R v Taylor [2015] ACTSC 43

Supreme Court of the ACT|2015-02-16|Before: Refshauge J

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. Keith Taylor be sentenced to two years imprisonment to commence on 16 February 2015.

3. That the sentence of imprisonment be suspended on 16 August 2015 for two years and six months.

4. That Keith Taylor sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) from 16 August 2015 for two years and six months with the following conditions:

(a) a probation condition that he be under the supervision of the Director General or her delegate for two years, or such lesser period as the person supervising him deems appropriate, and obey all reasonable directions of the person supervising him, including as to ongoing counselling, including for alcohol and drug use.

(b) a condition that he either continue counselling with Anne Macdonald for the period she, in consultation with the person supervising him, considers appropriate, or that he participate in the ACT Corrective Services adult sex offenders program as follows: If he has not already done so, he submit himself for assessment for the ACT Corrective Services adult sex offenders program and, if suitable, he enter and complete that program, or if at the time he has already been admitted to the program, he continue with it and complete the program.

CRIMINAL LAW - Judgment and Punishment - Sentence - Sexual intercourse without consent - Sleeping victim

Coleman v the Queen (1990) 47 A Crim R 306

Ibbs v the Queen [1987] HCA 46; (1987) 163 CLR 447

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

R v Buckley (Unreported, ACT Supreme Court, SCC 214 of 2012, AJ Nield, 30 August 2013)

R v Buda-Kaa [2013] ACTCA 46

R v Chiron [1980] 1 NSWLR 218

R v Davies (1993) MVR 481

R v DF (No 2) [2012] ACTSC 3

R v Ferrer-Esis (1991) 55 A Crim R 231

R v Sagiv (1986) 22 A Crim R 73;

R v ST (No 2) [2014] ACTSC 52

1. Impairment of cognitive function by consuming alcohol or drugs can have serious effects on the safety of the community when accompanied by driving or by causing violence, as, regrettably, the courts often see. Just as significant, however, is the disinhibition such consumption can cause for the proper restraints on sexual activity, as in this case, causing the incapacity of a person to consent, making such sexual activity criminal. When combined with the residual effects of childhood trauma, such as sexual abuse, the results can be quite calamitous for all concerned and call for a challenging and creative sentencing response.

2. Keith Taylor has pleaded guilty to one count of engaging in sexual intercourse with the victim without her consent, being reckless as to whether she was consenting. The offence is contrary to s 54(1) of the Crimes Act 1900 (ACT) which provides for a maximum penalty of twelve years imprisonment. It is, accordingly, by the yardstick of the statutory maximum, a serious offence. See Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at 133; [31]. When Mr Taylor entered his plea, an application was made by the Crown to adduce, for the purposes of the sentencing, evidence of prior sexual activity of the victim, for such the complainant had become as a result of Mr Taylor's plea of guilty.

3. Section 51 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), (the Evidence Act), provides that evidence of the sexual activities of a complainant is not admissible in sexual offence proceedings unless the court dealing with the proceedings gives leave. The application for leave must be in writing. Written application was made in this case, though initially for the purposes of the trial. Mr Taylor consented to the admission of the evidence but the court is required to exercise its own discretion as to whether or not it should grant leave. Under s 53 of the Act, leave must not be given unless, relevantly in this case, the evidence has substantial relevance to the facts in issue.

4. The evidence is that the complainant was masturbating at a party in the presence of Mr Taylor and other witnesses. She was also heard by a witness to "moan in a sexual way" after Mr Taylor had left the premises.

5. There is no doubt that these proceedings are relevantly sexual offence proceedings, s 48(2)(C) of the Evidence (Miscellaneous Provisions) Act. The term "sexual activities" is not defined in the Act. It should be given its ordinary meaning. Taking a literal approach there is no doubt that masturbation is an activity and it is sexual in the sense that it is related to the gratification of sexual appetites.

6. The other evidence of moaning in a sexual way is perhaps more marginal and could well be seen as sexual in the circumstances, namely after Mr Taylor is said to have committed the offence. If it is not sexual activity, no leave is required to adduce evidence of it. The need for "substantial relevance" means, as I held in the R v ST (No 2) [2014] ACTSC 52 following Slicer J in W v R [2006] TASSC 52; (2006) 162 A Crim R 264, that the evidence is of "considerable importance" "concerning the essentials" or "important in material terms."

7. I am not suggesting that the sexual behaviour of a victim justifies nonconsensual sexual intercourse. It does seem to me that the circumstances of the incident are important for sentencing. Indeed, the Crown relies upon the fact that the victim engaged in these activities in public to show that the victim was substantially intoxicated and impaired in a way that soon led to her being incapable of consenting to the intercourse that Mr Taylor had with her. The evidence was a matter relevant to an essential element in the offence. Accordingly, I granted leave to the Crown to adduce that evidence and these are my reasons.

8. The events that led to Mr Taylor being charged with the offence to which he has pleaded guilty occurred at and after a party which he attended on 8 December 2012 at residential premises in Turner. The victim also attended the party. During the evening the victim was drinking champagne and white wine and at some stage took a "trip" of lysergic acid diethylamide (LSD). There is no evidence that Mr Taylor knew that the victim had taken LSD. Mr Taylor arrived at the party about two and a half hours after the victim and joined her and others in an outdoor entertainment area known as "the vortex."

9. At some point during the evening Mr Taylor sat next to the victim in the Vortex and put his hand up her dress onto her leg and rubbed her thigh. The victim said she felt uncomfortable and shifted away from him but he repeated the actions a number of times. Eventually the victim stood up and went into the house where she made a complaint to her friend, saying, "I keep moving away from him. I don't want him touching me and he is just not getting it." Sometime later the victim and her friend went back to the Vortex and, sometime after, Mr Taylor sat next to her again and again put his hand up her skirt near the top of her thighs. The victim removed his hand but Mr Taylor repeated his approach and the victim removed his hand on each occasion.

10. By this time, the victim had become more intoxicated, slurring her words and unsteady on her feet. Her friend suggested she move next to her away from Mr Taylor but he then stood up and sat next to her again. By this time it is said that the victim was so intoxicated that she was frequently giggling to herself and not engaging with the other people around her. Mr Taylor at some point put his hand up the complainant's skirt again and one of the other guests said to him, "What are you looking for, mate? Have you lost your keys?" Mr Taylor did not reply but removed his hand.

11. At some time after Mr Taylor arrived at the party Mr Taylor gave the victim "a line of speed (amphetamine)." It appeared that this was at a time when the victim was intoxicated, for she took some of it but most of it fell into the bathroom sink, which she left there. Mr Taylor wiped the remaining drug with his finger and put it in his mouth. Later the victim, by then heavily intoxicated, removed her dress and her bra, stating that she was hot and wanted to "be natural." She remained seminaked for a few minutes before friends assisted her to put her dress back on.

12. At this point two of her friends felt that it was safer for the victim to be seated between them so that she was not sitting next to Mr Taylor. Later in the evening the victim, still sitting in the Vortex, put her hand up her dress and started making moaning sounds. She appeared to be masturbating. The hostess and one of the victim's friends decided that the victim needed to go to sleep. So they took her inside the house and laid her on a couch in the front room. The victim was unable to walk without assistance and was stumbling. She lay on the couch with her eyes closed, humming and smiling to herself and starting to masturbate again.

13. Mr Taylor remained in the house when all the guests had left, even though he had not made any arrangements to stay the night. The hostess put a blanket on the couch where the victim was lying asleep. She saw that Mr Taylor was standing at the end of the couch. The residents of the house then went to bed but shortly after heard the victim making moaning sounds. The sounds grew louder and the hostess got out of bed and went to the front room and said, "Shut up. There are children in the house." She heard Mr Taylor say, "Shush." During this time Mr Taylor inserted his finger into the victim's vagina. This is the act which constitutes the offence of sexual intercourse without consent. After he removed his finger the victim urinated on the couch.

14. The victim got up at about 3 am, found she was not wearing her bra and recovered it and her handbag and drove home. She had no memory of the events of the party after about 9 pm. On Sunday morning the hostess found a bloodied tampon on the floor next to the couch and a stain on one of the couch cushions and she sent a text message to the victim and Mr Taylor asking for them to pay for the cleaning of the couch. The victim responded that she did not know what was being referred to and indeed did not know who the other person, Mr Taylor, was.

15. On the Monday morning Mr Taylor left a note of apology and $300 for the cleaning of the couch in the mailbox of the residents. Later Mr Taylor admitted digitally penetrating the victim but stated that she had consented. He made this statement to a group of people, including the victim. It was a result of this admission that he was charged. Had he not made the admission there could have been no prosecution.

16. Mr Taylor is now fifty-one years of age, having been born in Nambour, Queensland. His childhood experiences became rather confusing after his parents separated when he was seven years of age. His mother, however, provided a stable upbringing and he maintained supportive relationships with her and three siblings. I had a report from psychologist Anne Macdonald, who Mr Taylor, to his credit, consulted after he had been charged and from whom he is receiving psychological treatment. The report deals with a number of matters but relevantly for this chronology it recounts what Mr Taylor told Ms Macdonald about his childhood, which she described as "traumatic."

17. Ms Macdonald says that Mr Taylor, the youngest of five children, told her of the suicide of the eldest when Mr Taylor was eighteen years old. Media coverage of the Royal Commission into Institutional Responses to Child Sexual Abuse has triggered memories of sexual abuse suffered by Mr Taylor. He reported an attempted sodomy by another brother who was unable to have sex with his sister. He also reported seeing his eldest brother sexually abusing his sister. Ms Macdonald reported that Mr Taylor told her of a sexual relationship that he had with his oldest sister from the ages of ten to twelve, though it was no coercion from either side.

18. Mr Taylor also reported being groomed by a paedophile when he was fourteen years old but, recognising the behaviours from his experiences with his brothers, he was able to escape the situation. He also reported that his father was an abusive and violent man who made Mr Taylor very frightened of him as he was frequently beaten and abused. He also saw his father engage in a revolting act. Mr Taylor's parents separated when he was nine. At age fifteen he was seduced by the mother of one of his friends.

19. These events were profoundly distressing and it would be inhuman not to feel a good deal of sympathy for Mr Taylor and to recognise the disadvantage that he has suffered. What is regrettably missing is any expert evidence that shows how this has in any way caused or contributed to his offending. He has expressed to Ms Macdonald the fear that his experiences will cause him to be a perpetrator but she does not offer any professional perspective on that and, in particular, how, if at all, it was causally related to the offences of the evening.

20. Mr Taylor completed year 10 at school and became a trade assistant and a machine operator. He is now a truck driver. He relocated to Canberra in 2000 and currently lives with his supportive partner, with whom he has had a relationship for about fourteen years.

21. Mr Taylor first consumed alcohol when he was fifteen or sixteen but for the next five years engaged in weekend binge drinking, often consuming about sixteen standard drinks. He reduced his alcohol consumption after he was 21. It appears he was involved in a motor vehicle accident involving the use of alcohol which resulted in the death of one person and injury to another. He was charged with dangerous driving and sentenced to 12 months imprisonment.

22. He told Ms Macdonald that, after the period of imprisonment, he was determined to turn his life around and has succeeded to a large extent, travelling extensively overseas and working in the snowfields as a snowmaker. Nevertheless, an alcohol screening test conducted on 5 January 2015 by the author of the Pre-Sentence Report indicated that he was consuming alcohol at a risky or hazardous level requiring intervention and counselling.

23. Mr Taylor used cannabis and cocaine on what he described as an experimental basis between ages thirty and forty-nine. He uses methylamphetamine socially but says that he ceased use of it after the current offence.

24. Mr Taylor is said by the author of the Pre-Sentence Report to have engaged with a mental health practitioner for treatment of a mental health condition, but I had no further information about that, unless that is a reference to his treatment by Ms Macdonald.

25. Mr Taylor has a relatively short criminal history, all of it in Queensland. He was first before the court in 1968 for disqualified driving and has four subsequent traffic offences. The most serious one being the offence of dangerous driving for which he was sentenced to twelve months imprisonment. That offence occurred in January 1984.

26. It does not seem to me that his criminal history has a significant impact on the sentence that I must impose, save for the fact that the other serious offence, of which he has been convicted, also involved the consumption of alcohol, though now about thirty years ago, with only one minor traffic infraction since 1987. To that extent he has, since his earlier imprisonment, turned his life around.

27. Ms Macdonald diagnosed Mr Taylor as suffering from a major depressive episode triggered by excessive rumination and preoccupation with the beliefs about the impact of his childhood sexual abuse on his character. He felt, she said, that his abuse meant that he had a greater chance of becoming a perpetrator and that this offence had proved that to him. This has led to him becoming suicidal. He was, she said, convinced that he was like his father and brothers and carried a genetic potential to be a perpetrator of sexual abuse.

28. As I have noted above (at [19]), Ms Macdonald gave no further assessment of whether this was an accurate perception by Mr Taylor. Ms Macdonald had, however, identified a number of treatment goals which she had identified with him and that he had responded well to treatment, working hard to address the issues that had brought him to seek treatment. She described Mr Taylor as "distraught at his actions and particularly that he did not recognise how intoxicated the complainant was." Had he realised this he would not have done what he did. Ms Macdonald opined that his selfinduced intoxication may have impaired his capacity to make an informed judgment at the time of the offence. He had consumed eight standard drinks, the first alcohol he had consumed for nearly twelve months, and some speed.

29. I also have six character references from Mr Taylor's partner, colleagues and friends. They all disclose that they knew of the offence with which he had been charged. The referees attested to his good character and the generosity he showed to his friends. His partner described him as "a good person" despite the "dreadful mistake" that the offence constituted. She noted that he had accepted responsibility for his actions and expressed confidence that it would not happen again.

30. She further described him as "loving, dedicated, helpful, generous and kind." He had supported her through a year of treatment for breast cancer, though, at the same time, he was subject to these proceedings. She reported on the "beneficial" effect on him that the treatment with Ms Macdonald had had, enabling him to "work through his issues, discuss problems and gain a better understanding of the effect of his actions." She acknowledged that alcohol had been a problem for him but reported that he had ceased drinking to excess since the offence. She described him as having "carried his guilt and shame very heavily over the past two years."

31. The other referees also attested to his commitment to his friends; the fact that he had taken full responsibility for his offending, which had "shaken him to the core"; that he was remorseful. Instances of his generosity and responsibility were given by a number of them. The behaviour to which they attest is quite different from that which is set out in the statement of facts tendered without objection. I am satisfied on all the evidence, however, that his behaviour at the party was out of character. Nevertheless, the referees will have gained an explanation of the offence from Mr Taylor. That they have described it as a "mistake" and "error of judgment" has an element of minimising the behaviour. Mr Taylor also wrote a letter to me in which he acknowledged that he was pleading guilty "to take responsibility for his actions."

32. Mr Taylor was summonsed for three offences and appeared in the ACT Magistrates Court on 3 March 2014. He entered a plea of not guilty to all offences and the proceedings were adjourned to 15 May 2014. On that day he was committed for trial to this court on the three offences. On 3 December 2014 the proceedings were listed for trial to commence on 8 December 2014.

33. On that morning, however, Mr Taylor entered a plea of guilty to the third count on the indictment, which the Crown indicated that it would accept in full satisfaction of the indictment. This was a late plea, despite his earlier admissions, which made the case likely to be an overwhelming one for the Crown. No explanation was offered as to why he had pleaded not guilty and maintained that until the morning of the trial. No doubt a notice declining to proceed in respect of the other counts on the indictment will be filed by the Crown, as stated that it would do. See R v DF (No 2) [2012] ACTSC 3. He has not spent any time in custody for these offences.

34. Problems have been identified in the past in this Court where discussions about the facts of offences, between an offender and the author of a Pre-Sentence Report ordered for the offender, have led to the offender being reported as making statements about those facts which amount to him controverting the guilty plea, requiring the court to reject the plea and to direct that the matter proceed to trial. In this case there are some suggestions of this in the Pre-Sentence Report. Under the heading "Attitude to offence" the author reports:

Although Mr Taylor agreed with the statement of facts he maintained that he thought the episode was consensual. He stated he was still struggling with the fact although in hindsight he now accepted that the victim did not consent. Mr Taylor stated that he was intoxicated and under the influence of an illicit substance when he committed the offence.

35. There is some reference to this also in Ms Macdonald's report where she reported that he did not recognise how intoxicated the victim was and that he thought it was a consensual act. I was assured by counsel for Mr Taylor that he was not controverting the plea and acknowledged that, as the statement of facts, tendered without objection, made it clear, the victim was either too intoxicated or asleep or both to be able to consent.

36. Her previous behaviour, although clearly of a sexual nature, did not amount to, and could not reasonably be taken by Mr Taylor to be, consent. Indeed, the fact that she resisted his approaches earlier must reasonably have made that clear. Further, the Crown pointed out that her behaviour was such that Mr Taylor must have known that the victim was vulnerable and in no state to consent to the sexual intercourse. Mr Taylor, in his letter to me, said that he had pleaded guilty "to take responsibility for his actions." After reading the statements provided with the brief from the Crown he appreciated that the victim was not capable of consenting.

37. It seems to me that this amounts to an appreciation of the nature of the charge to which the plea was entered (R v Ferrer-Esis (1991) 55 A Crim R 231 at 233) a free and voluntary confession of the crime (R v Chiron [1980] 1 NSWLR 218 at 220) the plea was attributable to a genuine consciousness of guilt (R v Murphy [1965] VicRp 26; [1965] VR 187 at 191) there is no mistake or other circumstance which would have led Mr Taylor to have pleaded not guilty (R v Sagiv (1986) 22 A Crim R 73) the plea was unequivocal and not suggestive that it was not a true admission of guilt (Maxwell v R [1996] HCA 46; (1995) 184 CLR 501 at 511; [186]- [187]) Mr Taylor was in possession of all the facts (R v Davies (1993) MVR 481 at 484). As Kirby P said in R v Liberti (1991) 55 A Crim R 120, 122:

A plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence.

38. I accept Mr Taylor's plea on that basis, as I was urged to by both counsel.

39. Referring to the offence of sexual intercourse without consent, in R v MT [2014] ACTSC 162 at [36], I said that it:

interferes with the bodily integrity of the victim and, of course, undermines the freedom of women to move about in our society. It induces fear about the security of women and often has longterm and serious psychological consequences.

40. The maximum penalty, as indicated above, does not mean that every case is to be treated in the same way, particularly given the wide range of categories of offence that the current definition of sexual intercourse provides. As the High Court said in Ibbs v the Queen [1987] HCA 46; (1987) 163 CLR 447 at 452:

When an offence is defined to include any one of several categories of conduct the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault a sentencing judge has to consider where the facts of the particular case lie in a spectrum; at one end of which lies the worse type of sexual assault perpetrated by any act which constitutes as sexual penetration as defined.

41. There can be no doubt that digital penetration of a woman's vagina without her consent is a serious matter. It would seem, however, that it is somewhat less serious than penile vaginal intercourse, which includes consequential risks of pregnancy and sexually transmitted diseases. This offence is made somewhat more serious by the clear message given by the victim that she did not welcome Mr Taylor's advances earlier in the evening, the fact of her substantial intoxication and the fact that she was lying on the couch, apparently asleep, when he committed the offence to which she was clearly incapable of consenting.

42. It was, however, the only offence for which I am sentencing Mr Taylor and there was no additional humiliation inflicted on the victim, although I can accept that she would have been severely distressed. The seriousness of the offence means that ordinarily a conviction for such an offence will require a custodial sentence. I note that the offence was somewhat opportunistic and not premeditated, though Mr Taylor had clearly shown a sexual interest in the victim earlier in the evening. The opportunity was somewhat more serious because of the incapacity of the victim.

43. There are many decisions, regrettably, involving sexual intercourse without consent in this jurisdiction. One case which may be relevant is the R v Buda-Kaa [2013] ACTCA 46. In that case the victim fell asleep and Mr Buda-Kaa, who was twenty-two years old with a significant criminal history, came into her bedroom and touched her breast and digitally penetrated her vagina. He was, for the sexual intercourse, sentenced to three years imprisonment. A nonparole period of one year and six months was set. It seems to me that that case was a somewhat more serious offence than the present case.

44. In the R v Buckley (Unreported, Australian Capital Territory Supreme Court, SCC 214 of 2012, AJ Nield, 30 August 2013) acts of digital penetration and cunnilingus were performed on the originally sleeping victim. There were, however, elements of deceit and predatory behaviour involved. The sentence for the acts of sexual intercourse was five years imprisonment concurrent with the sentence for other offences and a nonparole period of two years and six months was set. It, too, seems to me a more serious case than this.

45. I had a detailed victim impact statement which showed that the victim has suffered significantly from the party. She identifies this as being attributed to Mr Taylor's offence and I accept that much of it is so attributable. It was, as she said, mortifying to find out from others what had happened to her. This is entirely understandable. Her own behaviour at the party prior to the offence was also worthy of comment and likely to have made her friends and colleagues at least uncertain, if not uncomfortable, with her subsequently.

46. I must not, and do not, minimise the seriousness of the interference with her that Mr Taylor inflicted but it is difficult to separate the consequences, as she described them, that she suffered from her own actions from those caused by Mr Taylor. I am satisfied that she has suffered significantly as a result of the offence and this has had some effect on her psychologically, on her work situation and on her family relationships. I do not accept that all that she describes is attributable, however, to the offence itself.

47. I have regard to the purposes of sentencing set out in s 7 of the Crime Sentencing Act 2005 (ACT).

48. I note that Mr Taylor was intoxicated during the evening, both with alcohol and drugs. Almost invariably intoxication which may explain an offence cannot be considered mitigatory. See Bourke v R [2010] NSWCCA 22; (2010) 199 A Crim R 38 at 44; [20]. It can, however, be relevant to determine the degree of deliberation or premeditation involved in the crime, as noted by Hunt CJ at CL in Coleman v the Queen (1990) 47 A Crim R 306 at 327. In this case, it contributed to Mr Taylor's lack of judgment where his recklessness was clear.

49. I take into account the seriousness of the offence, as I have described it. Clearly, this is an offence which requires general deterrence and denunciation to show to the community that such behaviour is completely unacceptable. While Mr Taylor has no history of sexual offending, the risk of his alcohol consumption requires some degree of specific deterrence in the sentence to be imposed. While the offence was not the most serious version of this offence it was still a serious offence which was a significant violation of the victim's integrity.

50. I take into account Mr Taylor's subjective circumstances, including his background, age, antecedents and health, as I have described them above. While he has a criminal record it is of different character and most of it some significant age ago and, while not completely irrelevant, as I have noted above, it does not deny him any leniency. I accept that Mr Taylor is remorseful. In the circumstances where he may have had a defence his plea is a significant sign of remorse. His letter and the references confirm his remorse. He understands that his behaviour was unacceptable and that the behaviour of the victim did not entitle him to invade her integrity as he did.

51. I take into account Mr Taylor's plea of guilty, although it was entered at the first day of the trial. Nevertheless, it did save the administration of justice and avoided the need for the victim to give evidence, though, in the circumstances, she was probably under stress as there was no guarantee that the trial would not proceed until the last minute. I accept that Mr Taylor's admission was the only evidence of the offence.

52. That is a powerful mitigating factor, although somewhat undermined by his plea of not guilty until the morning of the trial (Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 at 272-3; [15]). It seems to me that this does justify a degree of leniency.

53. I take into account the victim impact statement and the effect of the offence on the victim, as I have described.

54. There are some powerful mitigating factors in this case but the offence is a very serious one which involved predatory behaviour throughout the time Mr Taylor was at the party.

56. I convict you of sexual intercourse without consent on 8 December 2012.

57. I sentence you to two years imprisonment to commence today. Had you not pleaded guilty I would have sentenced you to two years and three months imprisonment.

58. I direct that the sentence is to be suspended on 16 August 2015 for two years and six months.

59. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) from 16 August 2015 for two years and six months with the following conditions:

(a) a probation condition that you be under the supervision of the Director General or her delegate for two years, or such less a period as the person supervising you deems appropriate, and obey all reasonable directions of the person supervising you, including as to ongoing counselling, including for alcohol and drug use.

(b) a condition that you either continue counselling with Anne Macdonald for the period she, in consultation with the person supervising you, considers appropriate or you participate in the ACT Corrective Services adult sex offenders program as follows: If you have not already done so, you submit yourself for assessment for the ACT Corrective Services adult sex offenders program and, if suitable, you enter and complete that program, or if at the time you have already been admitted to the program, you continue with it and complete the program.

60. [His Honour then spoke directly to Mr Taylor]

61. Mr Taylor, these are the formal orders that I have made but it is important that I explain them to you. I have indicated that I have taken into account the seriousness of the offence and your personal circumstances. I have assessed that two years imprisonment is the period for which the punishment should be. However, I only require you to serve six months of that period in full-time custody.

62. At the end of that six month period I have suspended the sentence for two years and six months. That requires you to sign an undertaking which has some conditions in it:

(1) That you not commit any further offences punishable by imprisonment. If you do you can be brought back before me and you can be sentenced again for this offence, including being sent to gaol, as well as being sentenced for the offence.

(2) A probation condition, which is intended, to some extent, as control but also for your benefit and to allow you to address your behaviour. It involves supervision for a period of up to two years, or less if the person supervising you thinks that you are going well, and includes a direction as to counselling about alcohol and drugs. It may be that you have come to your senses, as you have been able to do in the past, and that those will not be a problem for you. But there is someone there who can (a), control that situation, if it is getting out of control, or (b), assist you if you need to.

(3) Some counselling for your situation, both the past, but also your present situation, either with Ms Macdonald or the adult sex offenders program. Not both. You can start, I believe, the sex offenders program in prison. That is a matter for you. If you would prefer to do both that is a matter for you. If you would prefer to be counselled by Ms Macdonald I do not imagine she can do that in the prison but if she can, then you can start that immediately. You can certainly start it as soon as you are released from prison and continue thereafter on the period of the good behaviour order.

(4) When you get out of gaol you will have to do 300 hours of free work for the community within two years and that will be arranged for you. If you do not complete that work then you can be brought back before me and you can be resentenced.

63. I hope that this has been a lesson to you and that you will be able to address your own demons and put those behind you. I do not believe that you are a perpetrator but what you did was a very serious, completely unacceptable act and the community requires you to be punished for that.

64. I hope that this will bring you through this difficult period and that you can go back, in effect, to where you were before, turning your life around after this period of imprisonment to be a useful and worthwhile member of the community, as your referees have attested that you have in the past.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge.

Crime Sentencing Act 2005(ACT)

(Sentence Administration) Act 2005

(Miscellaneous Provisions) Act 1991

Crime Sentencing Act 2005(ACT)

(Sentence Administration) Act 2005

(Miscellaneous Provisions) Act 1991

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