District Court New South Wales Medium Neutral Citation: R v AD [2012] NSWDC 273 Decision date: 16 March 2012 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Term of imprisonment of 4 years 11 months and 7 days. Non parole 3 years. Balance 1 year 11 months 7 days. Catchwords: CRIMINAL LAW - Sentence: possess child pornography, use carriage service to transmit pornography, act of indecency of child under 16, mental disability, varying aggravating factors. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Engert (1995) 84 A Crim R 67 R v Scognamiglio (1991) 56 A Crim R 81 R v Hemsley [2004] NSWCCA 228 Pearce v R (1998) 194 CLR 610 R v Minehan [2010] NSWCCA 140 R v Gent [2005] NSWCCA 370 Thomson and Houlton [2000] NSWCCA 309 Category: Sentence Parties: Director of Public Prosecutions AD - accused Representation: J Carty - accused P Woods - Director of Public Prosecutions File Number(s): 2010/073685 2009/1293300 Sentence 1HIS HONOUR: AD appears today for sentence in relation to five matters on an indictment, to which he pleaded guilty in July 2011, in the District Court at Coffs Harbour before another judge and also appears in relation to proceedings concerning an alleged breach of a s 12 bond, granted to him in respect of a wounding offence. 2The five matters on the indictment to which he pleaded guilty were, respectively, in relation to count one, an allegation on 23 March 2010, at Coffs Harbour in the State of New South Wales, the prisoner did possess child pornography material, namely five photographic images for use through a carriage service. The second count alleged that on 22 March 2010 at Coffs Harbour in the State of New South Wales, he did use a carriage service to transmit child pornography material. The third count alleged that between 1 January and 23 March 2010, at Coffs Harbour in the State of New South Wales, he did commit an act of indecency upon AM, a person under the age of sixteen year's, namely thirteen years. The fourth count in the indictment was in identical terms to the third, and the fifth count in the indictment alleged that between 1 January and 23 March 2010 at Coffs Harbour in the State of New South Wales, the accused did incite AM, a child then under the age of sixteen year's, namely thirteen year's to perform an act of indecency knowing that the act of indecency was being filmed, for the purposes of producing child abuse material. Count one carries a maximum penalty of fifteen year's imprisonment, as does count two I am informed. Count three and count four both carry maximum penalties of two year's imprisonment and count five carries a maximum penalty of ten year's imprisonment. The offences alleged in relation to count one and two are breaches of the Commonwealth Criminal Code Act. The other three offences are breaches of State law. 3The reckless wounding matter is an offence committed on 8 February 2009 at Coffs Harbour, when the accused stabbed a gentleman by the name of Richard Kirk. In relation to that particular matter the accused was convicted and sentenced to twelve month's imprisonment, suspended pursuant to s 12 Crime (Sentencing Procedure) Act on 12 October 2009. The offences with which I am concerned, committed up until 23 March 2010, involve clear breaches of the good behaviour bond, granted the previous year and inevitably, as was conceded by counsel for the prisoner, required the revocation of the good behaviour bond and the imposition of a sentence of twelve month's imprisonment. S 98(3) Crime (Sentencing Procedure) Act 1999 could demand nothing else. 4In relation to the facts, upon which the prisoner is to be sentenced for the matters on the indictment, there is an agreed statement of facts that was tendered when I sat in Coffs Harbour in December 2011. I should point out as was implicit in what I said earlier, the prisoner pleaded guilty at earlier sittings of the District Court before another judge. The matter came on before me in December. Application was made to adjourn the matter because a report had not been prepared but I indicated to the parties that the length of time that the matter had taken to get to where it was, demanded that I should at least commence the matter and complete it when I was in a position to be satisfied, that such reports that were being sought, were needed. As it transpired I was satisfied in the circumstances, that there needed to be a further delay for further reports to be prepared and I must say I was greatly assisted by both reports, prepared and tendered by both the defence and the prosecution. 5The prisoner was arrested on 23 March 2010, in the Coffs Harbour area, and was found in possession of a knife and a small quantity of cannabis leaf. This arrest was unremarkable except for the fact that when police took custody of the prisoner's mobile phone, and did a search of the phone in an endeavour to find the personal details of the prisoner who suffers an intellectual disability, to which I will refer in a moment. The police found five separate photographs of a naked boy. The photographs according to the record on the phone, were taken between 19 March 2010 and 21 March 2010. These five images constitute count one. 6A further search of the phone revealed that the prisoner had sent to a man who I shall refer to as PS, on 22 March, one of the images. PS told police that he had received a photograph of a naked boy who he knew to be an Aboriginal boy by the name AM. PS has seen the boy a number of times at the home of the prisoner and PS said he was shocked receiving the photograph, having not solicited that photograph. That constituted count two. 7On 24 March police searched the prisoner's home, they found further cannabis leaf. The evidence reveals the prisoner is a regular user of cannabis and enquiries revealed that the boy shown on the data bank of the prisoner's phone was a young man, AM, born on 20 December 1996 and thus was thirteen year's of age when the photographs were taken. He was not interviewed until 20 May 2010. He said he knew the prisoner and would go to the prisoner's home to be provided with cannabis. The child gave details of sexual offences committed upon him. He said that on one particular occasion, the prisoner had told him to "get stoned" and expose his genitals. When this was done the prisoner told AM to pull his buttock cheeks apart and he took a photograph of AM in this position. AM said the photograph was taken with a white mobile phone, which is not the phone which the police recovered from the prisoner. AM told the police that he in fact had "smashed" the prisoner's white phone. That event gives rise to count three. 8On another occasion the prisoner forced the boy to masturbate. When he ejaculated the prisoner put the ejaculate on a spoon and placed the spoon in his own mouth. That is the detail relevant to count four in summary. In relation to a particular photograph the victim said the prisoner had supplied him with cannabis and got him stoned. He had told AM to pull his pants down and pose naked with his legs spread apart. The prisoner forced A to do this by holding a knife towards him. The prisoner photographed A in this position. During the interview AM signed the photographs that were marked by interviewing police and those images were numbered and that allegation relating to the actions of the prisoner and the taking of the photograph constitute count five. The knife with which the victim was threatened was identified by the victim, from photographs supplied by the police. 9The prisoner has been in custody since his arrest on 23 March 2010, and the effective sentences to be imposed upon the prisoner date from that date. Although, as I will explain, there will need to be some partial accumulation of some of the sentences. The prisoner when he committed these offences was forty-six year's of age. He was born on 2 July 1963 and on my calculation will turn fortynine this coming July. He has prior findings of guilt. He has a conviction at the Coffs Harbour District Court in January 1986 for two counts of indecent assault, for which he was placed on what was called a recognisance then, to be of good behaviour for three years. He was charged in relation to those matters on 24 July 1984. 10On 29 May 1986, that is subsequently as I understand it, he was charged with committing an act of gross indecency upon a person under the age of eighteen years, and at the Sydney District Court on 15 December 1987 he was sentenced to eighteen months imprisonment with a nonparole period of nine months. 11On 23 August 2011 he was sentenced at the Coffs Harbour District Court in relation to two offences of committing an act of indecency on a person under the age of ten years. On one count he was sentenced to two years imprisonment, suspended pursuant to s 12 Crimes (Sentencing Procedure) Act, by entering in a good behaviour bond to receive supervision from the Probation and Parole Service. On the second count he was placed on a s 9 good behaviour bond for a period of four years. 12On 12 October 2009 at the Coffs Harbour Local Court, as I said, he was convicted of recklessly wounding another person and sentenced to a term of imprisonment, which I have outlined, which was suspended. He was also convicted of possessing a prohibited drug for which he was fined $150. For the offences for which he was initially charged on his arrest on 23 March concerning the custody of the knife and the possession of the cannabis, of which there were two counts, he was fined in each respect $200, although at that time he, of course, was in custody. 13In relation to the indecent assault matter for which the prisoner received a three year good behaviour bond, the psychologist's report prepared for sentencing purposes made a reference to the victim as "the nine year son of a local publican." In relation to matters with which the prisoner was charged in mid 1986 and sentenced to a term of imprisonment the psychological report prepared for the court referred to the victim being a thirteen year old male. In relation to the convictions in 2011, for which the prisoner received, amongst other things, a suspended sentence, the psychological report prepared on that occasion for the prisoner's appearance at court referred to the victim being a five year old son of a friend. I have no other details and I again repeat what I have said many times that it is high time that judges in the District Court and the Supreme Court when sentencing an offender in relation to indictable matters were given the remarks on sentence in relation to prior indictable matters if they are available and in the modern era with digital recording of judgments that is not an impossible task one would have thought. It is vital that sentencing judges have all available information in relation to relevant prior convictions, and clearly the matter to which I have referred are highly relevant. 14In sentencing the offender, of course, I have taken into account the limited Victim Impact Statement prepared by AM, who reflected upon the effect upon him of the prisoner's offending, his anger, his fear and the guilt that he felt arising out of the actions of the prisoner. 15It is true, as the facts reveal, the prisoner did not abduct the victim and drag him kicking and screaming to his own home. But it is also true, as I will outline in a moment, the prisoner has a great deal of difficulty taking responsibility for his wrongdoing and his exploitation of his victims, not just this one, but the other victims to which I referred. The Corrective Services psychological report actually quotes the prisoner's remarks in respect of those other offences and, as with this matter, the prisoner's response is very much one of minimising the impact of his conduct upon others. In respect of one previous victim he simply said "one thing led to another I know I (as said) shouldn't have happened." In relation to another victim he said it was "the same shit, apparently I touched him." The prisoner's insight in relation to the current matters is, of course, limited indeed. 16Although the prisoner did not give evidence before me I have a great deal of history in the respective psychological reports and in the Probation and Parole Service report. 17I will come back to the personal circumstances of the prisoner in a moment, but by reference to the Probation and Parole Service report dealing with the material tendered in the Crown case, the prisoner is noted to be in breach of the bond previously given. The report outlines the background of the prisoner, including having been diagnosed at the age of twelve months with congenital hydrocephalus or "fluid or water on the brain" and having been treated for that for a period of time. The prisoner is physically disabled in a very noticeable and material way. He presently walks with a walking frame and clearly is greatly limited in his physical capacities. 18So far as the Probation and Parole Service report is concerned, dealing with matters within the purview of that service and its supervision of the prisoner in the past the Probation and Parole Service notes a history of social isolation. It also notes the fact that the prisoner minimises his behaviour, tends to blame others for the circumstances in which he has found himself in and "appears to have little understanding of his offending behaviour." 19The report reflects upon his physical and intellectual disabilities, detailed by the psychologist and notes that his previous supervision has had limited impact upon him. It notes details from previous psychological reports. In June 2000 it was noted that the prisoner was "socially awkward and has a lesser than adequate understanding of the consequences of his own actions. He is unaware of others' perception of him. He is not orientated towards group activity. He is less competent than normal of expressing himself and initiating actions with others. He has problems with inappropriate anger, impatience, irritability and impulsivity." 20It noted his history of cannabis use, although he does not consume alcohol. 21So far as his attitude towards the offences are concerned the prisoner told the Probation and Parole Service that he denied using the knife, but that issue is not challenged for these proceedings. He told the Probation and Parole officer that he was "stoned" at the time of these offences and "did not know what he was doing." He said to the Probation and Parole officer that the victim "would often come around" to his place stoned and "make a pest of himself." He acknowledged to the Probation and Parole officer that he should not have committed the offence and that it was "the wrong thing to do", but, as I said earlier, minimised his responsibility, particularly given the victim's age. The Probation and Parole Service noted that the offender was a person who needed a high level of intervention by the Service, particularly requiring referral to the Department's sex offender programs. 22It is clear, obviously, without reflecting upon his unsuitability for Community Service and the like that the prisoner is a person who must be sentenced to terms of imprisonment in relation to the current offences, notwithstanding the terms of s 5 Crimes (Sentencing Procedure) Act. 23This brings me to the reports of the psychologist. The two reports are very detailed and thorough and very much accord with one another. One can act with some confidence upon them, given the many common observations and findings relating to the prisoner. Taking the material from the reports concerning the prisoner's background because it is more detailed than that contained in the Probation and Parole Service report, I note the prisoner is the third eldest of eight children. He claims seven brothers that he says are aged in their "late twenties to late fifties". His father died in 1997 and his mother died in 1999 and it would seem that he was not the subject of any violence, sexual or otherwise from his parents or within his family and he did not witness any domestic abuse. He indicated, however, great difficulties in his education because of the effects upon him of his hydroencephalitis and the fact that effectively he was unable to read or write and was never offered remedial education or assistance at school and thus has had very limited real education. He has received a disability support pension for his physical disability his entire adult life. His physical disability includes what is described, as I understand the reports, as muscular dystrophy that has existed for a long period of time. His strength in his leg muscles and the rest of his body has diminished throughout his life, however whilst in custody there has been no significant deterioration. 24There is no suggestion in the material available to me, nor any claim made by AD, that he is unable to receive adequate medical treatment whilst in custody but I do accept by reason of both his physical disability and his intellectual disability that the circumstances of custody are circumstances of greater hardship for him than for persons of average intellectual and physical disposition serving their sentences in the general gaol community. He has not suffered any head injuries in his life but his intellectual disabilities have of course remained with him throughout his life. He has two children from a relationship that he entered into when he was twenty seven years of age. Those two children are now aged, as I understand it, fourteen or fifteen but are in foster care, the mother being unable to care for them. The prisoner has indicated an interest in their welfare and the fact that they communicate with him whilst he is in custody. 25His sexual proclivities have generally been homosexual, although he had a relationship of a sexual character with the mother of his children. I do not propose to go into the detail of his sexual background. It is not a matter of great significance. It does not necessarily explain the offending behaviour, but it is clear that he has a history of offending in relation to underage boys and thus might be said to have a proven capacity to commit offences of a paedophilic or hebephilic character. The prisoner denied any paedophilic or hebephilic interests despite the nature of the current offences and only admitted to watching age appropriate pornography without an interest in paedophilic pornography. I have no reason to conclude that what he said in that regard was untrue. The psychological assessments of the prisoner by both the psychologists retained by the defence, Ms Nasr and the psychologist from the Corrective Services Department, Kate Solomon generally agree. There is more detail than Ms Nasr's testing in Ms Solomon's testing however does reflect upon testing that has been conducted in the past. 26According to the Weschler Adult Intelligence Scale(WAIS), AD's verbal intelligence was assessed as being in the borderline range superior to only five per cent of his aged peers. His non verbal or performance intelligence was also determined to be in the Borderline range of the eighth percentile. Overall AD's intellectual functioning was estimated to fall in the borderline range with his performance being above five per cent of the normative sample. It was said this was consistent with his presentation reported history. It is noted that impoverished verbal skills are often associated with a greater tendency to impulsivity and poorly reasoned behaviours through a lack of self reflective skills or limited insight. Impoverished non verbal skills are often associated with poor visual motor coordination and abstract reasoning and limited general intelligence. 27The Corrective Services psychologist's report notes that reports in 1985 variously describe the prisoner as "mild to moderately disabled physically and mentally" with below average reading and other capacities. One report in 1987 assessed AD at being in "the bottom five to ten per cent of the population". Another report in 2000 described in as having "a borderline intellectual disability". A 2010 report apparently recorded, or made when the prisoner was in the current custody described him as having "mild range of intellectual disability". The overwhelming evidence is that his intellectual disability is much greater than that. As I said, to be fairly described as "borderline". 28His hydrocephalous has affected him in a range of ways. It has left him as an isolated individual most of his life, both as a child and as an adult. He has poor self esteem and low confidence and generally, except on limited occasions, sticks to himself. The psychologist retained by the defence opined that his offending was best understood within the context of a "poorly socialised man with disturbed attachment and intimacy deficits and poorly reasoned thinking and decision making with limited understanding or forethought to the consequences of his behaviour." The prisoner was reported to have limited or minimised, not just his offending behaviour but his problems and deficiencies. It was thought that he had symptoms or presentations consistent with a Schizoid Personality Disorder, having regard to DSMIVTR criteria. 29The major issue, apart from issues of intellectual ability and the like addressed by both reports concerns the assessment of the prisoner's risk to others, particularly in the area of further sexual offending. I should hasten to say that having regard to the facts of the case, having regard to the intellectual and physical circumstances and social circumstances of the prisoner and particularly noting the character of his prior offending, it would be self evident on those matters alone that the prisoner was a person of some considerable risk of re-offending in the future. 30Both psychologists undertook a risk assessment by reference to the use of actuarial measures. The specific actuarial measure undertaken by the Department of Corrective Services, as is usually the case in such reports, was the use of what is described as the Static 99R instrument to assist in the prediction of sexual recidivism. The two psychologists both agree that the prisoner on these actuarial assessments is a person in the "high risk category" relevant to other male sexual offenders. 31Without going into a detailed analysis of both reports, given their similar conclusions, perhaps it is most convenient to summarise the dynamic risk factors which are considered relevant. Matters that are predictive against AD's risk of further offending are that he does not present as inherently psychopathic, he denies being a victim of sexual abuse and he does not present with "serious mental health concern" in relation to his offending behaviour. However, factors that can be considered to elevate AD's future risk of re-offending are his history of sexual offences and use of coercion in the past, the use of coercion to take pornographic pictures of the victim, the history of sexual and non sexual offending in indicating some sexual deviancy, antisocial aspects of his lifestyle, severe and endemic psychosocial deficits, limited self awareness, lack of employment, regular drug use, poor coping and problem-solving abilities, lacking future oriented goals et cetera. 32I have taken these matters from the defence's psychological report. It is a matter of commonsense, but also of expert evaluation, that the preponderance of risks work in favour of an elevation of his risk, rather than a diminution of his risk to others. Static and historical risk factors identified in that report, including the fact that the prisoner has never lived with a partner for more two years, has prior non-sexual violence history, has four former sexual offences, has four or more prior sentencing appearances, the victim was unrelated to him, the victim was a male suggest this is so. The instrument used by the defence psychologist suggests that the "normative sample" on which this instrument is based suggests that thirtynine per cent of offenders would receive a further sexual conviction within five years, and fortyfive per cent within ten years, and there are other statistics presented. 33I am mindful Ms Nasr points out, as does the Correctional Services psychologist, that these statistical or actuarial instruments have their limitations, and they both point to the fact that their predictive capacities have to be seen in the context of the many qualifications which are set out in the report. The Corrective Services report deals with dynamic and static risk, or stable risk factors, and the report covers the same issues. Both reports indicate that, given the findings of the respective psychologist, the prisoner is one who needs treatment intervention. The prisoner has reported that he is willing to participate in a sex offender treatment programme and there such programmes available in custody, and there are such programmes available in the wider community. 34There is a suggestion within the Corrective Services Report that the treatment programme in custody would need a "minimum period of two years" post sentencing. I agree with the submission put by the accused's counsel that I cannot fashion a sentence to accommodate the ability of the prisoner to undertake that particular programme. What I must do is sentence the prisoner appropriately and according to law, and fix an appropriate sentence, taking into account all relevant matters, just not that particular factor. 35I note the Corrective Services report, which is also authored by the Therapeutic Manager of Sexual Offender Programmes for the Corrective Services, states that there are sex offender programmes in the community for risk management and treatment, although the programmes are not designed for "high intensity needs sex offenders". It is felt by that report that his needs would not be adequately met in the community. Be that as it may, as I said, the determination of the appropriate sentence must take into account a wide range of factors, not just those matters. 36Clearly, by reference to the findings of both reports, the prisoner is a person who needs an extended period of supervision to assist in relation to adjustment to community living such as finding appropriate accommodation, and requires an extended period of supervision to address, not just matters relating to his risk to others in the community, but also his abuse of cannabis and related issues, including his social isolation. I have not forgotten the fact that, although the prisoner is a person at risk of reoffending, it would appear that his inhibitions may well have been reduced significantly, or substantially, by his use of cannabis. In any event, I have had close regard to both psychological reports, and the time available to me now does not enable me to do complete justice to the detail of those reports. 37As I said, there was no other evidence apart from the psychological report. The prisoner did not give evidence, but I fully understand his capacities are so limited he would no doubt not do justice to himself, and I do not hold that against him. No other material was presented in substance on his behalf. 38Both the Crown and the defence provided helpful written submissions, and I have taken into account the detail of those submissions in the conclusions that I have reached. The oral submissions that supplemented the written submissions by definition, given the detail in the written submissions, were limited. Essentially, in conjunction with the writing submissions, it was submitted that the prisoner's intellectual disability means that his moral culpability is diminished, he is not an appropriate vehicle for general deterrence. It was also submitted that he should receive a discount greater than ten per cent, notwithstanding the fact that he pleaded guilty on a date that the matter was fixed for trial, or perhaps the day after, the reason being that, because of his intellectual disability, it was much more difficult to obtain proper instructions from him short of, of course, he being unfit to be tried. It was also submitted, as I said, that the sentence should not be adjusted simply to accommodate the need for him to undertake courses recommended by the Department of Corrective Services. 39In relation to the Crown's oral submissions, supplementing the detailed written submissions, the Crown drew the Court's attention to the finding of the Corrective Services psychologist in respect of the intellectual disability and its relationship to the offending that: "AD's intellectual disability...does not appear to be a key contributing factor in his sexual offending behaviour. It may, however, affect his ability to engage in abstract thinking and have insight into his behaviour. Furthermore, AD's intellectual disability is relevant with regard to treatment, and is considered as a responsivity factor in the recommendations below". 40This case brings into very sharp focus the decisions of superior courts in relation to the treatment of offender's with intellectual disabilities. I bear in mind, of course, as I turn to this topic, that the discussion with which the Court is concerned in the cases is very much related to the purposes of sentencing now set out in s 3A Crimes (Sentencing Procedure) Act 1999. All of those purposes, one way or another to varying degrees, have a relevance in this particular sentencing exercise. However, particularly in the context of punishment and personal deterrence and general deterrence and their relevance to sentencing on this occasion, one has to consider the principles that I have summarised in the judgment of R v Hemsley [2004] NSWCCA 228. Ironically, Ms Hemsley, after this judgment of the Court of Criminal Appeal came back for sentence before me in 2006 for an almost identical offence for which she was sentenced by the Court of Criminal Appeal in 2004, and I was required to apply Hemsley principles to Ms Hemsley. In summary, Sperling J said at paragraphs thirty three to thirty six that mental illness and, in that regard, I also refer to mental disability - may be relevant in three ways. 41First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. There may not then be the same call for denunciation, and the punishment warranted may accordingly be reduced. Secondly, mental illness or disability may render the offender an inappropriate vehicle for general deterrence and moderate that consideration. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person. 42I interpose to point out in this matter and I have already accepted such is the situation here because the prisoner, not only has his mental disabilities, he also has his very substantial physical disabilities. Fourthly, and a countervailing consideration that is to be taken into account, is that the level of danger which the offender presents to the community may sound in special deterrence, and his Honour, in those succinct remarks, referred to a number of authorities. 43I should also note one of the authorities cited by Sperling J, the decision of the learned Gleeson CJ when he was Chief Justice of the New South Wales Supreme Court in R v James Peter Engert, a decision with which the balance of the Court agreed, where his Honour discussed the authorities, commencing in New South Wales with the decision of Grove J in Scognamiglio in 1991, dealing with the diminution of a consideration of general deterrence when the prisoner was not an appropriate vehicle for that message. His Honour, the learned Chief Justice, after referring to the late Justice Badgery Parker's judgment in Letteri, an unreported judgment from 1992, said that: "The question of the relationship, if any, between the mental disorder and the commission of the offence goes to the circumstances of the individual case, to be taken into account in the application of relevant principles. The existence of such a causal relation in a particular case does not automatically produce a result that the offender will receive a lesser sentence anymore than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example the existence of a causal connection between the mental disorder and the offences or offence might reduce the importance of general deterrence and increase the importance of a particular deterrence or the need to protect the public. By the same token there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which the person is being sentenced with the mental disorder may be very important in considerations of rehabilitation or the need for treatment outside the prison system." 44In this matter the facts of the case reveal that the prisoner's intellectual disability is a matter that has clearly contributed at least in part to his social isolation which has contributed to the circumstances in which he came in contact with the victim and the circumstances in which the prisoner abuses cannabis. These were preludes to the commission of the offences. His intellectual disability provides for him difficulties also in abstract thinking. It may make him even more susceptible to the effects of cannabis, although he has been a cannabis user for some period of time and the effects would not be foreign to him. Of course cannabis could contribute to the lowering of his sexual inhibitions, whether he had an intellectual disability or not. Certainly his social isolation and his cannabis use in that isolation provided the opportunity for him to have contact with the victim in circumstances where others were unaware that it was occurring. 45The evidence reveals, however, in his criminal history that he is a man who has offended against children before and certainly could not be seen in the context of his criminal history that the offences with which I am concerned were either opportunistic or uncharacteristic. The relationship between his intellectual disability and the offending is not clearly drawn. Certainly in my view of the objective facts, whilst his intellectual disability may have some salience in explaining the circumstances of the commission of counts three and four, the causal connection and the explanation for his offending by reason of his intellectual disability has far less weight or salience in explaining or understanding the circumstances of the commission of the offences in counts 1, 2 and 5. 46The facts of the matter are that the taking of photographs and the storage of them, the dissemination of them on a limited basis reflect the technical expertise and a degree of deliberation beyond simply impulsive conduct. Even if this technical expertise and conduct was not inconsistent with borderline intellectual function they certainly reflect in their terms these events, a capacity for deliberation and/or cunning which would allow for these offences to occur. The organisation and execution of the offences set out in counts one, two and five reflect a recognition by the prisoner of the consequences of what he was doing, particularly given that one of the images was transmitted to another for that other person's supposed digestion and/or gratification. It should also be pointed out that the threats the prisoner made in order to commit the offence in count five show a determination on the part of the prisoner to commit the substantive offence beyond what could simply be described as a lack of inhibition, or a lowering of inhibition by reason of intellectual disability or cannabis usage. 47So far as his borderline intellectual capacity or disablement not making him an appropriate vehicle for general deterrence or lowering his moral culpability, the relationship between his condition and the commission of the offences as I say may be stronger in relation to counts three and four but less so in counts one, two and five. However, even accepting a causal connection between his intellectual disability and the commission of all the offences or by reference to the so called Hemsley principles that I have referred to, if I was to accept that he was not an appropriate vehicle for the message of general deterrence to be given its full weight, given what Gleeson CJ said in Engert, noting the previous crimes against children, noting the psychologists' opinion based upon the criteria to which they refer and the actuarial test that they have applied, and having regard to simple common sense that the prisoner is a person at high risk of reoffending, personal or specific deterrence in this matter require some greater weight than might otherwise be the case. 48This is underlined in my view, as reflected in the respective psychological reports, by the prisoner failing to take full responsibility for his misconduct and seeking to shift the blame to some degree. I am prepared to accept of course this aspect of the prisoner's presentation may be very much a manifestation of his intellectual disability as it has been described. Thus I simply state that in sentencing the offender I have taken into account the principles to be applied and carefully weighed the competing purposes of sentencing that arise in this particular matter. 49In relation to the objective circumstances of the offending certainly whilst the offences set out in counts three and four maybe consistent with impulsive behaviour, as I said earlier they are not uncharacteristic offences for the prisoner and the offences set out in one, two and five have little or no impulsive character and reflect upon the capacity of the prisoner to understand the seriousness of his conduct and the capacity of the prisoner to deliberate upon that conduct. Ultimately, I have concluded that the offence set out in count five with its maximum penalty of ten years has at least the character of offending in the mid range of objective seriousness. I hasten to say I am not using the language of Part 4 Division 1A. Counts one and two in their character and execution are at the lower end of the range of seriousness, given the various matters discussed in R v Gent [2005] NSWCCA 370 and R v Minehan [2010] NSWCCA 140. But, also, it must be fairly said that counts one and two have to be seen in a wider context, particularly of related indecent assaults in the sense of offences of that character committed during this same period of time or perhaps beforehand. 50The criminal history of the prisoner does not entitle him to any particular leniency and I have dealt with that as it evidences his risk to others. As I have pointed out the consideration of s 3A for the purposes of sentencing requires a fine balance in the way in which I have analysed it from the cases that I have referred to including Hemsley and Engert. In relation to each offence the offender is to be sentenced to an appropriate sentence for each offence with appropriate consideration given to the totality of the criminality by accumulation or concurrency as the case maybe as set out in the majority judgment of Pearce v R (1998) 194 CLR 610. 51Briefly by reference to s 21A of the Act, noting of course, the general application of the common law of sentencing under s 21A(1), the facts are that the prisoner was subject to conditional liberty at the time of the commission of all the offences and this is clearly the most significant aggravating factor pursuant to s 21A(2) of the Act. 52I appreciate that his intellectual disability may limit his complete understanding of the consequence of his conduct or limit his capacity to think through the fact that these offences were committed whilst on conditional liberty. In relation to the counts three, four and five the intoxication of the victim by providing him with cannabis, even if the victim demanded the cannabis, is an aggravating factor pursuant to s 21A(2)(c)(b) of the Act. Of course, again this matter is to be seen in the context, not only of the intellectual disability of the prisoner, but his own dependence and use of cannabis. 53In relation to count five the commission of that offence is one that involves aggravations, which I have referred to in the facts as they have been revealed to the court. The offence carries a maximum penalty of ten years and pleads the filming for the purposes of producing child abuse material as a relevant "aggravation" the use of force in these circumstances, as revealed in the facts, points to a particular aggravation under s 21A(2)(c) of the Act. 54In relation to mitigating factors arising under s 21A(3) of the Act the most significant matters that I can identify are the fact that the offences were not part of "planned or organised criminal activity". The prisoner's pleas of guilty are a mitigating factor, although he receives a discreet discount for that. I note from the submissions of the defence, which I accept, that there was no physical injury or cruelty inflicted upon the victim in relation to any of the offences, but particularly in relation to count 1. The poses taken by the prisoner on his mobile phone did not depict "explicit sexual activity." The prisoner did not retain photographs for profit or disseminate them for profit, but rather for personal purposes. Although he did send one image to a third party, again, this was not for a commercial purpose. 55In relation to the fixing of the appropriate nonparole period I have pointed to special circumstances that arise. Another special circumstance that is relevant is the fact that the sentences I impose will involve some accumulation upon other sentences. The structure of the sentences that I have fixed upon reflects upon the fact that I view counts five and one as the most serious of the offences in the context of the statutory maximums. I am mindful of the fact that the Commonwealth offences carry greater maximum penalties, but in the scale of objective seriousness they are at the lower end of the scale, whereas the offence under count five is a State offence at a higher range of objective seriousness, but with a lesser maximum penalty. 56I am constrained in relation to counts three and four by the maximum penalties which are in each case two years. In relation to count two, although it has the same maximum penalty as count one it is, in my view, for obvious or various reasons less serious than the objective seriousness of count one carrying the same maximum penalty. 57In relation to the discount to be provided for the utilitarian benefit of the pleas of guilty, in accordance with the guideline judgment of Thomson and Houlton, which has application, initially I was drawn to the view that it was a discount of ten per cent. But I am now satisfied, fully apprised of the prisoner's intellectual disability and the difficulties pointed to by Mr Carty that the discount should be slightly more than ten per cent, although the prisoner pleaded guilty when the matter was to commence as a trial. There are obviously difficulties in dealing with a man of this man's significant incapacities and I have concluded that the appropriate discount should be one of twelve and half percent to reflect the utilitarian benefit of the plea of guilty. I do note in that regard as far as I am aware the victim has never been required to attend to actually give evidence. I note also that he was left in a state of uncertainty until the last moment. It was submitted in any event by Mr Carty that the appropriate range was between ten and fifteen percent and in that regard the Crown accepts there must be discount for the utilitarian value for the pleas of guilty. 58I do not believe there is a need in practical terms to refer to any other matter that has been raised in submissions, as I said all matters have been taken into account. Thus the sentences I impose are as follows: 59In respect of the alleged breach of s 12 bond, having regard to the terms of s 98(3) of the Act, and noting the breaches admitted, that bond is revoked. This prisoner is convicted. He is sentenced to a term of imprisonment of twelve months to commence on 23 March 2010 to expire on 22 March 2011. 60In respect of counts three and four this is the offences of indecent assault, the prisoner is sentenced to one year, five months, two weeks imprisonment on each count. The starting point of those sentences is twenty months imprisonment. The final sentence includes the Thomson and Houlton discount. Those sentences are to be concurrent with one another and each to commence on 23 September 2010 to expire, as I calculate, on 6 March 2012. 61In respect of count two the sentence imposed upon the prisoner is a non parole period of two years commencing on 23 March 2011 and expiring on 22 March 2013, the balance of sentence is seven months and two weeks. My calculation is the balance of sentence will expire on 6 November 2013. There is no finding as to special circumstances in relation to that sentence, because of the sentences of non parole periods to be fixed for counts one and five which will be concurrent with that sentence. 62In respect of counts one and five the prisoner is convicted and sentenced to a term of imprisonment by way of a non-parole period of three years, to commence on 23 March 2011 expiring on 22 March 2013. I have made a finding of special circumstances. The balance of sentence shall be one year, eleven months and seven days. The starting point of that sentence was four years and six months, the total sentence for those two counts, bearing in mind the sentences to be served concurrently is three years, eleven months and seven days. The starting point for the sentence I impose in relation to count two was three years imprisonment, less twelve and a half percent discount. 63Thus the total sentence imposed is one of four years, eleven months and seven days. The effective nonparole period is three years imprisonment. The effective commencement to the sentences will be 23 March 2010. The effective expiry date of the nonparole period will be 22 March 2013 and the balance of the sentence, effectively, will be, as I said, one year, eleven months and seven days. I cannot direct the offender be released to parole. That will be a matter for the Parole Authority. ********** 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: 28 March 2013