District Court New South Wales Medium Neutral Citation: R v Hasna [2020] NSWDC 947 Hearing dates: Wednesday 1 July 2020 Date of orders: Tuesday 7 July 2020 Decision date: 07 July 2020 Jurisdiction: Civil Before: Tupman DCJ Decision: The offender is convicted on both offences. The offender is sentenced to a non-parole period of 2 years and 3 months with parole thereafter of 2 years, giving rise to an overall term of imprisonment of 4 years and 3 months. Form 1 offence taken into account when sentencing for count 1. Catchwords: CRIME — Child sex offences — Indecent assault — Circumstances of aggravation — Two substantive counts and one Form 1 offence — One count below midrange of objective serious — One count at middle of the range of objective seriousness — Sole victim was 12-year-old male — Offender was almost 50 years old — Offending behaviour occurred in a men's toilet cubical in the public toilets at a shopping plaza — Offender was cruising for a sexual encounter and followed victim into toilet block — Victim not physically injured but suffers an emotional impact — Victim Impact Statement taken into account — Offender comes from traditional family and has opened and operated a number of restaurants and food retailers — Offender has experienced prior physical health issues and existing mental health issues — Offender has no prior criminal convictions — Offender has very good prospects of rehabilitation. Legislation Cited: The Crimes Act 1900 (NSW): s 61M(2) The Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 25AA Category: Sentence Parties: Regina (The Queen) Hasna (The Offender) Representation: Counsel: Mr. D. Dalton SC for the Crown Mr. G. Harrison for the Offender Solicitors: Ms. C. Robinson for the Crown Mr. J. Nguyen for the Offender File Number(s): 2017/00121321 Publication restriction: Section s 578A of the Crimes Act 1900 (NSW) applies in this matter. Judgment 1. HER HONOUR: This is a sentence judgment in the matter of Fouad Hasna. The offender is before the Court for sentence following his pleas of guilty on indictment dated 2 October 2019, to two counts of aggravated indecent assault. They are specifically the following: Count 1: That on 22 April 2017 at Bass Hill, the offender indecently assaulted the known victim who was then under the age of 16, namely 12. Count 2: A further charge in identical terms of aggravated indecent assault on the same complainant on 22 April 2017. 1. These offences are both contrary to s 61M(2) of the Crimes Act 1900 (NSW) then in force which carries a maximum penalty of 10 years imprisonment. There is a standard non-parole period of 8 years. 2. The offender asks that when sentencing him for count 1, I take into account an additional offence to be found on the schedule to a Form 1 signed by him and on behalf of the DPP and exhibited in these proceedings. It is a further offence contrary to s 61M(2), that is, an offence of aggravated indecent assault involving the same victim at the same time on 22 April 2017. 3. He was committed for trial to this Court on these and another more serious charge. There had been negotiations in the Local Court about potential pleas and some correspondence about this is tendered by the DPP but no pleas were entered in the Local Court. The trial in fact commenced with the prerecording of the complainant's evidence in May 2018 pursuant to the Child Sexual Offence Evidence Pilot. The balance of the trial was then listed for 22 October 2018 but vacated because of late service of some expert evidence sought to be relied on by the defence. It was then listed for 24 June 2019 but again vacated because of a medical issue involving the Crown Prosecutor. It was then listed for trial to commence on 30 September 2019 where it came before me as the list judge that day. I was advised there were some further negotiations in place which may avoid the need for a continued trial. 4. The indictment now before me was presented on 2 October 2019 and the accused pleaded guilty to the two counts asking that the additional offence be taken into account when sentencing for count 1. These are therefore late pleas of guilty in the circumstances. I note that there was an offer to plead guilty to an offence in the Local Court but, having read the correspondence about that which has been tendered, it was not a realistic offer of a plea of guilty. It was in fact an offer to plead guilty to a much less serious offence than any of the matters for which I now sentence him. 5. There is however a utilitarian value in the pleas, but it is limited. A full jury trial estimated at 5 to 7 days has been avoided and there has been the certainty of conviction which must be of some comfort to the victim but nonetheless he had to give evidence. Fortunately, that evidence was given by way of a pre-recording as part of the Child Sexual Offence Evidence Pilot with the assistance of an intermediary and in circumstances where, as is inherent in that Program, the Court would have taken steps to ensure that the process was as unintrusive and comfortable as possible for the complainant. There should be a discount to reflect the utilitarian value but because of the timing of the pleas it must be towards the bottom of the range. Both the offender and the Crown submit that a discount of 10% would be appropriate and I will adopt that course as a result of the joint submission, whilst noting that if this had been a matter covered by the Early Appropriate Guilty Plea Scheme, the maximum discount available would have been 5%. For a number of reasons, it has then taken a considerable period of time to be finalised and now finally comes to sentence today. Facts 1. There is an Agreed Facts document before the Court and from that I accept that at about 8pm on 27 April 2017 the victim of these offences went to the public toilets at the Bass Hill Plaza. He was a 12-year-old boy at the time, about to turn 13 in May 2017. He was working at the time in a way that is a little hard to understand, but nonetheless working at the time at a food outlet in the Bass Hill Plaza, despite his young age. The offender was at the Bass Hill Plaza at the time and in fact had gone in and out of the public toilets there twice between 7.58am and 8.03pm. After walking out of the toilet, a second time he saw the victim within the Plaza walking towards the toilet. They passed each other at about 8.03pm walking in opposite directions. The offender stopped walking and turned to look in the direction of the victim. The victim walked into the toilet at about 8.04pm and the offender, who had turned around then walked into the toilet for the third time about a minute afterwards, that is, about 8.05pm. These are the agreed facts. 2. There have been some CCTV stills tendered on behalf of the offender which support some of this. There are some portions missing, namely there are no stills tendered between 8.02pm and 8.04pm. 3. It may be that the CCTV footage shows nothing of significance, however, the images between 8.05.08 and 8.05.14 show the offender approaching the toilets after the victim had gone in and indicate him, apparently, speaking on the phone. His phone records were tendered by the Crown in due course. I accept from those that at 7.45pm, he had a nine minute, 19 second phone call with a person named Joe. 4. The offender has given evidence, ultimately, in these proceedings and from that, what he said to others and his phone records, I accept that he was on his way to meet his friend Joe who lived close to the Bass Hill Plaza. As I said, his phone records indicate that he had a 9 minute, 19 second phone call with the person who I accept was his friend Joe at 7.45pm. I accept from the combination of evidence that there were probably some arrangements then about the timing of their meeting, perhaps with Joe indicating that he might be a little late. The conversation, however, must have been about something a little more than that given that it lasted almost 10 minutes. Working from these phone records then, the offender must have arrived at the Plaza no earlier than 7.55pm. He did not use his phone again until 8.24pm when he sent Joe a text saying that he was outside and I infer from that, that the offender was outside Joe's house by 8.24pm. He did not use his phone to make or take a call, or make or receive a text, therefore, between 7.55pm and 8.24pm. 5. He was not, in fact, using his phone when walking down the corridor in the direction of the toilets albeit that he had it to his ear. He was pretending to use his phone. He gave evidence last week and raised, I understand for the first time at least in relation to this topic, that he was listening to something on his phone and walking down the corridor towards the toilet where the victim had just gone. He also, in response to questioning about why he had his phone to his ear, raised the spectre of his having had an ear infection and today there have been stills tendered showing that he was using a tissue earlier in the evening, but he was not using a tissue at 8.05pm. He had his phone to his ear. 6. I do not accept his evidence that he was listening to something when he was walking down the corridor. It does not ring true and has the appearance of being given to meet the evidence of the phone records which were tendered a little later in the proceedings by the Crown. 7. I accept the Crown submission that he was, in fact, pretending to use his phone by putting it to his ear, to give the appearance of normal behaviour and prevent any suspicion that he might be approaching the toilet with the intention of engaging in sexual behaviour inside the toilet. 8. I accept that, in fact, this is what he was doing, and he has admitted to that in the evidence he gave in this Court last week. To use the vernacular, I accept that he was 'cruising'. He saw the victim, thought the victim was interested in some sexual contact with him and followed him into the toilet with that expectation, pretending to speak on his phone to deflect any adverse appearances. 9. He has given evidence that he only called into the Plaza because he had diarrhoea and needed to use the toilet. He has also told his psychologist, Ms Howell, that and whilst he has also more recently admitted that he was, in the vernacular, 'cruising' and present there with a hope of engaging in some sexual behaviour in the toilets, he has insisted that he was also there because he was suffering from diarrhoea and had been suffering from diarrhoea for a day or so. 10. The only objective evidence there is in relation to that does not sit well with that assertion. It's certainly not the original assertion that that was his only reason for visiting the Plaza. He had never been to the Bass Hill Plaza before, did not know whether or not there was any public toilet although more probably than not, would have expected there to be one and what is more, his urgent need to attend did not seem to have stopped a 9 minute, 19 second telephone call with his friend almost immediately beforehand. 11. I do not dismiss the possibility that part of the reason that he was there was because of suffering from some form of diarrhoea but it was, in my view, not his primary reason and more recently, the evidence he has given is that he was, in fact, hoping to engage in sexual contact with another man whilst inside the toilets at the Bass Hill Plaza. 12. The offender has given evidence and also told others that he believed the victim gave him a sexual look when he saw him in the Plaza before the victim headed towards the toilet, which he read as the victim's being interested in having sexual contact with him. He said that this happened in the general Plaza area near the toilet corridor and that was the reason why he followed him into the toilet. He told the police something similar on the day of his arrest, using the term "mysterious look" albeit at the same time denying any offending and attempting to distance himself from the offences. 13. I do not accept that the victim did any such thing, but I do accept that the offender thought that this was the case. Of all of the evidence he has given, this is one of the only two parts which have been consistent since the day of his arrest. He now admits that he seriously misread the situation and I accept that the victim did not do any such thing, at least on the evidence before me. The offender however thought he did and told the police that. This is not a recent invention on his part. He has maintained that position both to Ms Howell and in the evidence that he gave. Whilst it is not true, I accept that this is what he perceived at the time and is the reason he followed the victim into the toilet, where he intended to or hoped to have sexual contact with him, which he believed at least initially, would be consensual sexual contact with an adult male. 14. The other area of evidence that has been consistent since the day of his arrest is the evidence he has given about his belief in relation to the victim's age. I accept that he did not know that the victim was as young as 12 and did not believe that he was under 16. There is some objective evidence to support that belief. The victim was, on the closed-circuit television footage, apparently a relatively tall young man, quite well-built, dressed all in black, who at least on the closed-circuit television footage that has been tendered, did look older than 12, almost 13. 15. This cannot operate as a defence because, even if it were an honest and reasonable mistake of fact, the offender still committed an offence, namely the offence of indecent assault. Further, even though the victim looked older than 12, he was clearly a young man, at least 30 years younger than the offender. That is a factor I take into account ultimately in assessing the objective criminality. 16. The offender followed the victim into the toilet I accept, knowing him at the very least to be a young man, with the mistaken belief that he was prepared to engage in a sexual contact with him. This is not true and what happened next makes it perfectly clear that once inside, it soon became obvious to the offender that his belief that the victim was prepared to engage consensually in sexual contact with him was mistaken. 17. I accept then from the agreed facts that after the victim went into the toilet, he went into a cubicle at the end of one of the rows, closed and locked the door and then masturbated until he ejaculated. In the meantime, the offender had entered the toilet, gone into a cubicle opposite the one in which the victim was and was standing there with his penis exposed, masturbating. I reject any version of events given by the offender to Ms Howell, or in evidence, that he was not sure in which cubicle the victim was, or that the victim had closed all the cubicle doors. That is not in the agreed facts. 18. The victim opened his cubicle door to leave and saw the offender standing in the cubicle opposite him, facing outwards, with his pants and underpants down, touching his own penis and masturbating. I do not accept that the victim then stood and looked at the offender in any way. That too is not part of the agreed facts. 19. The victim walked to the sink to wash his hands and as he did so, the offender grabbed him by the wrist, and he pulled him towards the cubicle in which the offender had been. The victim tried to pull away and said "Stop" and asked him what he was doing. The offender then touched the victim in his crotch area on the outside of his clothing for a few seconds and moved his hand around. This is the Form 1 offence of aggravated indecent assault. The offender then unzipped the victim's pants by about 3 centimetres but did not put his hands inside his clothing. 20. The victim tried to push his hand away. When the offender got the victim to the cubicle, he sat down on the toilet and pulled the victim towards his erect penis, causing him to fall to his knees. He said, "Go on your knees for me. I know you want my penis." During this, he slapped the victim to the side of his head. It was not a forceful slap, and the victim has described it as not being a hard slap. These are the facts for count 1, the first substantive aggravated sexual assault offence. 21. The victim resisted by pushing up with his hands against the offender's legs. The offender then grabbed the victim's hand and placed it around his own penis and kept his hand wrapped around the victim's hand, thus forcing it to remain on his penis for about a minute. At one point he said, "Yes, grab that dick". This is the second substantive aggravated indecent assault offence. 22. At this point, three men entered the toilet and the offender let go of the victim's hand, who then ran out of the toilet. This occurred at about 8.16pm. He went back to his workplace and told the manager what had happened. The victim did not require any medical treatment as a result of the offences, although he was very shaken. He took a few days off work but returned four nights later. 23. Police investigating the offending, displayed some of the closed-circuit television images of the offender via social media and, as a result of this being brought to his attention, the offender attended Bankstown Police Station on the evening of 23 April 2017, that is the following night, and identified himself. 24. He was arrested and whilst he received legal advice to decline the opportunity to be interviewed, he did in fact answer some questions put to him by police. He denied offending. He identified himself as being the person present. I accept from some of the questions put to him in cross-examination when he gave evidence last week, that he attempted to deflect attention from himself and perhaps even towards other people. He did not admit offending. Impact on the Victim 1. There is a Victim Impact Statement ('VIS') from the victim, who is now aged 15, which has been read and which I take into account. Fortunately, he would appear to be, at least on the face of the documentation, a fairly resilient young man but he has suffered. I accept that the assaults on him have had a marked impact, both mentally and emotionally. He has suffered sleeplessness, feelings of insecurity and has blamed himself for what occurred. He has suffered flashbacks of the incident assault. Fortunately, he has attended counselling and according to his own VIS, he had reached the point in November last year where he had found ways of dealing with the sexual assaults. 2. I accept however that there have been times when he has not coped well. He has been forced to mature a lot more quickly than a young boy should have. He has felt unsafe from time to time and has often felt out of place within his own age group. As I say however, the overwhelming sense to be gained from his VIS is that he is a smart and resilient young man, who is taking advantage of counselling to deal with the adverse impacts on him of this offending. 3. It is to be hoped that this continues in the future so that in the very near future, if not already, he will come to regard himself as a survivor of child sexual abuse, not a victim. He would appear to have consistent and strong support in his mother who has attended all of the court hearings before me which no doubt helps him cope. He should dispel any thoughts that he was responsible for any of this, which is a fear he has expressed in his VIS. There is only one perpetrator of this offending and one victim, and he is the latter and bears absolutely no responsibility for the offending. Objective Seriousness 1. In terms of assessing the objective criminality, these of course are serious offences. All child sexual assault offences are serious. The courts have for many years been well aware of the serious adverse impacts on people who have been sexually abused as children and I take that into account. These are offences of indecent assault, not the more serious offences of sexual assault, however it is the case still that the maximum penalty is 10 years and where appropriate there is a standard non-parole period, both of which I take into account. 2. Pursuant to s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), I must sentence the offender in accordance with the current sentencing patterns and practices, not those at the time of the offending. To an extent it is possible to discern such practices and patterns from statistics published by the Judicial Commission for this offence, which itself has since been repealed, and compare them with the pattern of sentences for offending before the sentencing reforms. It would appear that there is little difference except that the percentage of sentences giving rise to full-time imprisonment has increased, but it would appear to be the case that this largely reflects the fact that terms of imprisonment served in the community by way of suspended sentences are no longer available. The lengths of the sentences do not appear to be any different on current practices and if anything, looking at the statistics for sentences before the reforms came into effect, the length of sentences would appear to have been longer. 3. The objective seriousness of both offences is informed by a number of common factors. The victim was a child, only 12, almost 13, at the time. In this case that plays no real part in the assessment of the objective criminality because this offence is an offence of indecent assault of a child between the ages of 10 and 16. However, as I have said, the age difference between the offender and the victim is large on any measure, even though the offender I accept did not realise that the victim was only 12, the age difference between him and the victim was very large. 4. Other common factors for both offences are that they were committed in a relatively isolated and deserted place, it was 8:00pm at night and most of the shops were closed. There was some force used, I accept, albeit in my view it is not appropriate to describe that as the use of violence. There was degrading language used in connection with both of the offences of indecent assault. The offences only came to an end because others walked into the toilet. Other aspects however informing the objective criminality is that the offending period was short and fortunately the injuries suffered by the victim are not serious, although there are some ongoing psychological impacts on him. 5. The Crown argues that the offences are significantly above the mid-range in terms of objective criminality. I do not accept that submission. It is important in assessing the objective criminality of these offences that they be assessed for what they are, namely offences contrary to s 61M(2). Obviously in general terms, given the factual circumstances of these offences, they are serious offences, but the task is to determine where they sit in the range of factual circumstances capable of being charged under this section. 6. In addition to the general factors referred to earlier, for the first substantive offence it seems to me it is factually below the mid-range for offences capable of being charged under this section. As I understand the Crown case, the indecent assault involved the offender pulling the victim by the wrist into the cubicle and forcing his head towards his penis whilst his penis was exposed and erect. There was no actual sexual touching. It is clearly an offence of indecent assault, but it lacks some of the factual hallmarks of actual sexual touching which are within the range of facts capable of being charged under this section, albeit this must be taken together with all of the general factors to which I have already referred. It is in my view a little below the mid-range in terms of objective seriousness on that assessment. 7. The Form 1 offence however must be taken into account when sentencing for this matter. It involved sexual touching, however outside the clothing and for a matter of seconds. As for all Form 1 offences it must be taken into account in a meaningful way when sentencing for count 1. It might elevate the appropriate sentence slightly but only slightly because in reality, it seems to me, it is part of the same episode of criminality. 8. The second indecent assault offence is slightly more objectively serious because it involves actual sexual touching, that is forcing the victim to touch his erect penis with his hand, in addition all of the general factors to which I have already referred must be taken into account in assessing the objective criminality of that second offence. 9. On this analysis, whilst they are clearly serious offences they are not of the type of objective seriousness significantly above the mid-range. They sit at around the mid-range for the second offence and slightly below for the first offence, but the appropriate sentence for the first offence must take into account the Form 1 matter. In my view, for these reasons, both of the sentences for each offence should be the same. Overall, each of the offences is part of the one episode of criminality and in my view the sentences should be concurrent with each other. I reject the submission that there should be some partial accumulation of the sentences. 10. The standard non-parole period does not apply strictly here either because at least for one of them it is below the mid-range in terms of objective criminality and in relation to both there are pleas of guilty, but it operates as a guidepost. Subjective Case of the Offender 1. The offender is now 50. He comes to court as a person with no criminal convictions. He was arrested on 23 April and denied bail in the Local Court and also in the District Court. He was granted bail by the Supreme Court on 13 December 2017. His bail conditions were onerous including electronic monitoring at his own expense which lasted for 12 months until December 2018. 2. He was subject to daily reporting, and other more standard, bail conditions at least for this first 12 months including travel restrictions and surrender of passport and other travel documents. He was subject to a condition to reside at his home with his wife and two children and had a 24-hour curfew condition not to be absent from his bail residence and to present himself at the door of that residence at any time if called on and not to be absent from the residence for any reason other than to attend medical or legal appointments and then only if in the company of his wife. There was also a condition that an acceptable person deposit $800,000. These quite onerous bail conditions continued until December 2018 and in my view amounted to virtual house arrest. 3. The bail conditions, however, were varied and relaxed substantially after December 2018. The electronic monitoring was ceased, reporting was ultimately reduced to three days per week and, as I understand it, from June 2019 he was permitted to leave his residence for any reason as long as in company with a nominated group of people, which was quite large being 12 people, but largely being family members. These were onerous bail conditions initially, becoming less so as time moved on. 4. He also spent almost eight months in full-time custody bail refused. It is appropriate that he be treated as having spent some time in quasi custody from December 2017, but it is not in my view appropriate to treat that period of 2 years and 7 months as giving rise to an equivalent of 50% full-time custody. As I have said, the last one year and seven months have not been onerous to the same extent as the first 12 months. Overall, it seems to me appropriate to treat this period as giving rise to about a 40% equivalent to full-time custody. I will thus take into account the fact that he has spent approximately 12 months in a form of quasi custody since December 2017, together with a period of 8 months in full-time custody since his arrest. 5. As I have said, he has no criminal history. He has worked hard. He was born in Tripoli, Lebanon and came to Australia with his family when he was around four or five. His family settled in Sydney. He completed high school to Year 11. He appears to have had a very strong work ethic, following the example of his parents who worked very long hours. He and his extended family worked in the restaurant and coffee shop business, and he opened his first coffee shop in the mid-1980s. He then took over a supermarket in the inner-city area near Sydney University. He sold that business and travelled around Europe for about six months. He opened another coffee shop in the city and stayed there until 2006. He then developed a gourmet food bar. He was working in fast food franchises at the time of his arrest, and he has also assisted friends to develop businesses in that field. He is, as I have said, a person with a strong work ethic. 6. Regrettably, before his arrest he suffered a workplace injury after slipping on an icy floor and sliding under a shelf, which fell on top of him. As I understand it, this was in about 2011. He sustained a shoulder injury which required reconstructive surgery, spinal cord injury with nerve damage to his lumbar and cervical spine and he also required ankle surgery for nerve damage. He continues to experience difficulties with his movement. As a result of these injuries he was not able to work in the same way as previously and started to suffer self-worth issues. He comes from a traditional family and has lived a traditional family life. He felt that he was not fulfilling his role properly because these physical restrictions meant he could not, at least in his view, properly provide for his family. 7. He also experienced stress and frustration because as a workplace injury all his treatment had to be approved and agreed by the insurance company. He ended up, I accept, suffering mental health problems as a result, initially being diagnosed with an adjustment disorder with depressed mood, which I accept is a stress related condition which impacts on a person's ability to function appropriately. I accept probably a more accurate diagnosis is that he suffers from a major depressive disorder, which I also accept affects how an individual feels, thinks and behaves and can lead to a variety of emotional and psychological problems. He has also been diagnosed with anxiety disorder. 8. He has received medical treatment for both anxiety and depression, including medication, but more recently has started to use cognitive behaviour therapy in preference because of the side effects of these drugs. 9. He is married, with two sons now aged in their late teens. He has been a good father and husband. The impact of these offences on his family has been significant. There has been a significant amount of publicity surrounding these offences, which has impacted on his wife and his two sons in particular. It is most unfortunate that his two children have had to suffer the brunt of this offending. The impact on his family, however, is not such that if a term of imprisonment is appropriate the impact on his family would make that unnecessary. 10. As I have said, he comes to court as a person who suffers from a psychiatric illness and did so at the time of committing the offences. However, there is no direct connection between the offending and his mental condition. I will take into account the fact of his depression when determining the appropriate structure of the sentence. 11. I do accept evidence that he gave last week, however, that in fact he considers himself to be bisexual and that he had realised for a considerable period of time that he had bisexual, and therefore, to an extent, homosexual interests. He admitted that he had on previous occasions visited places where he knew that there would be gay men so that he could engage in consensual homosexual sexual contact them but that over his adult life, and particularly since he married, he had tried to either limit or suppress these urges because he knew that it was taboo within his religion and feared that he would be shunned by his community and family. He also had a strong sense of duty to his wife and sons and engaged in a life where he attempted to limit this behaviour in an attempt to protect them. I accept that until about 2017 he largely either suppressed these urges or kept them well under control without presenting any risk to his family. 12. This is a sad state of affairs for him and his family, but I accept it to be the fact. I accept that after his workplace accident and resulting depression and anxiety he was no longer able to control himself as he had done previously. This was the situation he was in when he committed the offences before me. 13. As I have found, at least one of the reasons why he was there at Bass Hill Plaza that evening was to seek out some homosexual contact of an anonymous type but in circumstances where at least initially he expected it to be consensual. Clearly enough, as he attempted to initiate that contact with the victim it was clear to him that it was not consensual and that, of course, is the reason why there is a plea of guilty to this offence. 14. As I have said in the vernacular, he was 'cruising' and he could not control himself that night. He has, in fact, admitted that to be the case. I do, however make a finding that he is not a paedophile, which might seem an unusual outcome, given that he is being sentenced for indecently assaulting a 12-year-old. As I accepted, he did not target the victim of this offence because he was 12. He did not believe that he was under 16 and again, as I have accepted, there is objective evidence that that was not an unreasonable belief. 15. Even though the offender has often given unimpressive and somewhat conflicting evidence or versions of events from time to time, one constant in his evidence and in his approach to these charges is that he did not realise the victim was 12 and could not believe that he was capable of committing such an offence, especially as the victim was around the same age as one of his sons. 16. Ms Howell, psychologist, initially prepared a medico-legal report for the Court and in more recent times has been treating the offender. She has assessed his risk of recidivism, using the various tools, including the static 99R and other static tests. On these static factors he presents as between a low to moderate risk for sexual recidivism, However I also accept her evidence that once he is further assessed on dynamic risk factors, that in fact he is a low risk of recidivism., I accept that to be the case and I also accept her evidence that he is not a paedophile. 17. He does not in my view present a risk to the community either as a paedophile or a sex offender. He has been undertaking cognitive behavioural therapy with Ms Howell, albeit perhaps not until relatively recently to deal with issues surrounding sexual offending. He is prepared to continue in due course. 18. I accept that he is genuinely remorseful and contrite. To the extent that there has been something like victim blaming I accept that this really is because he has still not been able to accept that he was capable of committing this offence on a 12-year-old boy. He is more recently coming to terms with this and also that his sexual contact with the victim, even if he thought he was over 16, was non-consensual. Despite the fact that he has been slow coming to terms with all of this there is some explanation, especially his desire to protect his children and wife, the effect that the publicity has had on his family and the fact that because of his religious upbringing his homosexual tendencies are something that amounts to a degree of self-loathing on his part. 19. As I have said he does not present a risk to the community, is not a paedophile and in my view has very good prospects of rehabilitation. Despite all of this, in my view the s 5 threshold for imprisonment has been reached, taking into account all of the purposes of sentencing pursuant to s 3A of the Crimes (Sentencing Procedure) Act 1999. There must be general deterrence, both in relation to child sexual assault but also generally in relation to engaging in non-consensual sexual behaviour with another person. No one should be forced to engage in sexual contact unless they consent to it. 20. There should be denunciation of his conduct. There is a need for specific deterrence, but it does not factor much into this sentence and in reality would be much better served by a continuation of treatment with Ms Howell. There is a need as much as possible to promote rehabilitation, but these latter two factors must not be permitted to overcome the overall purposes of sentencing. 21. It is argued on behalf of the offender that, taking into account the time spent in both actual and quasi custody, the appropriate sentence would be a Community Corrections Order. I do not accept that to be the case. It would be an unusual case where anything other than full time custody was the appropriate sentence for offences of this type. It may be that if the total time and quasi custody equated to an appropriate non-parole period, then it may just be open for a court to find that the threshold for imprisonment is not reached, but this in my view is not one of those cases. 22. Overall, it seems to me that the starting point for the sentence for each of the offences should be a little less than 5 years. I have ultimately concluded that taking into account the 10% discount an overall term of imprisonment of 4 years and 3 months is the appropriate sentence. For each offence, there will be a non-parole period of 2 years and 3 months 23. There are special circumstances, as follows: 1. This is effectively his first term of imprisonment. 2. His non-parole period will be served in two separate portions. 3. He will serve his non-parole period in a more onerous circumstance than might others, both because of his depression, the nature of his offending and the impact of which the court is aware, that the current Covid-19 pandemic restrictions place on those who are in prison, including the lack of access to programs and the lack of visits and similar. He will also as I understand it be held in a form of quarantine for a period of time when he first goes back into custody. 4. The other special circumstance is that his treatment will be interrupted whilst he remains in custody. 1. It is unfortunate that he will have to return to prison in my view. It is an undesirable outcome for everyone, the community, the victim and clearly enough the offender and his family. Except for the sentencing purposes of denunciation, punishment and general deterrence this might not otherwise be necessary. It seems to me that the community would be better served here if he were able to continue his treatment in the community and thus reduce even further his likelihood of re-offending. However, that course in my view is not open here and it is necessary for him to return to prison to serve the appropriate balance of his non-parole period and as I have reflected earlier, this fact reflects my view that he was released to bail unrealistically early. I am conscious that no one benefits from this course. Taking those matters into account, I propose to backdate his sentence to commence on 7 November 2018 with a non-parole period that expires on 6 February 2021 which requires him to serve a further seven months in custody. Sentence Orders 1. For those reasons I make the following formal orders: 1. The offender is convicted on both offences. 2. For each offence the offender is sentenced to a non-parole period of 2 years and 3 months commencing 7 November 2018 and expiring 6 February 2021, with parole thereafter of 2 years commencing 7 February 2021 expiring 6 February 2023, giving rise to an overall term of imprisonment of 4 years and 3 months commencing 7 November 2018 and expiring 6 February 2023. 3. I have taken into account the Form 1 offence when sentencing the offender for count 1. ********** 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: 10 November 2022