relevant offending then commenced early 2020, within months of this exchange. Second, the agreed facts note that when the offender was challenged by KC of filming her through a bedroom window in December 2021 she was crying uncontrollably and experiencing a panic attack. Despite KC's presentation within days of this confrontation, the offender installed the camera inside KC's bedroom and went to the trouble of checking the angle of the camera so that it sufficiently covered the area of KC's bedroom, and her activities, for his own sexual ratification.
In considering the purposes of sentencing contained in s 3A of the CSPA I accept that punishment and deterrence have a lesser role to play in determining the appropriate sentence although they cannot be ignored altogether.
I accept that the offender is otherwise of good character with only one previous conviction for assault arising from the offender's relationship with the complainants' mother. Given the isolated nature of this offence and noting that the offender was not convicted on sentence I do not draw any adverse inference against the offender arising from this offence. I accept that otherwise the offender was previously a law-abiding member of the community who served as a police officer for a period exceeding 10 years.
The extraordinary efforts of the offender to address the mental health issues which played a role in his offending behaviour must be acknowledged and commended. As the records demonstrate the offender has not only engaged in therapy with health professionals, but he has also undergone several voluntary inpatient admissions to a mental health facility. The offender has also undertaken various programs to address his mental health issues and is now actively working with others in the surf program on the South Coast. I am satisfied that the offender has good prospects of rehabilitation, and I am mindful that any sentence imposed should take into account his ongoing rehabilitation. I am also satisfied the offender is remorseful and recognises the considerable harm done to the complainants' and their family.
However, despite the offender's mental health impairments to which reference has already been made, the sentence must make the offender accountable for his actions and such conduct must still be denounced. The recording of naked young women without their knowledge is abhorrent enough must be denounced in the strongest terms. As previously observed, this behaviour is even more egregious when done in the privacy of their own home whilst showering, and in their bedroom, where they were entitled to feel safe and have their privacy respected. In considering an appropriate sentence the Court must also recognise the very significant harm done to both complainants.
As previously noted, I accept the offender has shown considerable remorse and contrition in respect to his offending and has clearly gained insight of the contribution of his mental health impairment in his offending. It is in this context that rehabilitation is considered.
In determining an appropriate sentence account has been taken of the hardships experienced by the offender whilst in custody including his segregation and being denied medication and therapy for his mental health impairments, resulting in his suicide attempt. This resulted in the need for surgery and has left the offender with permanent scarring.
In respect to two of the offences, the offender asked that the Court take into account a further 10 offences on a Form 1. In Re Attorney General's Application under s 37 of the Crime (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002), Spigelman J at [42] observe the following: - "The position, in my opinion, is that, although a Court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of other offences will frequently indicate, or to be given greater weight by reason of the course of conduct which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences."
Findings have already been made as to the reduced role of personal deterrence in the sentencing process.
In R v JRD [2007] NSWCCA 55 Howie J considered the significance of taking into account other charged offences as follows: - "[29] … Clearly it may be a fact or circumstance relevant to the commission of a particular offence that, at or about the time when that offence was committed, the offender committed other offences. It would be relevant, for example, to a finding whether the particular offence was an isolated 'fall from grace' or whether it was merely an instance of a course of criminal conduct in which the offender was involved at the relevant time. [30] So in sentencing the respondent for any one offence it was highly relevant that all of the offences and the matters on the Form 1 were committed in a period of about four months and that each offence represented a different aspect of the respondent's overall criminality in that period."
In Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1 Basten JA (with whom Hulme and Latham JJ agreed) said at [146]: "[…] a course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed."
I am satisfied the section 5 threshold has been crossed and that no penalty other than imprisonment is appropriate.
I am satisfied that this is an appropriate matter for the Court to invoke section 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.
The offender is entitled to a 25% discount on a sentence that would otherwise have been imposed by reason of the offenders early guilty plea.
In respect to Sequence 27, intentionally record intimate image without consent, and taking into account the 10 charges on the Form 1, the appropriate sentence is 1 year 8 months which is to be deducted 25% for the plea of guilty resulting in a sentence of 1 year 3 months.
In respect to Sequence 28, intentionally record intimate image without consent, and taking account the 10 charges on the Form 1, the appropriate sentence is 1 year 8 months from which is to be deducted 25% for the plea of guilty resulting in a sentence of 1 year 3 months.
In respect to Sequence 47, intentionally record intimate image without consent, the appropriate sentence is 1 year 2 months from which is to be deducted 25% for the plea of guilty resulting in a sentence of 10 months.
In respect Sequence 50, intentionally record intimate image without consent, the appropriate sentence is 1 year 2 months from which is to be deducted 25% for the plea of guilty resulting in a sentence of 10 months.
In respect Sequence 51, intentionally record intimate image without consent, the appropriate sentence is 1 year 2 months from which is to be deducted 25% for the plea of guilty resulting in a sentence of 10 months.
In respect to Sequence 52, attempt to intentionally record intimate image without consent, the appropriate sentence is 1 year 6 months from which is to be deducted 25% for the plea of guilty resulting in a sentence of 1 year 1 month.
In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ).
It is also necessary, when determining the aggregate sentence, particularly where the offences for which the offender is to be sentenced occurred over a relatively short period of time, and involved similar criminal conduct, that there is not double punishment. As Bell P (as he then was) observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose punishment that is disproportionate to the overall criminality involved in the offences.
I accept that there must be some degree of concurrency in the aggregate sentence given the offending involved similar conduct, particularly in respect to the offences relating to filming the complainant's whilst in the shower. However, the aggregate sentence must reflect some accumulation given the offences were committed against two complainant's and two of the offences, hiding the camera in the ceiling vent and recording the complainant whilst outside her bedroom, involved a different type of offending. I also take into account in determining the aggregate sentence that the offending occurred over a period of almost 2 years.
In all the circumstances, I find an appropriate aggregate sentence is 3 years.
In circumstances where the offender is sentenced to an aggregate sentence not exceeding 3 years, it is necessary to determine whether the sentence be served in full-time custody or in the community by way of an intensive correction order. Section 66 of the CSPA provides as follows: - "66 Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant."
In Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, Gordon, Edelman, Steward and Gleeson JJ observed: - "[73] The identification of community safety in s 66(1) as the "paramount" consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an intensive correction order, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3). … [75] The assessment required by s 66(2) is not determinative of whether an intensive correction order may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an intensive correction order. Thus, the power to make an intensive correction order requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an intensive correction order will be important in measuring the risk of reoffending."
To assist in determining whether the sentence should be served in full-time custody or in the community by way of an intensive correction order, I referred the offender for an assessment report to assess his suitability for home detention and community service. I note that the offender was previously assessed as unsuitable for community service by reason of his ongoing mental health concerns. I note that the offender had undergone further treatment to address his mental health issues and accordingly it was appropriate that an updated assessment be obtained.
I note the offender's submission as to the time served, bail conditions amounting to quasi custody and inpatient stays in considering the backdating of sentence or length of the intensive correction order. I indicated that I would determine this issue when deciding the manner in which the sentence was to be served.
On 4 April 2024 a Sentencing Assessment Report was prepared to assess the offender's suitability for home detention and community service. The report notes that although willing, the offender has been assessed as unsuitable for community service work due to his incapacity to work arising from ongoing insurance workers compensation medical certificates.
The offender however has been assessed as suitable for a period of home detention in circumstances where he is residing with his mother and stepfather who are prepared to support the offender during any home detention. The offender would be supervised at a level where he will be required to have contact with a Community Corrections Officer every two weeks and will also need to provide schedule activity requests on a weekly basis.
It is the opinion of Dr Henderson that the imposition of a full-time custodial sentence is likely to further impact on the offender's mental health. This will, in part, be due to the limited availability of treatment in custody. This is to be contrasted with the potential availability of ongoing supervised treatment in the community. I further note it is the opinion of Dr Henderson that there is a low risk of engaging in further offending behaviour.
Whilst, in accordance with my earlier remarks on sentence, no sentence other than a term of imprisonment is warranted, the combined effect of ss. 7 and 66 of the CSPA requires the Court, as part of the sentencing process, to determine whether or not to make an order that the term of imprisonment be served by way of an intensive correction order; Stanley at [59]. In this context I have concluded that community safety is best served by way of an intensive correction order.
However, in determining the appropriate conditions of any such order, it is still necessary to consider the purposes of sentencing provided in section 3A of the CSPA, including ensuring the offender is adequately punished, is made accountable for his actions, to denounce his conduct and to recognise the harm done to the victims arising from the serious conduct in which the offender engaged. In the absence of the offender being suitable for community service I consider these purposes will be met by requiring the offender's liberty to be restricted for part of the intensive correction order.
The offender was bail refused in custody from 9 June 2022 until 21 September 2022 being a period of 105 days solely referable to the offences for which he is being sentenced.
The offender has further spent a period of time in residential rehabilitation which is capable of being quantified by way of quasi-custody: Hughes v R [2008] NSWCCA 48 at [38]. The offender also relies upon his restrictive bail conditions which can also be considered a form of quasi-custody.
I consider it appropriate that a total period of five months should be allowed for a combination of presentence custody, period spent in rehabilitation and onerous bail conditions.
In Mandranis, Simpson AJA, having determined an appropriate sentence, and finding the sentence be served by way of an intensive correction order, considered it was appropriate to adjust the term of that order by deduction of the period equivalent to the term of pre-sentence custody. Her Honour, in a further obiter comment, observed that presentence custody could hypothetically be taken into account to reduce a term of imprisonment such that an intensive correction order could be considered.
Garling and N Adams JJ agreed with her Honour, although Adams J expressed some doubt as to the alternative application if the original sentence was in excess of the period for which an offender could qualify for an intensive correction order.
In DG v R [2023] NSWCCA 320, the Court (Wilson, Fagan and Sweeney JJ), having considered the obiter comments of Simpson AJA in Mandranis, held that where an aggregate sentence of more than three years was considered appropriate, and the offender had serve some presentence custody, it would be an impermissible exercise of sentencing discretion to reduce the term to three years or less thereby facilitating an order that the shortened sentence be served by way of an intensive correction order. However, DG does not seek to call into doubt the approach taken by Simpson AJA in Mandranis that the term of an intensive correction order, once it has been determined that the offender qualifies for such an order, could not be adjusted by deducting the period equivalent to the term of presentence custody.
In the circumstances I propose to adopt the approach of Simpson AJA in Mandranis, adjusting the term of the intensive correction order to take account of the period of presentence custody that I have determined.
This will involve a reduction of the aggregate sentence of which I have already determined. The Crown and Counsel for the offender have agreed this is an appropriate matter when dealing with the case of Mandranis.

[35]

ORDERS

I make the following orders: - 1. I impose a sentence of 2 years 7 months. 2. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the sentence is to be served by way of intensive correction order. 3. The standard conditions prescribed by section 73 of the Crimes (Sentencing Procedure) Act 1999 apply, that is: - 1. the offender must not commit any offence; and 2. the offender must submit to the supervision by a Community Corrections Officer. 3. The following additional conditions apply: - 1. the offender is to serve a period of 1 year 10 months of the intensive correction order by way of home detention commencing today 12 April 2024. 2. the offender is to attend on Dr Antony Henderson, Forensic Psychiatrist at a frequency of at least once every month initially in order to monitor compliance with a treatment plan implemented by Dr Henderson. 3. the offender is to comply with any directions of Dr Henderson in regards to treatment including any referral to any other treating psychiatrist that Dr Henderson deems fit. 4. the offender is to remain compliant with all appropriately prescribed medication. 5. the offender is to continue to accept ongoing psychological treatment with Dr Teo Xia, psychologist on a fortnightly basis or otherwise as directed by Dr Xia. 6. the offender is to remain abstinent from all alcohol and illicit substance use to be confirmed by random liver function test monitoring, CDD testing and urine drug screen monitoring at a frequency of once every 6 to 8 weeks or as required by his supervising psychiatrist, general practitioner or psychologist. 7. the offender is to remain an active participant in the PTSD support group and rehabilitation group Veteran Surf Project. 8. in the event the offender relapses in respect to alcohol or illicit drug use he is to accept an admission to a residential drug and alcohol treatment facility. 9. should the offender experience a significant deterioration in his mental health, he is to accept a further admission to an inpatient psychiatric treatment facility. 10. the offender is to waive any clinical rights of confidentiality in order to notify the Court should any breaches of the proposed treatment plan take place. 1. The offender is to immediately report to the Mt Druitt Community Corrections Office. 2. I have been advised by Community Corrections that the home detention orders require mandatory electronic monitoring. To the extent that is not the case, the offender is subject to electronic monitoring for the duration of the home detention order.

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