R v Underwood

Introduction

1. Our community, including its Courts, are now more conscious than ever of the long-term and serious harm, both physical and psychological, which premature sexual activity can cause: R v MJR (2002) 54 NSWLR 368 at [57]. At the same time public discussion about sex, sexual information and sexual activity are pervasive in all forms of media and very accessible by the young: R v Rush [2019] NSWDC 773.
2. Public discussion about the issues relating to consent raised in these proceedings is essential. Similarly, there should be public discussion about the penalties imposed when children are subject to premature sexual activity.
3. Where premature sexual activity occurs: "It should be assumed that there is a real risk of some harm of more than a transitory nature occurring. That should be a factor taken into account when sentencing for a child sexual assault offence. It is an inherent part of what makes the offence so serious:" R v King [2009] NSWCCA 117 at [41].
4. It is a serious offence to sexual touch a child aged under 16: s 66DB(a) Crimes Act.
5. Section 66C Crimes Act, criminalises any act of sexual intercourse with a child. The age of the child is a critical factor. The younger the child the more serious the offence generally, but the circumstances in which these offences occur covers a wide variety of activity. It is a very serious offence to have sexual intercourse with a child knowing he or she was not consenting.
6. Section 61J(1) Crimes Act offences cover a wide range of activity. The form of sexual intercourse is not determinative of penalty. A Court looks to what occurred and all the surrounding circumstances.
7. When an offender is still young and immature but an adult in the eyes of the law, their ability to make good decisions can be significantly constrained. This is particularly so if they also have an intellectual or cognitive impairment. Accordingly, a young offender's moral culpability should not always be measured by the same standards as those that apply to mature adults: DM v R [2005] NSW CCA 181; Hearne v R [2001] NSWCCA 37; KT v R [2008] NSWCCA 51; Clarke-Jeffries v R [2019] NSWCCA 56.

A trial at Wollongong District Court

1. The offender, Underwood, and the complainant Fleur are cousins. Fleur, then aged 15, lived with extended family in a suburb of Wollongong. Their home had a spare bedroom.
2. Fleur has symptoms consistent with features of Autistic Spectrum Disorder (ASD), which presents as selective mutism and separation anxiety.
3. Underwood, given his long history of learning, behavioural and emotional regulations difficulties had been diagnosed with a mild intellectual disability and Asperger's Syndrome. That diagnosis was recently revisited. He is now said to have behaviours consistent with a diagnosis of the neurodevelopment disorder ASD, with specifier level 1 (requiring support), with accompanying intellectual impairment.
4. In December 2020, Underwood, then aged 20, started staying the nights at Fluer's home. This arrangement continued into July 2021, when COVID restrictions began. The two cousins spent quite a bit of time together. Underwood would take Fleur for drives. They would also go fishing. He would regularly spend time in her bedroom. Family members noted their relationship was close.
5. In July 2021, her mother looked through Fleur's room. On an old phone she saw a photo of the accused in his underwear and some inappropriate messages between the two cousins. She also found a pregnancy test in the bin in the bedroom. Later that day she asked Fleur, "What's going on?" Fleur told her that Underwood had touched her and tried to have sexual intercourse with her and that he had made her do it. Her grandmother was in the room at one point and also had a brief conversation with Fleur about what had happened.
6. That day Fleur's parents took her to Lake Illawarra Police Station. Arrangements were made for a video recorded interview, which took place on 21 August 2021. That interview was supplemented by additional interviews.
7. Fleur was able to detail three specific instances when criminal sexual activity took place. The first-time sexual intercourse occurred was on 19 March 2021, the evening of their uncle's funeral. The second was on Good Friday, 2 April 2021. With the third, the last act, in July 2021 just before COVID restrictions prevented Underwood from continuing to stay at that house.
8. Underwood was arrested on 1 September 2021. He came for trial at Wollongong District Court on 17 April 2023. The Indictment set out six counts:

Facts for sentence

1. A sentencing judge must determine the facts for sentence. The relevant principles were set out in R v Isaacs (1997) 41 NSWLR 374 at [377] to [378].
2. Facts found for the purpose of sentencing must be consistent with the jury's verdict.
3. A finding of fact adverse to an offender must be established beyond reasonable doubt.
4. There is no "general requirement" that an offender should be sentenced upon a view of the facts, consistent with the verdict, which is most favourable to the offender.
5. Matters in mitigation must be established on the balance of probabilities. Matters in aggravation of penalty must be established beyond reasonable doubt: Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54. A Judge who is not satisfied of some matter urged in plea on behalf of the offender, does not have to sentence the offender on the basis of that contention unless the prosecution prove the contrary beyond reasonable doubt: Olbrich at [24].
6. If the offender's degree of culpability is reflected in an element of the offence, I am bound by how the jury, expressly or by necessary implication, decided that issue. But where, as is commonplace, the issues resolved by the jury's verdict do not include some matters of potential importance to an assessment of the offender's culpability, I am obliged to determine them: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 joint judgment at [5].
7. The prosecution's position is that I would accept the complainant's version of events and that the verdict on Count 3 simply shows that the jury gave Underwood the benefit of the doubt as to his state of mind.
8. The prosecution submit that I would find, as an aggravating factor, that the accused knew that the complainant was not consenting to Counts 4 and 5 rather than that he was reckless: Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [192].
9. The prosecution also submit that I would find that the offender engaged in, as an aggravating feature, "grooming". This raises a question about the nature of the "relationship" between the cousins.
10. The defence submit that I would not accept important details of the complainant's account. They say that some of the prosecution's propositions cannot be established beyond reasonable doubt and that, on balance, the following propositions, which were put at trial, can be reconciled with the verdicts: 1. That the offender and the complainant had mutually entered into a "boyfriend/girlfriend" relationship from around the start of 2021, continuing until just before complaint was first made; and 2. That whenever they engaged in sexual touching or sexual intercourse, other than the those set out as Counts 4 and 5, such acts involved mutual consent; and 3. That so far as Counts 4 and 5 are concerned the offender's state of mind was no more than reckless.

Fact finding

1. After reviewing the evidence, I am prepared to find that Underwood, given his intellectual limitations may have thought Fleur was his girlfriend because of his deficits in social cognition: Report Mr Gorman, Exhibit 1, tab 1. However, I cannot accept propositions (1) and (2) made by the defence, which are premised on any such "relationship" having a "consensual" sexual aspect.
2. I accept that the two were friendly, very friendly. They spend time together, often alone. He was attentive to her and she to him. At times, as revealed by evidence at trial, she was happy to spend time with him. Most of his interactions with her were neither hostile, demeaning or threatening, but on her account some were.
3. It was suggested at trial that the number of text messages and other communications and the content of some texts exchanged between them supported a proposition she was an active participant in a sexual girlfriend-boyfriend relationship: Exhibits 1 - 6. That evidence however does not cause me to doubt the complainant's account about the nature of any "relationship" between her and Underwood.
4. It is important to note that there was no evidence at trial or on sentence to support the defence suggestion there was a mutually consensual sexual relationship. These propositions were put to the complainant in cross-examination and rejected by her. Her evidence was clear and unshaken. It was not a sexual "relationship". There was no mutual consent to sexual activity. She did consent to what he did to her.
5. The relationship between the two was not peripheral at the trial. The details of it were critical to both the defence and prosecution case. If the "relationship" was, as the defence submitted at trial, her account could not have been accepted by the jury. To so find would be inconsistent with her evidence and the jury findings.
6. In any event, when a sentence is being determined, issues about consent, while not immaterial, are of limited relevance: see Nelson v R [2016] NSWCCA 130, discussed below at 84. A child cannot consent to sexual intercourse or sexual touching. The prosecution has no obligation to prove absence of consent for the offences the subject of Counts 1, 2 or alternative Count 3.
7. If I were to sentence on the basis that they had proved lack of consent beyond reasonable doubt for alternative Count 3 I could fall into error: The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

Objective seriousness

1. Mr Fraser submitted that "relative to other offending of their type, each offence falls within the low range of offending, albeit not at the bottom of the range."
2. Ms Hughes, for the Director of Public Prosecutions, agrees so far as Counts 2 and 5 are concerned, but submits Count 4 was a very serious example of the offence, and is above mid-range. She also submits that Count 1, was a serious example of the offence and that Count 3 falls in the middle of the range
3. Judges have an obligation to resolve controversies between the parties: Owen v R [2022] NSWCCA 214 at [49]. But I fall into the class of judges who derive little benefit from arbitrary categorisation of offending on a notional range that has no agreed points of reference. The use of descriptors such as those suggested adds nothing of value to that process: DH v R [2022] NSWCCA 200; Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at [354]; Khoury v R [2011] NSWCCA 118.
4. In some cases, an attempt to locate the objective seriousness of an offence on a hypothetical range of seriousness can be unhelpful: Paterson v R [2021] NSWCCA 273 at [32] to [33]; Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88]. Fine distinctions based on artificial segmentation of a spectrum are unnecessary and apt to confuse: Decision restricted [2023] NSWCCA 10 at [52].
5. I am required to identify all the factors relevant to the objective seriousness of an offence. I am not obliged to utilise the concept of mid-range offending or to nominate a point on the scale of seriousness by reference to a notional mid-point. Rather, I must make an assessment of objective seriousness of an offence in light of the entirety of the facts and circumstances in question. I do so as part of the process of instinctive synthesis toward the imposition of a proportionate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
6. A sentence should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at 354; [1989] HC 33; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [125].
7. Factors relevant to my assessment of objective seriousness include:

The offender's mental state and objective seriousness

1. When the matter came before me on 21 July 2023, Mr Fraser submitted that the offender's neurocognitive impairments, revealed in the report of Mr Gorham, were of particular relevance to my objective circumstances: Exhibit 1, tab 1. Ms Hughes took the position, fairly, that that evidence needed to be tested.
2. Judges when sentencing must synthesise all relevant factors. Judges should not engage in a staged approach: Markarian at [30] and [31]. As was noted in joint judgment in Markarian v The Queen: "Sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison." Although in a simple case, "indulgence in arithmetical deduction by sentencing judges is not absolutely forbidden:" at [39].
3. As Justice McHugh explained the process in Markarian: at [51] to [52]. A judge must identify all the factors that are relevant to the sentence, discuss their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case. Only at the end of the process does the judge determine the sentence. A judge does not first determine a sentence by reference to the "objective circumstances" of the case and then increase or reduce this hypothetical sentence incrementally or detrimentally by reference to other factors, usually, but not always, personal to the offender.
4. That approach still requires an objective assessment of the seriousness of the crime and the matters causally related to it. All factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). They include factors personal to the offender that are causally connected with or which materially contributed to the commission of the offences such as; motive or emotional stress, provocation or non-exculpatory duress and the existence of a mental disorder or intellectual impairment: Paterson v R at [29]; Tepania v R [2018] NSWCCA 247 at [112]; Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at [324] to [325]; Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [171] to [172].
5. A judge must also consider the "moral culpability" of the offender; that is, their moral blameworthiness for the offence. An assessment of an offender's moral culpability does not form part of the determination of the objective seriousness of their offending: DS v R; DM v R [2022] NSWCCA 156. A determination of moral culpability can involve a consideration of a wider set of subjective factors affecting an offender than an assessment of objective seriousness: DS v R; DM v R at [63] to [96].

Sexual touching

1. Fleur was in own home, where she was entitled to feel safe and secure. Underwood knew she had trouble expressing herself. He was older and working. He inserted himself into her life and he created situations where they could spend time together. Underwood exploited the complainant for his own sexual satisfaction.
2. While he may have justified his behaviour to himself by a belief they were in a relationship, he was aware what they were doing was wrong both because of their family relationship and their age difference. He achieved his sexual ends by pressure and persistence.
3. Count 1 involved skin on skin contact with the complaint's genital area and is such to be regarded as serious.
4. Count 2 involved his rubbing against her while both were clothed and can be regarded as less serious.
5. From Underwood's perspective his behaviour may have seemed normal boyfriend / girlfriend behaviour, but his actions demonstrated no concern for Fleur or took into account her age.

Sexual intercourse without consent

1. There is no hierarchy of seriousness of the kinds of sexual intercourse: R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [23] to [25]. However, here I regard penile-vaginal penetration seriously because of the associated risk of pregnancy or disease: KAB v R [2015] NSWCCA 55.
2. Again, the age difference must be considered. Again, Underwood exploited the complainant in her home for his own sexual satisfaction. The pressure placed on her must be considered, as must the acts, the degree of physical contact, the time they took. All are very relevant. While many aggravating features commonly associated with such crimes are absent, their absence does not mitigate.
3. Count 4 involved, additional violence, degrading comments, and was thus a more serious example of its type, in comparison to Count 5. The evidence before the jury indicated that Fleur made it clear she did not consent.
4. Even when I make full allowance for Underwood's neurodevelopment disorder, I find beyond reasonable doubt, from what he said and did, that he knew she was not consenting. To find otherwise would be to go behind the version of events accepted by the jury.
5. This offence was still a serious example of its type, although obviously less serious than an offence committed by someone with full command of his faculties.
6. Count 5, although accompanied by some demeaning comments, was not accompanied by factors other than those identified above. Given the complainant's evidence, and the evidence relating to the offender's neurodevelopment disorder, I could not find beyond reasonable doubt that on this occasion Underwood actually knew Fleur was not consenting. Accordingly, this offence must be treated as significantly less serious than Count 5 or similar offences committed by others without Underwood's neurodevelopment disorder.

Sexual intercourse with a child - alternative Count 3

1. Even where a complainant is under 16, before a s 61J(1) Crimes Act sexual assault allegation can be proven, the prosecution must prove beyond reasonable doubt that they did not consent, and that the accused knew they did not consent. The jury gave Underwood the benefit of the doubt on Count 3 and he must have the full benefit of his acquittal.
2. Lack of consent and lack of knowledge of however is not an element of the alternative s 66C(3) offence. While some may regard the age of 16 as arbitrary, the law is, and has for over a century, been clear and unambiguous; a person aged below 16 years is incapable of consenting to sexual contact: Crimes (Girls' Protection) Act 1910 (NSW); Crimes (Amendment) Act 1924 (NSW); CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25.
3. Children under 16 are deemed unable to give informed consent to sexual intercourse, no doubt because it is understood they may not appreciate the nature and consequences of the activity: Nelson at [25].
4. The complainant was aged 15, relatively close to the age of consent. While in many such cases a custodial sentence would not be justified, as this act formed part of a pattern of behaviour involving the offender creating a situation where the complainant felt obliged to do as he asked, and where he acted without apparent concern for her wishes and ignored her complaints of pain, this offence was so serious that the imposition of a custodial sentence is required.

Victim impact

1. In her statement to the Court, Fleur spoke of the losses she suffered following the revelation of the crimes committed against her. She said some friends had turned their backs on her and she had had to leave school because she could not handle the pressure. She has trouble relaxing. She has lost trust in people. She is angry and feels, shame, worry and anxiety. She has trouble sleeping and is scared whenever she hears or sees a car that sounds or looks like Underwood's. She misses the person she used to be.
2. Fleur's victim impact statement drew to the offender's, the Court's and the community's attention the damage caused to her. The statement attests to harm of the kind that might be expected from the offences here.

Maximum penalties

• Sexual touching, s 66DB (a) Crimes Act, has a maximum penalty of 10 years imprisonment.
• Sexual intercourse without consent, s61J(1), Crimes Act, has a maximum penalty of 20 years imprisonment and a 10 year standard non-parole period.
• Sexual intercourse with a child under 16, s66C (3) Crimes Act, has a maximum penalty of 10 years imprisonment.

1. Careful attention to the maximum penalties, and where applicable, standard non-parole period's is required. I am required to give content to the standard non-parole period. I am required to assess objective seriousness wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. However, as the High Court in Muldrock made clear, neither can I engage in a staged approach to sentencing: Muldrock at [28]. That assessment must all be synthesised along with other relevant matters: see 52.
2. The High Court noted that "meaningful content cannot be given to the concept by taking into account characteristics of the offender … The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending": Muldrock at [24].
3. However earlier when discussing the decision of the NSW Court Criminal Appeal in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168, the High Court distinguished the "circumstances of the offender" from the expression "objective seriousness". They said that that the term "objective seriousness", was "not to be narrowly confined. Rather, it was to be understood as taking into account the physical acts of the offender and their consequences, together with circumstances personal to the offender that are causally connected to the commission of the offence …" which included, "mental illness or intellectual disability (where the latter are related to the commission of the offence) as such circumstances:" Muldrock at [22]. The Court did not say this aspect of the reasoning in R v Way [2004] NSWCCA 131;60 NSWLR 168 showed error.
4. Writing extrajudicially, Justice RA Hulme reviewed some of the approaches taken to this conundrum and noted that the Court terminology was "with respect, opaque. Rhetorically, he asked "how can the 'nature of the offending' be assessed without reference to matters causally connected to it?": "After Muldrock - Sentencing for Standard Non-parole Period Offences" (2012) 24 New South Wales Judicial Officer Bulletin 10.

Case for the offender

1. I have the benefit of a report from Mr Gorham, a neuropsychologist and forensic psychologist. Mr Gorham Gave evidence this morning. I have a number of references from family members who all speak to Underwood's good character and how he has throughout his young life achieved much despite his intellectual difficulties: Exhibit 1.
2. Mr Gorham succinctly reviewed a number of reports by psychologists and paediatricians. He noted that at the time of offending Underwood had a number of significant stresses in his life.
3. Although Underwood qualified for a disability support pension when aged 16, with job support through Centrelink, he was able to obtain work. He lost that job because he took too much time off during the period of offending.
4. Mr Gorham noted that while the strict routines of gaol can be a source of stress and anxiety for those with ASD. He said Underwood appeared to have adapted well to the routines being enforced. He is in protective custody, but he has been kept busy doing physical training, talking with other inmates, and watching television. He has regular family visits and telephone contact.
5. He has not yet had a mental health review or received and treatment, but he has spoken once to a psychologist. He is not commenced any programmes but plans to do so once sentenced.
6. Underwood is in good physical health, but testing revealed symptoms associated with impaired social functioning and a range of autism spectrum disorders, particularly his social awareness, his social cognition, social communication, and social motivation. He has restricted interests and demonstrates repetitive behaviours. All require support.
7. Underwood also has social cognition problems and poor problem solving skills. This is not surprising given his long history of learning, behavioural and emotional regulation difficulties.
8. He has clinically significant deficiencies in reciprocal social behaviour. Although there is a history of a diagnosis of intellectual disability, Mr Gorham's opinion was that the ASD diagnosis best applied.
9. Mr Gorham said that Underwood's risk on the STATIC scale for sexual reoffending fell in the average range, but he listed a number of dynamic risk factors that need to be addressed in order to minimise risk of reoffending. This is particularly so given Underwood's denials of offending and his belief that he was involved in a consensual relationship, a belief Mr Gorham describes as a "state of cognitive dissonance".

Intellectual deficits

1. The relevant principles that apply to a person suffering a mental illness were succinctly summarised by the Chief Judge at Common Law, McClelland in DPP (Cth) v De La Rosa [2010] NSWCCA 195 at [177]. Intellectual disability and other cognitive impairments attract the same application of proper principle: R v Anderson (1981) VR 155.
2. Given the principles in relation to objective seriousness and moral culpability, Justice McClellan's first point does not fit precisely with the current practice of distinguishing the concepts of objective seriousness and moral culpability. What he said thus needs to be revisited. He said at [177]: "(1) [Principle recognises that] where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently, the need to denounce the crime may be reduced with a reduction in the sentence."
3. Another way of putting the principle is; If an offender's mental or intellectual state contributed to the commission offence such that the objective seriousness of the offence was reduced, they can be regarded as less culpable than a person who committed such a crime while in full command of their faculties. If so the principle of general deterrence, that is, retribution that lets others know the sort of punishment that will be inflicted, in the hope of deterring them from doing what this offender did, is given less weight.
4. His Honour went on to say: "(2) [The condition] may also have the consequence the offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise been imposed. "(3) It may mean that the custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person, the length of the prison term or conditions under which it is served may be reduced. "(4) It may reduce or eliminate the significance of specific deterrence."
5. His Honour also noted, "That a person's mental illness" (or in this case intellectual incapacities) "may mean they present more of a danger to the community with greater weight being given to specific deterrence or community protection".
6. Principles (1), (2), (3) and (4) apply here, although there remains some need to take into account the principle of specific deterrence, any term of imprisonment could achieve that purpose so far as Underwood is concerned. Nothing in the evidence raise any concerns about future danger to the community.

Prior good character

1. Underwood has never been in trouble with the police or Courts before. Unless there is a statutory exception, a person's prior good character must be taken into account on sentence: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21. That exception does not apply here: s 21A (5A) Crimes (Sentencing Procedure) Act 1999. For some types of offences, prior good character, while it must be taken into account, carries less weight than for others. Much will depend on the circumstances of the offending. For example, a pattern of repeat offending over a period during the course of an ongoing relationship between the offender and a child - a relationship which was deliberately fostered by him for his own sexual gratification: R v PGM [2008] NSWCCA 172 at [43] to [44].
2. This case is not as clear cut as PGM. There was a lot more than a singular desire to achieve sexual gratification in the interaction between the two young people here.
3. The offender, although young, has been able to work and foster good relations with other family members. His referees speak of a man who has struggled since a child with learning and communications skills. He is described as loving and generous by nature, as a man who has tried always to do the right thing, sociable by nature, despite his disability, "a fine young man".
4. While on bail he gave a lot of support to his grandparents. He gives his time to help others.
5. He has never broken the law before. His offending in the context of his living in the same home as the complainant and his wrong belief she was his girlfriend is unlikely to be repeated. His prior good character requires some reduction in sentence. Despite his conviction and the obvious disruption these events have caused, many family members offer their continuing support.

Rehabilitation

1. Every sentencing exercise has at its core, the need to protect the community. Courts impose sentences hoping to prevent future crime by deterring the offender and others from committing similar offences. Other purposes of sentencing include, to protect the community from the offender and to promote the rehabilitation of the offender.
2. If the material before the Court establishes on balance that progress toward rehabilitation can be made the Court can proceed with some confidence in extending such leniency as the law allows, commensurate with the need to consider and apply other countervailing factors.
3. The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits, such as Underwood: Yardley and Betts v R (1979) 22 SASR 108 applied in Blackman and Walters v R [2001] NSWCCA 121.
4. As the joint judgment of the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at [148] noted: " … sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

Count 3 - offer to plead guilty

1. So far as alternative Count 3 is concerned, it is accepted that; the offender made an offer recorded in a negotiations document to plead guilty to a s 66C(3) offence. That offence was not the offence, the subject of the proceedings, when the offer was made. It was not accepted by the prosecutor. The offer was not subsequently withdrawn, and the offender was found guilty of the different offence: s 25 E(1) Crimes (Sentencing Procedure) Act.
2. The prosecution submit however that the discount should not be applied, or should be reduced, because the utilitarian value of the plea of guilty has been eroded by a dispute as to facts that was not determined in favour of the offender. They say I will make that determination and either, not apply the sentencing discount, or apply a reduced sentencing discount: s 25F (4) Crimes (Sentencing Procedure) Act.
3. Here, as I have earlier determined consistent the verdicts in each matter, indicate the jury must have rejected the defence assertions that as a matter of fact (if not law, as at law a child cannot consent) the complainant consented to the acts of sexual intercourse. That important fact cannot be determined in the offender's favour. Nevertheless, a plea offer was made. Such offers must be encouraged. Some discount must be allowed. I propose to allow 15%.

Submissions

1. I am indebted to Ms Hughes and Mr Fraser for their comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters raised but I have considered and addressed them in coming to my determinations as to the appropriate sentence in each matter.
2. Ms Hughes originally submitted that I would find Underwood (despite his diagnosed condition) was acting with knowledge of the gravity of his actions. She now accepts that finding con find some causal connection between his disability and the offending but says any moderation to the weight to be given to general deterrence need not be great.
3. She concluded her written submissions by noting that only a custodial sentence could give properly take into account all the purposes of sentencing including, in particular giving due recognition to the harm suffered by the complainant. She said that ultimately the Court must impose a sentence that is reflective of the serious criminality engaged in by the offender's offending which showed, "a humiliating disregard for the victim, her body, and her dignity".
4. Mr Fraser drew my attention to the importance of rehabilitation and submitted in this case it should take precedence over a deterrent or retributive penalty. He pointed to the matters in mitigation of punishment I've outlined above.

Structure of the sentence

1. As I will impose an aggregate sentence. Accordingly, I am required to indicate an appropriate sentence for each offence.
2. A sentencing judge faces a number of practical problems when sentencing for multiple offences. The simple arithmetical addition of the sentences appropriate for each individual offence considered separately will often result in an ultimate aggregate that exceeds what is called for in the whole of the circumstances: Van Ryn v R [2016] NSWCCA 1 at [228] to [230].
3. A sentencing judge must evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, determine what, if any, downward adjustment is necessary in the aggregate sentence in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ).
4. Each count involved discrete acts of criminality however, each count had some common features and the purposes of sentencing apply to each and those purposes overlap. Each requires some separate punishment and need to reflect on the period over which the offending occurred; requires some accumulation.
5. While the indicated sentences should be partly cumulative, the aggregation of all of the sentences must be a "just and appropriate measure of the total criminality involved": Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at [307] to [308] per McHugh J; Cahyadi v R [2007] NSWCCA 1; Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 at [62] to [63].
6. The evidence relating to; the offender's youth, disability and need for assistance with his underlying problems from a psychologist by treatment that could only be delivered in the community, all provide a basis for a finding of special circumstances. Further, Underwood will need help adjusting to normal community life on release. He has strong prosocial support and too long a sentence may break those important connections. Too long a period in prison might increase the prospects, given his disabilities, of being influenced by antisocial prisoners with whom he must share a cell.
7. This is a matter where the proportion of the sentence that must be spent in custody should be reduced and reduced significantly. However, in so finding I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Synthesis

1. Not every matter has to be, or can be, fitted into categories. Human behaviour and characteristics are too varied. The sentencing exercise involves, "a synthesis of competing features, which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time …": Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14.
2. Each victim of sexual violence is in need of, or deserving, of such protection and vindication as the criminal law can provide. The proper role of the criminal law is not limited to the utilitarian value of general deterrence. Sentences must, by their severity, also seek to vindicate the dignity of each victim of sexual violence, to express the community's disapproval of the offending: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 [52] to [58].
3. Consistent application of principle is of great importance in the sentencing exercise. Courts are required to consider the purpose of sentencing concerning general deterrence, particularly where the crimes involved some premeditation and occur over some months.
4. Here there must be punishment and punishment involving a term of imprisonment, but the offender and the community interest in his rehabilitation, can take greater prominence than in many other cases involving similar crimes. Where two highly relevant considerations are so totally incompatible, as are the two considerations involved here, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative: Hopkins v R [2004] NSWCCA 105 at [22].
5. For the reason explained above, Underwood does not bear equal moral responsibility with one who does not have his disadvantages. He had fewer emotional resources to guide his behavioural decisions. That does not mean that he bears no moral responsibility, but that his background must be taken into account: R v Millwood [2012] NSWCCA 2 at [69]. Human sympathy would say, "Well, you would not expect him to get the same sentence as someone else": Engert v R (1995) 84 A Crim R 67 (Allen J).
6. Accordingly, I find that less weight need be given to principles of general deterrence. The need to denounce these crimes can be reduced with a reduction in the sentence. Although, as I indicted earlier, specific deterrence principles still have a role to play.

Orders

1. The sentence is to date from 19 April 2023 to take into account time served. As an offer was made to plead guilty to Count 3 while the matter was in the Local Court, the penalty for that offence must be reduced by 15%: see [121] above. I will take care that the process of accumulation does not erode that benefit. The non-parole periods specified reflect a finding of special circumstances: s 44 Crimes (Sentencing Procedure) Act 1999.
2. I indicate the following sentences:

• Count 1 - 9 months imprisonment.
• Count 2 - 6 months imprisonment.
• Count 3 (alternate) - 1 year 2 months imprisonment.
• Count 4 - 4 years imprisonment. Non parole period 2 years 1 month.
• Count 5 - 3 years 6 months imprisonment. Non parole period 1 year 10 months.

1. There will be an aggregate sentence of 5 years 8 months imprisonment. It will commence on 20 April 2023.
2. There will be a non-parole period of 3 years. Underwood will be eligible for consideration for release to parole on 19 April 2026. The parole period is 2 years months commencing on 20 April 2026.
3. The sentence will end on 19 December 2028.

Crimes (High Risk Offenders) Act 2006 (NSW)

1. I must advise you, Mr Underwood, of the existence of Crimes (High Risk Offenders) Act. It applies to "serious offences" including (two of) the offences for which you have been sentenced. Your legal representatives can explain in more detail the significance of this legislation to you. It means is that you could be subject to executive action after your non-parole period expires and after the sentence expires.
2. That executive action could, if an order is made in the interest of the community, mean that you could be detained or subject to conditions after you have served your sentence; but it is not a matter that I can take into account in mitigation: ss 5A, 25C Crimes (High Risk Offenders) Act.

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