R v Treverrow

PRE-SENTENCE CUSTODY

1. The offender has spent no time in custody. He was subject to bail, and though he had some conditions with which to comply, they were not so onerous as to ameliorate the punishment a court must impose. I shall refer to them in due course in a little more detail.

THE FACTS

1. It is my task to find the facts upon which to determine sentence consistent with the verdict of the jury. I am to form my own view of the facts. Where there might be controversy, I am not bound to proceed upon the facts that most favour the offender, but those which inform the objective seriousness of the offence must be proven to the standard beyond reasonable doubt, and those which the offender would advance in mitigation will be accepted if proven upon the balance of probabilities: Cheung v R (2001) 209 CLR 1; R v Olbrich (1999) 199 CLR 162; Savvas v R (1995) 183 CLR 1; R v Isaacs (1997) 41 NSWLR 374.
2. There was no issue in the trial that the offender entered the house and then the victim's bedroom where the sexual touching was found had occurred. So much was made clear by counsel during her opening address found in the trial transcript p 6. Plus, the elements of breaking and entering the premises were not contested.
3. The evidence established the following facts to my satisfaction beyond reasonable doubt. I am grateful for the summary provided by the Crown with which the offender does not cavil, drawn upon the evidence which the jury must have accepted to that standard.
4. The offender was born on 11 August 1972 and the victim on 15 July 2000. At the time of the offence, the offender was 48 and the victim 20 years old. They were not known to each other before the evening leading to the offence. The offender had a nickname, "Rare", perhaps a derivative of his family name, but regarding which there was passing reference to this as reflecting his preference for a style of grilled meat. Nothing ultimately turns upon this.
5. The victim and the offender were not known to each other, as I said, before the offence. At the time of the offence, the victim's mother lived at an address at Mossy Point near to the home occupied by the victim and her father. Her mother lived with her stepsister. The distance was about five minutes' drive between the two addresses.
6. On 15 January 2021, the offender was in the Bermagui area with his son, aged 14. The offender was a long-time friend of Kendall, Mark's partner. Mark is the victim's father. On 15 January 2021, the offender contacted Kendall to see if they could catch up. She invited him to her address and invited him to stay the night. He drove a white Volkswagen Transporter with a mattress in the back. On 15 January 2021, the victim finished work at 5pm and went home to [REDACTED] Road. She left briefly to go to the shops before returning. She was alone at the address at that time. Sometime later, the victim heard a female and a male voice outside. She recognised the female as Leanne, also known as Lee, a long-time family friend. The male with Lee was the offender.
7. Lee entered the house through the front sliding door that was unlocked. The offender followed. The victim said hello to the offender, to which she received no reply. The victim had never met the offender prior to this night and he had never been inside the house. A short time later, the victim's father arrived at the house with his partner, Kendall. About 9.30pm, the victim decided to visit her mother and stepsister at their home address. She was at that location for a few hours and then returned home sometime before midnight. Upon returning, she noticed her father and the offender were outside chatting and she went inside to her room. Later, her father, Kendall, Lee and the offender came inside and the victim variously engaged in conversation with them or was alone in her bedroom. The victim mostly spoke to her father, to Kendall and Lee and had little interaction with the offender.
8. While the guests were still at the house, the victim said goodbye and went to bed. This was some time after midnight. The victim was shutting her bedroom door. She heard the front sliding door close. Around 1am her father, Kendall and Lee and the offender left. Lee returned to her own residence. The victim's father, Kendall and the offender went to Kendall's residence about five minutes away. As he left the premises, her father turned off the lights and closed the front door without locking it, as was his usual practice. There was only one entrance to the premises. The victim remained at home and went to bed. She closed her bedroom door, changed into her pyjama shirt, and went to bed. Her pyjama shirt was a longer T-shirt which extended down to above her knees. She did not wear any other piece of clothing to bed.
9. She was lying in bed under the covers scrolling on her phone before falling asleep. The room lamp remained on. At Kendall's residence, the offender parked his white Volkswagen Transporter van at the front. The offender was offered the couch to sleep on. He had a mattress in the back of his van but his son was sleeping there when the victim's father, Kendall and the offender reached that address. About 1.30am, the victim's father was nearly asleep when he recalled hearing the offender's vehicle start up outside. He thought the offender was just moving it to a flatter piece of ground and did not pay much attention.
10. The victim in the meantime back at her home heard the front sliding door open and then footsteps coming up the stairs towards her room. She was laying in bed with her back towards the bedroom door which opened in one full motion. The lamp was still on. The doona was still covering her. The victim then felt the doona being pulled away in one full motion from the top to the bottom of the bed to around her ankles. The victim looked over her shoulder and saw the offender. She was in shock and started to sit upright in her bed. The offender sat down on the bed in a position highlighted on a photograph identified by the victim. The offender used both of his hands to grab the victim's thighs. She said, "No". He said, "Why not, come on". The victim replied "No".
11. The offender's hands were still on the victim's inner thighs. He then began moving his hands towards her genital area. The offender's hands had commenced below her knee and made their way up her legs and then lifted the victim's shirt to her stomach exposing her genitalia. He then moved his hands towards her genital area. The offender's hands came close enough to touch the victim's genital area. The victim then tried to push his hands away. The victim grabbed the offender's wrists and pushed him away multiple times and repeated, "No, leave me alone". The offender then got up from the bed and left the room.
12. The offender left through the front sliding door. She remained in her bed. Shortly after he left, she rose and locked the front sliding door. The victim then went to her room. She was in shock, she was upset. She tried to reach out to some friends via social media. She did not feel safe and wanted to tell someone in case something else happened. She cried for a few hours before falling asleep.
13. On 16 January 2021 when the victim woke, she sent a message to her stepsister telling her she needed to tell her something. She then went to her mother's house and disclosed to her stepsister and her mother what had occurred. She disclosed to her father by way of a text message.
14. The offender was contacted by both Kendall and the victim's father by telephone and by text. The offender made admissions and apologised. At 3.40pm on 17 January 2021, the offender presented himself at Lake Illawarra Police Station and was placed under arrest. He declined to participate or make any comment during the interview after seeking legal advice. He suffers no adversity because of making that decision, as he was perfectly entitled to do that in the exercise of the rights we all have as members of our democracy.
15. The offender gave evidence in the trial denying knowingly committing the offence of sexual touching. He acknowledged that he went to Kendall's home where he was provided with a blanket to sleep on the lounge: trial transcript p 137. From line 25, he said that once Kendall and the victim's father went to bed he went out to where his son was at the van. His son was asleep. He woke him. When asked why, he said: "Well, I didn't want to sleep outside. We were right under Mark and Kendall's - where the van was parked on the footpath, we were right under their bedroom window so it wasn't really comfortable sleeping there. And I suggested to [my son] that we get up and drive to the point and we can wake up in the morning in the van and go surfing. We were right there."
16. From line 48 he acknowledged that he did not make it to The Point. He said that they went over the bridge and as they passed "Mark's turnoff" he turned down and parked at the top of the driveway. When asked why he did that, he said, "I wanted someone to talk to. I was desperate to talk to someone." "Q. Who were you going to talk to? A. I thought I could talk to G. Q. Why did you think you could talk to G? A. She was nice to me that evening. She was friendly and personable, she seemed intelligent. Q. How old did you think G was? A. 20, early 20s. Q. Did you think that maybe it was a bit strange that a young girl in her 20s will want to talk to you? A. I, I didn't think - even think about it. Didn't cross my mind, I was so, I was just thinking about all the different, just the chaos in my life at the time. Q. At the time that you went and parked at the top of Mark's driveway, were you sexually attracted to G? A. No, not at all. I got a, a daughter who's nearly the same age."
17. At transcript p 139 beginning at line 9, he was asked what he did after he had gone through the bedroom door. He said he sat on the side of her bed. He sat in the middle of the bed facing where her feet were at the end of the bed just onto the side. He said his legs were just sitting off the side. She was lying on her side facing him, the opposite way to her doorway. He still had not said anything at that point. When asked what he did, he said: "I, once I'd sat, I waited for a moment because I thought it was strange that she still hadn't kind of noticed me. Maybe that was a couple of seconds. And then I reached across with my right arm and as, and I looked across and tapped her on the hip once. Q. So just as you were doing that, you were doing a motion with your arm. So you were turning your body towards your right? A. Mm. Q. And your arm was moving around with your body at the same time-- A. Yeah. Q. --is that right? Did you touch G? A. I touched her with the back of my finger. Q. Where? A. I think it was on the top of her hip or it was like the small of her back or somewhere in that area. Q. What kind of a touch was it? A. Well, it was, it was, it was gentle enough, it was, she could just, I think she must have just felt the touch. But it was, it was the lightest of touches, or not the lightest, it was a light touch. Q. What did she do? A. I'm not sure whether she'd already sat up a little bit at that point. She may have been sitting up a little bit. I, I can't remember. Her left arm came up very slowly and as I was pulling my arm back, her back of her hand just touched my hand and kind of just gently brushed it away. Q. Did she say anything at that stage? A. No. Q. Did you say anything at that stage? A. No. Q. What did you do? A. I jumped up. Q. Why? A. I think at that point, at that very second when her arm was, she moved her hands so slowly and gently, I think at that point that I realised she must have been terrified, and so terrified that she didn't want to move quickly. So at that point it, it became quite clear the situation I put both of us in. Q. What was that? A. Well I, I terrified, obviously G. And I, I'd come into someone's house without permission, I'd come into someone's bedroom without permission. And just everything, yeah, everything crystallised at that moment and I realised what I'd, as my mother would say, a very poor piece of judgment that was. Q. Did you at that point try to explain to G why you were there? A. No, I, I couldn't talk. I couldn't say anything, I just, I just fled. I wanted to say, I wanted to say something to her. Q. So you fled? What did you do? A. Just, I don't, I'm not sure whether I ran out of the room but I, if I wasn't running, it was, wasn't far from that."
18. He said he went back to the van and then drove to go where he was intending to originally on the headland. He stayed there that night. He denied grabbing G on the thighs. He did not try to touch her genitalia; he did not touch her genitalia. He was asked: "Q. Were you thinking, when you were in that room with G, that something of a sexual nature might happen? A. The, the thought hadn't crossed my mind, that wasn't, I wasn't attracted, wasn't the purpose of my visit. You know, it was--"
19. The jury did not believe the offender. It would not follow, however, that the Crown would succeed in the prosecution. It could only do so if the jury concluded that the evidence given by the victim was both true and correct, as I had instructed them in my summing-up. By finding the accused guilty it must be that the jury found her both reliable and credible and that her evidence established the offence charged.
20. I agree with the verdict that the jury returned in this case.

THE GRAVITY OF THE OFFENDING

1. The Crown submits that the offending falls within the mid-range of offending of this kind. Upon my analysis of the factors relevant to the assessment of objective seriousness of the offending, I differ in the assessment made by the Crown and find that the offence is marginally below the mid-range of objective seriousness. I have noted factors in coming to this conclusion. The offence of which the offender was found guilty is one of breaking and entering and committing a serious indictable offence. This occurred in the victim's home where she was entitled to safety. This is an aggravating factor to be brought to account: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.
2. The offender went to the home knowing the victim was there alone. He immediately removed her doona, sat on the bed, used both hands to take hold of her inner thighs, through her protests persisted, moving his hands from below her knees, up her legs, lifting her T-shirt above her waist to expose her genitalia, and had his hand or hands close to the genitalia. As I recall the evidence given by the complainant, she was not entirely sure whether his hand met her genitalia. Her evidence was, though, that his hand or hands were very close to that part of her body.
3. She took him by the wrists to hold him at bay, repeating her demand that he leave her alone until he desisted and left the room and fled the location. This occurred while his son remained in their vehicle parked outside.
4. His son, about whom I will speak in due course, has his own challenges in life.
5. My assessment of the conduct is that it was predatory in nature. It was, I accept, opportunistic, but I find that it had as its purpose sexual gratification which the offender chose to pursue in the face of her resistance.
6. The range of serious indictable offences begins with those that have a maximum penalty of five years extending to much more serious crimes with much longer maximum penalties. Though I find that the objective seriousness of the sexual touching, assessed as an offence standing alone is above mid‑range, the offence upon which sentence is to be imposed, bringing to account that assessment and the objective factors to which I have spoken, is below mid-range to a marginal extent.
7. The offender contends that the sexual touching falls at the lower end of objective seriousness. I do not agree. The submissions note that the breaking and entering at night in the victim's home where she was alone exacerbates the seriousness of the offence charged and concedes that it approaches the mid-range.
8. Upon slightly different analyses, the Court and the offender's counsel have come to the same assessment, which has the offence marginally below the level for which the Crown contends.
9. Relevant to the assessment of sentence is the standard non-parole period and the maximum penalty. The provisions introducing standard non‑parole periods are in Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999 amended after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39, adopting the relevant principles enunciated there. Section 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions. Section 54A(2) provides that the standard non-parole period represents a non‑parole period for an offence in the table considering only the objective factors affecting the relative seriousness of that offence, that falls within the middle of the range of objective seriousness. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence, without limiting the matters that are otherwise required or permitted to be taken into account. Section 54B(3) requires that the Court records its reasons for setting a non-parole period that is longer or shorter, identifying each factor considered.
10. The objective gravity has been assessed upon the consideration of the objective factors affecting the relative seriousness of the offence, without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending bringing into account the relevant factor provided in s 21A of the Act. The offence falling marginally below mid‑range does not lead to the imposition of a non-parole period near to the period specified in the table to the provisions. The fixing of the non-parole period is but part of the task whereby the Court determines what is the appropriate sentence, regardless of whether guilt is admitted or established after trial, and regardless of whether the offence falls within the low, middle, or high range of objective seriousness for such offences. The Court must not embark upon an arithmetical staged tier process of reasoning when assessing an appropriate sentence but must identify all relevant matters bearing upon the question of the appropriate sentence and the process of intuitive synthesis discussed, for example by McHugh J in Markarian v R [2005] HCA 25 found at (2005) 228 CLR 357, particularly at p 378.
11. Also brought to bear are established sentencing practices and matters identified were relevant in ss 3A and 21A of the Act. In Tepania v R [2018] NSWCCA 247, Johnson J provided guidance upon the assessment of objective gravity and the significance of moral culpability in the process of determining sentence. After dealing with the provisions in Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999, his Honour discussed the concept of moral culpability found in several decisions of the High Court including Veen v R (No 2) (1987-1988) 164 CLR 465, [1988] HCA 14, where it was observed at pp 476 to 477 of the report that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability. His Honour referred to Muldrock v The Queen at para [58] as authority for the proposition that an offender's limited moral culpability may mean that retribution and denunciation do not require significant emphasis.
12. There is material before me that would assist the offender in this regard set forth in the report from the psychologist to which I will come. There has been a measure of disadvantage in the offender's life which might support the proposition that he has not been left with the emotional resources adequate to guide his behaviour in all decisions that he is called upon to make in his life. I refer to the discussion in R v Millwood [2012] NSWCCA 2 per Simpson J at para [69].

THE OFFENDER

1. The offender as I noted was born in 1972. He has a record of antecedents that do not include conduct of the type with which the Court is concerned. He was first in court in October 1998 for driving dangerously. He was fined and disqualified. In April 2004 he was fined for damaging property and ordered to pay compensation. In May 2015 he was fined for an offence of stalking or intimidation. Then in November 2015 for driving with the mid-range prescribed concentration of alcohol and exceeding the speed limit. He was fined for each offence and disqualified for the drink driving offence for a period of 12 months. He has a record in Victoria for being drunk in a public place, for assaulting a police officer, and for consuming intoxicating liquor. I would take that to mean in circumstances where such conduct was proscribed. He was discharged after completing a diversion program.
2. The offender gave evidence in the trial, as I noted, and he also gave evidence before me when the proceedings on sentence were heard on 5 August 2022, Friday last. He told me he had spoken to his psychologist, Kris North, and was truthful in what was said. The report provided he read and confirmed that it was accurate. He told me that he maintains his version of the events as given in his evidence as true, but since he has had a chance to reflect, he has had an evolving perception of his misconduct and said that he has taken ownership of his choices. He performed self-analysis to ascertain what had led him to the present circumstances. He spoke of counselling and assessment by a psychologist that began when he was aged 22. He spoke of an awareness of his patterns and his processes of thought. He said that he tended to place his needs above others with disregard for the consequences for other people. He had the challenge of explaining the outcome of this trial to his children. He referred to his daughter in her late teens. He found that devastating. He spoke to his daughter and his son at the same time. He referred to his son's medical problems.
3. He said the impact of all of this has had a profound effect on his son. His son needs structure and routine in his life so that he might function adequately in the community. He is presently living in his home with the offender's estranged partner; there was evidence given about the financial imperilment that will follow incarceration, because of the lack of resources to be able to acquire his partner's share of the house. He said that if he suffered a full-time custodial sentence he would need to sell the house because his partner and his mother could not manage the mortgage alone. His mother would be likely placed in a nursing home. She suffered a mild stroke four months ago. She has some issue with her hips. The stress of the trial has exacerbated her problems.
4. His future will involve conduct to address his poor choices that he made. He has reduced his drinking, but not entirely. He consumes alcohol in modest amounts now, attributing a consumption of a greater level as part of his problem. He referred to his evidence at the trial. He has had the opportunity to give more thought to the feelings of the victim. He said he had the chance to reflect upon the effect of what he did, to the extent that he acknowledges that he did something wrong, upon the victim and her family. He understands the effects of trauma and he referred to a friend or associate with whom he had a conversation. He said that he has taken away from this experience the proposition that this centres around how he has mistreated women, and he referred to his failed relationship and difficulties with his mother.
5. In cross-examination it was acknowledged that his son is with his son's mother. She suffers migraines. She is in receipt of workers compensation and is unlikely to return to work, and her current partner has mental health issues and some level of dysfunction. He acknowledged that he had past advice about the misuse of alcohol and acknowledged the consumption of five to six beers with whiskey in between them on the night of these events. He effectively offered qualified concessions about his conduct. He offered, in my assessment, qualified remorse. He denied any form of impropriety.
6. A question arose as to something that occurred during the evidence, or the conduct of the trial, perhaps more correctly, regarding the proposition that he misread signals; and the parties identified the relevant passage ultimately in the trial transcript. He was asked questions about that. He ultimately would not concede that he said what was attributed to him by Kendall, the person who offered that information, with the qualification that he did not recall exactly what he said. He said he was in a state of shock, having been confronted with the allegation by Kendall and the victim's father.
7. He acknowledged that he had undertaken psychological treatment in the past, to which I shall come. Notwithstanding that, he consumed more alcohol than he should have on the night of this event, perhaps offering some explanation for the decisions he made. Of course self-induced intoxication is not a matter available in mitigation by force of s 21A(5AA) Crimes (Sentencing Procedure) Act 1999.

CONSIDERATION

1. Discussion followed regarding this matter being dealt with by way of an intensive corrections order; there was the perception that the nature of this offence was such that that was not an option available. The Crown helpfully, and with the assistance of Ms Hall, who appears for the offender, identified the relevant provisions in s 67 Crimes (Sentencing Procedure) Act 1999, which revealed that if the sentence is one of two years or less, an intensive corrections order is a matter that the Court could bring to account to determine whether it is an appropriate sentencing option in this case.
2. The exercise required is to determine what is the sentence that the offending calls for, measured against the synthesis of facts and circumstances, objective and subjective. If the sentence is one of less than two years then the intensive corrections order provisions are enlivened for consideration, but if more than two years, that is not an option that is available.
3. However, the same considerations that might have informed a sentence by way of an intensive corrections order are relevant to a finding of special circumstances that will vary the custodial component of the sentence to a level below the statutory ratio provided in s 44 of the Act.
4. Ms Hall made submissions in terms of the way one would characterise the misconduct and the response by the offender, urging the view that what fell was not an attribution of blame to the victim in any form or to any extent, but an acknowledgement ultimately of the wrongdoing providing an explanation for his misreading of circumstances rather than what the victim did. He acknowledged his mistake, as it was put, accepting that there was no relevant conduct on the part of the complainant, or in other words, no signals given by the complainant that he had the opportunity to misread. It was put that I should accept that he recognised the trauma that he had caused by entering the house. He appreciated the significance of that, and she reminded me of what he said about his friend's experience of a home invasion which further illuminated the significance of the conduct upon which he engaged.
5. She acknowledged, as I noted earlier, that the offending fell near mid‑range. She added to the mix the disparate ages between the victim and the offender, and that the victim was home alone on the night and urged the view that if I came to a decision in terms that a sentence of two years or less was appropriate that I should resort to the intensive corrections order provisions.
6. The material tendered in the offender's case includes a report from Kris North, psychologist, of 29 July 2022. This was conducted over two hours and 45 minutes, with a further 30 minutes by way of a telephone consultation on 29 July 2022. A summary is provided at the beginning of the report in terms that the assessment indicated a history of self-esteem issues and insecure attachments in relationships during youth, associated with his adoptive status, and that these contributed to a vulnerability towards depression. His history included issues in regulating his emotions from early adulthood, including experiencing symptoms of depression, irritability, and anger. The opinion is that what he disclosed and the result of testing was suggestive of a major depressive disorder, recurrent episodes of moderate anxious distress, and that his anger and irritability represented his externalisation of anger. It was noted positively though that he had been engaging in psychological treatment from his early 20s.
7. In the body of the report it is noted at para 5 that he denied having touched the victim inappropriately, but expressed remorse for his behaviour in general, saying that he had done the wrong thing and that he should never have entered the victim's home or bedroom. He spoke of stress in the weeks preceding the incident because of losing employment in December 2020 and problems with his former partner with whom he was cohabiting. This gave rise to depression and stressors and a sense of loneliness.
8. The holiday that he was taking leading up to 15 January 2021 was discussed, including how he came to be at the victim's home. Paragraph 8 records that on the way to the beach, he had an epiphany as he drove past the victim's house and wanted to speak with her. He described feeling lonely and desperate to talk someone but acknowledged he had not met her prior to that day and had hardly spoken to her. He described his conduct consistent with the evidence he gave but denied touching the victim in any inappropriate manner.
9. His demographics are discussed. He grew up in the Wollongong area. He was adopted at birth. He had a younger brother who was the biological child of his adoptive parents. He had difficulty forming attachments with his family from a young age. Notwithstanding this, he described a stable and prosocial family upbringing. His father passed away when the offender was in his early 20s. That was a difficult time for the family, as one can imagine. His education and employment are discussed. He was an average student. He tended to be restless and hyperactive. He had a desire to be accepted by his peers and identified this as contributing to some of his acting out behaviours. There were behavioural issues from year 9 onwards, a decline in his grades from that point, he lacked direction. He completed the HSC in 1999. He was distracted by surfing and motorcycle riding. He was involved in Motocross.
10. He left his job after a disagreement with his employer. He relocated to Sydney and worked for Australia Post for some 18 months, and then went overseas for a year. On his return, he resumed with Australia Post and then from age 30, he worked as a truck driver for about eight years before obtaining work in a coal mine. A disagreement with that employer led to him leaving that job. He worked in landscaping and as a truck driver during that time, and more recently was employed in a coal mine from November 2021.
11. His relationship history is then discussed, including episodes of depressive symptoms after the relationship formed in his early 20s came to an end. He then entered another long-term relationship at the age of 28. They were together for 15 years and they have two children, the daughter, and the son to whom I have referred. His relationship issues with her are discussed. He then formed a relationship with another woman, which lasted until 2019. He is estranged from that woman but is cohabiting in the home they had acquired together.
12. His mental health history is described. It includes a lack of emotional attachment to his adoptive mother from a young age. He was disappointed with his failed attempts to contact his biological family. This gave him a sense of abandonment. He had difficulties regulating his emotions since early adulthood. Depression was reactive, triggered by life stressors. Anger was also reactive in circumstances where he was easily provoked and would act without thinking. It resulted in verbal aggression but nothing more serious. He engaged with a psychologist, Pat Cleary, between 1996 and 2005. He initially sought treatment to address issues of unresolved grief over his father's death. The treatment he described as erratic over a nine-year period. He found the experience overwhelming he said. He re-engaged in 2016 with a psychologist, Maria Roberts, and reported that he had been addressing issues relating to emotional dysregulation through those sessions. He had feelings of injustice relating to past disagreements with employers.
13. He spoke of a sense of shame and self-loathing, consistent with what researchers found, in terms, that depression may be externalised in men as displayed anger as opposed to characteristic internalised symptoms more commonly associated with depression. Sexual history is discussed and nothing of significance is revealed there. His substance abuse history is discussed. He began using cannabis in his early 20s, but this was not habitual. He experimented with ecstasy but denied recent illicit drug use. He described the social use of alcohol since adulthood but denied any problems prior to his late 30s. There was an increase in his consumption in the latter years of marriage, using alcohol as a maladaptive coping mechanism to manage his stress at the time. He recognised that this had led to problems in recent years, including memory loss. These he had been addressing with his sessions with the current psychologist treating him.
14. His mental status was assessed, including the identification of generally lowered mood, low sense of self-worth, a sense of hopelessness. There was no sensory perceptual thought disturbance and he was oriented to time and place and the purpose of his assessment. There was no indication of suicidal or self-harming behaviours. Psychometric testing included the Beck Depression Inventory. His score placed him in the severe range for depressive symptoms at the time of the assessment. The Beck Anxiety Inventory resulted in a score indicating moderate anxiety symptoms at the time of assessment. His Personality Assessment Inventory resulted in significant elevations in the clinical scales pertaining to depression, anxiety-related disorders, and alcohol use problems, consistent with his history of early attachment issues and trauma related to his adoption. An actuarial risk assessment was performed. He is in the moderate range of risk on the Static-99R, so too with the STABLE‑2007.
15. His past criminal history is discussed, and opinion is offered with a formulation developed upon the material that was before the psychologist. He is attributed with responsibility and regret for his behaviour but not extending to the serious indictable offence of which he has been found guilty as part of the offence upon which he is to be convicted. There is a diagnosis and recommended treatment in keeping with what I have been provided.
16. Maria Roberts provided a report on 29 June 2022. She has been treating him since 6 March 2019. She attributes him with uncharacteristic behaviour in this incident, and in the very first paragraph on p 1 of the report asserts that he has shown extensive remorse and shame. It is said that it does not appear that he planned the behaviour or intended to cause distress or harm to the victim. His personal family history is discussed in terms consistent with what I have read from the other report. The sequence of treatment by the psychologist is summarised, and beneath the heading "Impact" on the second page of the document, it is said that he appears remorseful and ashamed of the impact his behaviour has had on the victim and her family. He has reflected on how the incident has affected her. He is aware of the impact on his children and his mother and she refers to the difficulties they will face if he is incarcerated. She refers to the diagnosis of his son who is on the autism spectrum and the difficulty his son will have understanding and coping with his father being sent to gaol. It is said that incarceration will have a detrimental effect upon his recovery because of the disruption to his treatment.
17. The organisation of the name "Benevolent", the post-adoption research centre, has provided a letter. The author is a counsellor within that organisation. She wrote on 29 January 2022 advising of the opportunity to apply for adoption records by those who were adopted, as was the offender. Counselling was undertaken on four occasions in 2017, five in 2018, nine in 2019, 15 in 2020 and ten in 2021 to address the challenges experienced in his life arising from the fact of his adoption. The report asserts the feelings, reactions and life challenges are often a direct response to the developmental trauma created by the removal of a newborn baby from its mother, resulting in broken attachment, attunement, and bonding. The clients who fall within this category report feelings of abandonment, rejection and disenfranchised grief and loss and being unable to fit in with the adoptive family.
18. It is not always the case, I might add, that people who are adopted in these circumstances are so burdened. But there are those who do experience difficulties. I speak of my experience of life, not as an adoptive parent, but from what I have come to know of others who have taken that responsibility and the difficulties that some children have in their life unaware of who their biological parents might have been, and the reason why the biological parents did not want to retain custody of them. It would seem to me that on the material I have, there is ample to conclude that the challenges identified in this offender are correct, and that they have had an impact upon him through his life, and I find accordingly.
19. The next document tendered in his case is the statement of care dealing with his son. He has a strong need for structure, systems and support in his life and the absence of his father for an extended period could have a destabilising effect upon him. There was a document from FlameTree counselling and psychology written by a Don Finnegan on 1 July 2022. He speaks of the boy's diagnosis of autism spectrum disorder at ASD level 2, and attention deficient hyperactive disorder, and learning difficulties. Encouraging developments are identified. He has support in his schooling and he has active engagement in community groups involving activities such as surfing, Motocross, mountain bike riding and rugby. He has had encouraging developments with his living skills and his social activities.
20. He offender's younger brother provided a reference on 2 July 2022. He speaks of him in positive terms. He is a loyal and caring brother. They have shared many common friendships. He is a hard worker on many levels. He is said to be deeply ashamed of his actions and troubled by the impact upon the victim. The conduct is out of character. There is reference to his shared custody of his children with his ex-wife, and that the offender's primary concern is their welfare. There is reference to the offender's son.
21. His mother provided a reference specifying her age and providing information regarding the offender and his children, and the contact that the offender has with them. Their stage of life is discussed in this document. She attributes the death of his father as the cause of the offender's mental issues, as she describes them. She also writes of the challenges that his son faces. She attributes her son with remorse for his serious lack of judgement. She speaks of his loss of employment if a custodial sentence should be imposed.
22. There is another reference from a Juan Carrion speaking in positive terms of the offender at work. There is a further reference from the general manager of a mining company, where he commenced work in November last year, again speaking in positive terms of his character and his work ethic. There is another reference from someone who is an engineer at another mine. He has known the offender for some 14 years, knows his family, and again speaks in positive terms.
23. Thus, on the material I have, leaving aside the antisocial behaviour reflected in his record to which I have referred, aspects of the offender's life disclosed in those documents, I would find that this behaviour in which he engaged was by someone who should be dealt with as someone of good character in particular respects: in the context of work, and dedication to his family and care for his mother.
24. There is no question that incarceration will have a profound impact upon the offender and his family.
25. In recent times, the Court of Criminal Appeal in Totaan v R [2022] NSWCCA 75, when called upon to revisit this question in an appeal from a sentence imposed in the District Court for a federal offence or offences, noted that authority had been to the effect that only exceptional circumstances and difficulties to be experienced by an offender's family were relevant to the assessment of sentence.
26. Although the judgement deals with s 16A Crimes Act 1914, I take the guidance given as relevant to all offending, including that which is against State legislation. Having many decades experience in the criminal justice system and having seen the impact of imprisonment not only upon an offender but also upon the offender's family, the principle that one does not bring to account such considerations unless they are exceptional has always been one that has troubled me, and I am pleased to see that the Court of Criminal Appeal has addressed this question.
27. The headnote to the judgement, which I have, makes clear the decision of the Court, that asserted hardship is relevant to the assessment of sentence. Item 2 in the headnote, which is specifically not to be read as part of the judgement, is consistent with what their Honours advanced. It is now clear that the proposition that a Court imposing a sentence for a federal offence may only have regard to hardship to a family member or dependent where the circumstances of hardship satisfy the epithet of exceptional are plainly wrong and should not be followed. Similarly, authorities which have held that hardship must rise to the level of exceptional before being given a specified weight or resulting in a substantial reduction of sentence are wrongly decided and should not be followed.
28. As I say, this was a judgement concerned with s 16A(2)(b) Crimes Act 1914, but in my view, the statements of principle have application in State offences and I propose to bring them to bear.
29. The submissions made on behalf of the offender remind me of the objective seriousness of the offence, as I have earlier articulated. He maintains his position that he is not guilty of this offence and did not engage upon a sexual touching alleged of him. The subjective case is summarised in terms consistent with what I have rehearsed from the documents tendered. Prospects of rehabilitation and the likelihood of re-offending ought to be assessed as good, according to the submissions. I agree with that proposition.
30. It is conceded that no penalty other than imprisonment is appropriate, but when one looks at the statistics available for the offence charged contrary to s 112(2), it is noted that there is a broad range of offending types which challenges the use that might be made of the statistics. As I said, the serious indictable offence contemplated in s 112(2) might involve one with a penalty as low as five years extending to others with a much longer period, including life or 25 years imprisonment. Thus, the assessment of objective seriousness of s 112 must include the nature of the serious indictable offence that has been charged.
31. For the reasons I have given, and as acknowledged, this misconduct approaches middle range objective seriousness.
32. As I said, it does not follow that the standard non-parole period or one near to it should be imposed because the outcome obviously depends upon the synthesis of all the material that has been put before me. The Crown urges a view that full-time custody is required in this case, regardless of whether the sentence is one of two years or less. The Crown does not suggest a period of imprisonment that ought to be imposed, as is proper. The Crown concedes that a limited criminal history leaves him entitled to some leniency and that he should be dealt with as a person of good character who enjoys continued support. The Crown concedes the challenges that will be faced by his family, including his son, but notes that he pleaded not guilty at trial, he is not entitled to any discount for utility, and persists with his denial of wrongdoing, apart from the fact that he broke into and entered the house, as was charged.
33. To the extent that he has expressed contrition and remorse, one must conclude in the circumstances that they are qualified or limited.
34. The Crown concedes the psychological treatment upon which the offender engaged for some significant time, predating the offence. Notwithstanding that assistance, the Crown notes he nevertheless surrendered to the sexual impulse in the present case, as was found by the jury and with which I agree.
35. The Crown contends that one must be guarded about the prospects of rehabilitation. The circumstances do raise questions, but having looked at the material overall, I have come to the view that the prospects for rehabilitation are sound and I bring that to account.
36. The sentence assessment report, written on 4 August 2022, notes his circumstances as they are at the present time, his strong community support, his significant employment history, his disagreement with the police facts, so-called, claiming that he did not physically touch the victim at any time during the offence. That is not strictly accurate because he acknowledged in the evidence he gave that he touched at least to the extent of the back of his hand on her hip. He acknowledged that his approach and behaviour was inappropriate. The report suggests he appears to have minimised the serious nature of the offence, and the overall impact upon the victim who has described a much more serious episode of misconduct than that which he will acknowledge. He is assessed as having a low risk of reoffending. That contributes also to the finding that I have made about his prospects of rehabilitation.
37. I have dealt with the assessment of objective gravity. The offender was subject to bail for a significant period, as I noted earlier. He was to report to the police three days each week. He was to live at a specified address and notify of any change of address. He was not to approach any of the witnesses in the prosecution case. That continued until 25 March 2021 when the reporting was reduced to Wednesday only. The conditions were not so onerous as to be viewed as quasi-custody: see R v Quinlin [2021] NSWCCA 284, and ultimately involved limited constraint, but they are not to be ignored in the assessment of the punishment that the offender must face.
38. Relevantly, I find that there is no evidence of contrition and remorse demonstrated regarding the sexual touching, though the offender appreciates he ought not to have broken and entered the house as he did, and as I have noted, he persists in denying the ultimate offence of sexual touching. This notwithstanding and considering the antecedents and the impact of this prosecution upon him and his family, I accept the risk of further offending to be low.

THE SENTENCE

1. The purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 require comment. These are to ensure that there is adequate punishment for the offence. There must be the imposition of a gaol term because of the serious nature of this misconduct. The sentence must do what it can to prevent crime by deterring the offender and other persons from committing similar offences. Specific deterrence or personal deterrence is of lesser moment in this case, but general deterrence must attract significant weight. The purpose of sentencing includes the protection of the community from the offender. I find that to be of limited significance in this case. So too the need to promote the rehabilitation of the offender. I am satisfied that his prospects for rehabilitation are sound and, with proper assistance, will continue.
2. The offender must be made accountable for his wrongdoing and the conduct must be denounced. For him to have done what he did on this occasion was reprehensible and had little regard, if any, for the circumstances of the victim. His purpose could not have been other than for sexual gratification, without regard for her resistance and her efforts to have him cease until, in a relatively short time after the event commenced, he abandoned her and fled from the scene. The sentence must recognise the harm done to the victim and to the community by this misconduct.
3. There is ample ground to find special circumstances in this case, and I am satisfied that the custodial component, which I am about to order, should be reduced to one half of the sentence that will be imposed overall. This will allow him to continue with the counselling that might be required, subject to what is recognised as his need at the time when he is released.
4. I have assessed the sentence with regard to his circumstances and those of his family, specifically with the focus upon the length of the custodial component. I have noted that this is his first time in gaol.
5. For the offence with which he was charged and upon which he was found guilty, the offender is convicted. I specify a non-parole period of imprisonment of 18 months commencing on 9 August 2022. That will expire on 8 February 2024. I impose a further period of imprisonment to commence at the expiration of the non-parole period, that is of 18 months, to expire on 8 August 2025. Thus the sentence overall is one of 3 years with a non-parole period of 18 months commencing 9 August 2022, the non-parole period to expire on 8 February 2024, the head sentence to expire on 8 August 2025.
6. Exhibits to remain on file.
7. Note that the backup charge of sexual touching is withdrawn.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2024