District Court New South Wales Medium Neutral Citation: Regina v Alan Matthew McArdle [2017] NSWDC 239 Hearing dates: 11 August 2017 Date of orders: 01 September 2017 Decision date: 01 September 2017 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 The offender is convicted 2 The offender is sentenced to 2 years imprisonment. That sentence is suspended and the offender is to be released from custody on condition that he enters into a bond to be of good behaviour under section 12 Crimes (Sentencing Procedure) Act 1999 for a period of 2 years. The conditions are that the offender: (1) Is to be of good behaviour and appear before the Court of called on to do so; (2) Is to inform the Registrar of the District Court at the Downing Centre of any change of residential address; (3) accept the supervision and to obey the reasonable directions of the Community Corrections Service with regard to alcohol and other drug counselling and for treatment of his mental condition. That supervision is to continue for the length of the bond or for such shorter time as the Community Corrections Service deems necessary. Catchwords: CRIINAL LAW – offence - plea of guilty – sexual intercourse without consent SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – extra curial punishment – youth of offender – prospects of rehabilitation – circumstances of the offence – available sentencing options – expression of guilt – exceptional case Legislation Cited: Crimes Act 1900 s.61I Crimes (Sentencing Procedure) Act 1999 ss.3, 3A, 5, 66, 76. 12, 21A(3)(e), 21A(3)(f), 21A(3)(g), 21A(3)(h), 21A(3)(i), 21A(3)(k), 21A(3)(m) Cases Cited: R v Thomson & Houlton (2000) 49 NSWLR 383 R v Borkowski (2009) 195 A Crim R 1 Palijan v R [2010] NSWCCA 142 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91 Dinsdale v R (2000) 202 CLR 321 R v Percy [1975] Tas SR 62 Wood v Samuels (1974) 8 SASR 465 R v Barlow [2008] NSWCCA 253 R v Zamagias [2002] NSWCCA 17 Bullock v R [2016] NSWCCA 131 R v May [1999] NSWCCA 40 Muldrock v R (2011) 244 CLR 120 Greenwodd v R [2014] NSWCCA 64 Sabapathy v R [2008] NSWCCA 82 Category: Sentence Parties: Regina (The Crown) Alan Mathew McArdle (Offender) Representation: Counsel: Mr M Gelbert (Offender) Solicitors: C Hyland, Solicitor for Public Prosecutions (The Crown) Crawford & Duncan Lawyers (Offender) File Number(s): 2016/00210348 Publication restriction: None sentence 1. Alan Matthew McArdle (the offender) appears for sentence after pleading guilty on the Local Court to one count of sexual intercourse without consent contrary to section 61I Crimes Act 1900. 2. The maximum penalty for the offence is a term of imprisonment of 14 years and parliament has prescribed a standard non-parole period of 7 years. Facts 1. The parties tendered an Agreed Statement of Facts was tendered that can be summarised as follows. 2. The victim and the offender had known each other for approximately 7 years, as friends. 3. On 11 June 2016 the offender picked up the victim at her house, to attend a party at his house. They arrived at the offender's home at about 5.00pm. There were a number of invited guests at the offender's home when they arrived. 4. At about 8.00pm the victim began drinking alcohol with the other guests. They played drinking games on and off in the backyard. The victim was feeling unwell and had taken cold and flu medication. The victim had consumed at least three shots of alcohol during the drinking games. Afterwards she came into the house and consumed a further six or seven shots of alcohol with the offender. 5. The victim went into the kitchen and took out a bottle of alcohol from the freezer. The offender stopped her and said to her, "no you've had enough". The offender sat the victim on a couch and gave her a drink of water. The victim was highly intoxicated and had to be assisted to walk to a nearby bedroom located between the laundry and the bathroom. The victim recalls the offender lying in the bed with her at that time. The offender was also well affected alcohol. 6. The victim's next recollection was waking up at approximately 5:30am in the same bed. She did not have her clothes on and the offender was lying next to her asleep. She was confused as to how she had taken her own close off when she was so highly affected by alcohol. 7. The victim immediately contacted her mother to collect her, using the offender's mobile telephone as she could not to locate hers. The offender asked the victim to stay but she declined asking where her clothes were. The offender handed her clothes to her. The victim got dressed. She was still feeling the effects of the alcohol from the night before. The offender got out of bed, wearing boxer shorts. 8. The victim collected some personal belongings from the bedroom and was escorted out of the house by the offender. The victim was driven home by her mother. The victim went to the toilet and noticed that she was bleeding however she believes this to be menstrual blood and went to bed. 9. When the victim woke up at about 10:30 AM she noticed pain in her inner vaginal area. When she went to the toilet again she felt a bruising type of pain to the area when she touched it. The victim messaged the offender asking if he had left her alone on the night. He replied that he had not. The victim told the offender that she felt like someone had had sex with her and described her pain. The offender stated that he left her for a while to go and spend time by the fire outside. 10. At about 7 PM the victim drove to the offender's house to collect some further belongings. She noticed that the furniture had been overturned and that the offender was acting strangely by not really talking to her or looking at her. The victim observed that the offender had a red face and eyes as if he had been crying. The victim from the belief that the offender had sex with her while she was unconscious and confronted him. The offender began to cry. 11. The victim left the house sometime later and the offender slammed the door behind her. The victim heard banging sounds coming from within the house when she went to her car. The offender telephoned and sent messages to the victim after she had left the house admitting to having sex with her. He apologised for 'raping' her. The offender told the victim that he wanted to kill himself and he could not live with himself or what he had done. 12. On 13 June 2016 the victim reported the matter to the Police. The victim's mobile phone was taken and examined. The Police located the messages passing between the offender and the victim. The messages confirmed that the offender had penile vaginal intercourse with the victim, but did not ejaculate. The victim told the offender that he withdrew his penis because he thought what he was doing was wrong. The offender expressed remorse, shame and guilt in the messages. 13. The offender also sent a text message to a friend expressing remorse and guilt. 14. The victim was examined by a doctor on 13 June 2016. The doctor observed an abrasion of the posterior forchette. The area was red and tender but not bleeding. The doctor was of the opinion that the injury was consistent with non-consensual sex. 15. Later on 13 June 2016 the Police executed a Crime Scene Warrant at the offender's house. Due to the Police's concerns that the offender may self-harm, Police called an ambulance and the offender was conveyed to Hornsby Hospital for psychiatric assessment. 16. On 12 July 2016 the offender was arrested after voluntarily attending the Hornsby Police Station. Pre- Sentence Report 1. The court received a pre-sentence report (PSR) dated 9 August 2017. The content of the PSR can be summarised as follows. 2. The offender was born and raised in Galston and still resides with his parents in the family home. The offender told the author of the PSR that he had a relatively stable and settled childhood. The offender stated that he has a supportive relationship with all of his family members and that he has told them about the present offence. 3. The offender has retained a small group of friends that have remained supportive. The victim was a friend belonging to the same friend group and his behaviour has caused some social isolation from his peer group. 4. The offender completed his Higher School Certificate at age 17 and expressed disappointment in his grades. He reported struggling in the formal education setting because he found it hard to fit in with any set peer group, having experienced frequent periods of bullying from other pupils. He did not have any discipline issues at school. 5. The offender is employed as a delivery driver but wants to train as a physiotherapist. 6. The offender was introduced to alcohol in his younger teenage years. He did not believe that his drinking was problematic but accepts that he did engage in binge drinking, as on the night of the offence. 7. Since the offence the offender has not consumed any alcohol and stated that he did not want to do so in the future. His abstinence was confirmed by his mother. 8. The offender reported that he was suffering some symptoms of depression and was undergoing treatment. 9. The author of the PSR had available to her Dr Seidler's report. The author noted the opinion of the Corrective Services psychologist and Dr Seidler that there were anomalies in the administration of the risk assessment tool used to predict future reoffending, because of the offender's age and immaturity. It was common ground that the offender requires psychological treatment relevant to personality outcomes rather than specific sex offender treatment. 10. The offender agreed with the Police facts and expressed what appeared to the author of the PSR as genuine remorse. He accepted responsibility for his actions and did not seek to blame the victim in any way. 11. The author of the PSR assessed the offender as a low risk of reoffending, identifying the need to deal with his alcohol use and emotional and personal issues. 12. The offender was assessed as suitable for light duty community service and as likely to benefit from supervision by Community Corrections. A supervision order would be used to refer the offender to a psychologist for assessment and analysis of treatment options and to monitor him for alcohol misuse. Community Corrections Psychologist Case Note Report 1. A Community Corrections psychologist prepared a case note based on a review of available documents without any contact with the offender dated 9 August 2017. The purpose of the report was to conduct an actuarial risk assessment of sexual re-offending by completing the Static 99R, a psychological assessment tool. 2. The psychologist noted that the assessment tool was designed for use with adult offenders and was not particularly suited to adolescents. The offender just met the age criteria for the Static 99R and it was likely to produce an overestimation of actual risk. Based on that tool the offender was at an average level of risk of sexual reoffending. His score indicated a low to moderate risk of reoffending. 3. Based on the Juvenile Seeks Offender Assessment Protocol – II (J-SOAP-II) a risk assessment tool for juvenile offenders, the offender was considered to be a low risk of re-offending. The psychologist opined that this result confirmed that the Static 99R was overestimating the offender's actual risk. 4. The psychologist noted the contribution of alcohol and the offender's pattern of binge drinking to the commission of the offence. 5. The psychologist opined that the offender mis-read a variety of social/interpersonal cues from the victim suggesting limited intimacy skill, communication and interpersonal naivety at the time of the offence. After noting this was the offender's first sexual encounter the psychologist opined that there was confusion of a desire for physical intimacy with victim and not knowing how that can be met without necessarily engaging in sexual intercourse. The offender had a limited understanding of what he thought the victim's desires were. The psychologist stated that the offender was emotionally immature and impulsive at the time of the offence. 6. After the offence the offender has resigned his employment and generally stayed at home dealing with guilt and remorse. The psychologist noted that the offender had suffered from suicidal ideation in response to his remorse and concern for the victim and that there was evidence of past self harm. The psychologist thought that acute problems with the offender's mental health were likely to continue with our psychological intervention. 7. The psychologist noted that the messages between the offender and the victim showed that he had desisted from the offence when he realised what he had done was wrong. There did not seem to be any problems of sexual self-regulation. 8. The psychologist opined that he was unlikely to require specialist sex offender treatment, although he does require assessment. This assessment could help with risk management case planning. The psychologist recommended that with the history of suicidal ideation and instances of self harm that the offender should engage a private psychologist to improve his coping skills in times of distress. The Offender's case on sentence 1. The offender gave evidence before me and was cross-examined. The salient points of his evidence can be set out as follows. 2. The offender was supported in Court by his parents, extended family and friends. 3. He had read Dr Seidler's report. He confirmed its contents were accurate and that he had told her the truth when he spoke to her. He had read the facts and accepted their contents as accurate and truthful. 4. The offender is presently 19 years of age. He has 3 older siblings. He was working as a casual tree lopper and working as a barista in a café. He wants to undertake tertiary study in physiotherapy or exercise science. 5. He suffered a back injury 2 years ago and underwent surgery in July 2016. He had part of a disc removed. He has recovered fairly well, but does experience pain if he is sedentary for too long. 6. On 11 June 2016 he arranged to have a party at his house, when his parents were away. The victim attended the party. The victim had participated in drinking games with other guests at the party as well as drinking shots with the offender. When she went to retrieve a bottle of Russian vodka from the freezer, the offender told her that she had had enough. He gave her a glass of water and should they sat on the lounge. He then escorted her to the spare bedroom. 7. The victim asked the offender to stay with her and to get into bed with her. He thought that this was probably at about 11:30 PM. They both fell asleep. In the early hours of the morning he woke up finding her "grinding" on his leg. She had one leg over him and lent her hip up against his. Her crotch was rubbing against his thigh. They both fell asleep again. Sometime later the offender woke to find the victim on top of him and rubbing up against him. The offender interpreted this as a come on and an invitation to have sex. Before going to bed the offender described himself as significantly intoxicated, perhaps a 7-8 out of 10. The victim was also highly intoxicated. 8. The offender confirmed that he had penile vaginal intercourse with the victim in the manner described in [46] of Dr Seidler's report. He thought that the intercourse lasted 3-5 seconds. He did not ejaculate. It was his first sexual experience. He stopped because he felt the victim become unconscious. 9. The next day when the victim came to the offender's house he was very upset. He had thrown furniture around the house. He was angry with himself for what he did. He was crying and felt disgusted with himself. He threw more furniture around the house after victim left. 10. When the police came to his house, he was taken by ambulance to Hornsby Hospital. He told the medical staff that he felt sick and disgusted and that he had been lying in bed crying for most of the day. When he was discharged from the hospital he went to stay at his brother's house because he was feeling bad, he wanted to be with people that loved him and he wanted to avoid any temptation to have further contact with the victim. 11. The offender still thinks about the offence every day and has flashbacks when he goes past the bedroom in his house. 12. In cross-examination the offender accepted that he liked the victim and wanted to be more than a friend to her. He agreed that she was highly intoxicated. He accepted that he did not wear a condom. 13. The offender accepted that the victim told him that she had pain and that she was trying to piece together what had happened when they were in contact with each other on the next day. He accepted that he initially denied having sex with her and tried to blame it on another male at the party. He agreed that the victim made her own enquiries of the other male before he admitted that he had sex with her. The offender denied being in love with the victim. 14. When giving evidence, the offender was an impressive witness. He made appropriate concessions against his own interest and appeared to be genuinely remorseful. He was not challenged in cross-examination on his version of how the events relevant to the offence occurred. Whilst it is fair to say that the prosecution did not have instructions on which it could put a positive alternate case, but it was not suggested to the offender at any time that he had tailored his evidence to minimise his involvement on the offence. I am left with the only evidence about the lead up to and the commission of the offence coming from the offender. It was not submitted that his evidence was in conflict with the agreed facts. I am satisfied that by reference to the offender's evidence and the way that he gave evidence that I should accept him as a witness that was trying to do his best to tell the truth. As a result I find that the offence took place over a very short time frame after the victim appeared to be interested in having sex and that he ceased the offence when the victim appeared to lose consciousness. Psychological Evidence 1. The offender tendered a report of Dr Katie Seidler, Forensic Psychologist dated 24 April 2017. The psychologist saw the offender once for the purpose of preparing the report. The can be summarised as follows. 2. The offender is the youngest of 4 children. He was raised in a caring and supportive environment by his parents. The offender has experienced relationship issues with various members of his family at different times. The family is currently estranged from one of his sisters. He described his father as having alcohol misuse issues and as being less than supportive, when intoxicated. 3. The offender suffered social problems at school. He had very few friends and believes that people at school found him annoying because he was excessively talkative. He experienced physical and verbal bullying at school. The offender reported being an average student and he did not have any disciplinary problems. 4. The offender completed his Higher School Certificate in 2015 and was unhappy with his results, feeling that he could have done better. He did not gain entry to the University course he wanted to do. He gained entry to the Australian College of Physical Education, but had to defer entry to have back surgery. He wants to become a physiotherapist. 5. The offender has had a range of jobs, including being a tree lopper in his father's business and working in fast food outlets. He ceased work as a delivery driver after the offence, because his delivery area included the area where the victim lived. The offender now works a barista and a cook in a café. 6. The offender has suffered sporting injuries to his left knee, nose and right wrist. He has undergone back surgery involving the removal of cartilage and disc that was causing sciatica. He does not presently take prescription medication but did take Lyrica for an extended time to control his back pain. 7. The offender only had one previous relationship with a 14 year old female when he was the same age, that lasted for about 3 weeks. 8. The offender lost his virginity in the offence. He denied any deviant sexual behaviours. The offender accepted that his previous understanding of consent was superficial. Dr Seidler did not find this surprising considering his youth and lack of relationship and sexual experience. The offender commented that he had distorted ideas about how a partner may demonstrate consent. He recognised the impact of sexual abuse on victims. 9. The offender gave a history of first consuming alcohol when he was 17. He described a conventional young adult recreational binge drinking pattern. He did not believe that his alcohol abuse was problematical indicative of dependence. He accepted that alcohol made him feel aroused. The offender has not used any illicit substances and does not gamble. 10. The offender told Dr Seidler that he has pleaded guilty to the offence on the basis of the facts presented. He met the victim in Year 8 and they became friends. The offender like the victim a lot and he thought she may be interested in him. In more recent times the offender described the victim as being very flirty and he was hopeful that she liked him. The offender told Dr Seidler that a friend told him on the night that the victim wanted to have sex with him. When the victim cuddled up to him on the lounge and put her legs across him the offender thought that she was interested in him sexually. 11. On the night the victim was so drunk that she was falling in and out of consciousness. He asked her to stay over and he took her to bed, when she asked him to stay with her. During the night he woke to find the victim rubbing up against him which he interpreted as being a sexual invitation. The offender told Dr Seidler that the victim told him she was hot and wanted his help to take her clothes off which the offender believed was another expression of a sexual interest in him. The offender was confused as to what to do but was feeling aroused. In the context of what he thought were sexual advances he started having sex with her. Shortly thereafter she seemed to lose consciousness and he desisted from having intercourse. 12. On the next morning the victim contacted the offender and asked him if they had sex. The offender was embarrassed and concerned that she had not remembered it and he chose to pretend that it never happened. Dr Seidler reported that the offender expressed genuine and appropriate remorse reason of behaviour. 13. The offender has experienced episodes of depressed mood from his early adolescence. His low mood lasted usually several weeks at it involved him feeling down, isolating himself from others losing motivation and pleasure and suffering from symptoms associated with lethargy, reduced appetite, poor libido and negative thinking, even to the extent of suicidal ideation. 14. The offender has not had any suicide attempts but has had suicidal ideations on a number of occasions, usually at times when he is experiencing significant life challenges; including when he was in Year 8 and after being charged with the present offence. He has had one episode of self-harm when he cut his leg after his girlfriend ended their relationship at age 14. 15. The offender has also experienced episodes of anxiety, particularly in Year 12. He has experienced symptoms of panic attacks including chest tightness and hyperventilation. He has had a history of being anxious around females that he was interested in. 16. At the time when the Police came to his house he was admitted to hospital for 3 days. He was treated with medication but not given a formal diagnosis. He was not advised to seek follow up treatment and did not do so. 17. Dr Seidler administered psychometric testing that presented slightly problematic results, suggesting that the offender was being defensive in some areas and overstating some symptoms. After interpreting those results, Dr Seidler opined that the offender was naïve and confused about consent, had trouble with interpersonal relationships, was confused by the victim's behaviour and was disinhibited by excessive alcohol consumption. 18. Dr Seidler noted that the offender was young, immature and had experienced difficulty with attachment, leaving him inexperienced in sex and intimacy as well as being interpersonally anxious around females and struggling with poor self-esteem. 19. Dr Seidler administered the Static 99R and obtained a score indicating an above average risk of re-offending. Dr Seidler pointed out the limitations of the Static 99R and stated her opinion that he presented a low risk of re-offening. On this issue I prefer the clinical opinion of Dr Seidler, which coincides with the opinion of the Community Corrections psychologist. 20. Dr Seidler opined that the offender would find gaol difficult and it would render him vulnerable to a deterioration in his mental health. 21. Dr Seidler recommended that the offender would benefit from psychological treatment aimed at improving his self-esteem, mood management, relationship and intimacy skills and developing a safe sexuality. 22. The offender tendered a report from Dr Tony Robinson, Clinical Psychologist dated 2 August 2017. Dr Robinson is the offender's treating psychologist who has seen the offender for 2 therapy sessions. His report adopts and supports the detailed history provided to Dr Seidler. 23. Dr Robinson opined that the offender will benefit from continued psychological treatment in the community. Dr Robinson notes that the offender's general practitioner has diagnosed the offender with an adjustment disorder and has provided treatment to the offender focusing on specific psychosexual treatment including education as to safe sexuality practices, understanding of consent as well addressing low self-esteem and developing a life plan. 24. Dr Robinson recommends monthly ongoing treatments with the offender to address his identified issues and intends to continue this therapy. Character References 1. The offender tendered four character references. [1] These character referees hold the offender in high esteem. He has disclosed the circumstances of the offence to each of them, accepted responsibility for the offence and expressed remorse. Consideration Objective Seriousness 1. The offender and the victim had been friends for some time and she was entitled to feel safe in his company. The victim's level of intoxication made her vulnerable. The offender did look after her by refusing her further alcohol, providing her with water and putting her to bed and this should be considered as a mitigating circumstance. 2. The offence involved non-consensual penile vaginal intercourse which is considered to be a serious form of violence. The courts treat the offence very seriously, even where no additional violence is perpetrated on the victim. 3. The duration of the offence was very short; a matter of seconds. The short duration of this type of offence would not ordinarily be a factor that reduces the objective seriousness of it, however I am satisfied that this is an exceptional case. The short duration of the offence was not something that was designed to avoid detection, but arose in circumstances where the offender desisted in the offending conduct because the victim passed out and he thought it was wrong to continue. It was the immaturity and sexual inexperience of the offender in the context of the victim's behaviour that led him to be reckless as to her consent, and to embark on what was a very limited but nonetheless serious assault. 4. The offence was not planned. 5. The victim was conscious at the commencement of the offence and this case must be distinguished from cases where the victim was unconscious and thereby totally helpless and obviously not in a position to consent, such as Greenwood v R [2014] NSWCCA 64 and Sabapathy v R [2008] NSWCCA 82. 6. The victim has experienced emotional harm, psychological symptoms humiliation and embarrassment. 7. The maximum penalty for the offence is 14 years imprisonment and there is a standard non-parole period of 7 years. I have had regard to both as legislative guideposts to the appropriate sentence. 8. The objective seriousness of the offence is in the low range. Deterrence 1. The penalty imposed in relation to offences of this type must provide for general deterrence. 2. General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge: The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91. 3. The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, whether the offender acted with knowledge of what they were doing and the gravity of their actions and whether the community require protection from the offender by reason of the mental condition suffered. 4. General deterrence can also be afforded less weight when the offender is young and acts immaturely in committing the offence. In such a case, rehabilitation plays a more significant role than retribution and deterrence: Bullock v R [2016] NSWCCA 131. A person who is only just over 18 should be treated the same as a person who is a few months younger. 5. The offender has suffered significant and serious psychological symptoms in the course of his adolescence, including self-harm and suicidal ideation. Dr Seidler opined that his symptoms were consistent with Persistent Depressive Disorder. He has also experienced poor self-esteem and difficulties in forming relationships, which is a direct result of his immaturity. There is a strong causal connection between that immaturity and the commission of the offence. The offender is a first offender and in my view unlikely to reoffend and I am satisfied that he does not pose any risk to the community. 6. The need for specific deterrence is significantly reduced. The offender has accepted responsibility for his actions within 24 hours of the offence and expressed remorse for them. He has commenced appropriate rehabilitative treatment. Aggravating factors 1. There are no relevant aggravating factors. Mitigating factors 1. The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. 2. The offender was a person of good character: section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The character references demonstrate that the offender was considered to be a young man of excellent character, who was trustworthy, loyal and responsible. 3. The offender is unlikely to reoffend: section 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The offence occurred in the context of the offender's immaturity, his lack of sexual experience, his level of intoxication and his psychosocial development. The offender has begun appropriate rehabilitative treatment and has maintained abstinence from alcohol. I am satisfied on the balance of probabilities that he is unlikely to reoffend. 4. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender is very young. He has a supportive family and a close knit group of friends. He has sought out and accepted psychological treatment to address his persistent symptoms of depression. He has accepted responsibility for his actions and has abstained from alcohol since the offence. He has maintained regular employment and has firm plans to undertake tertiary qualifications. I am satisfied on the balance of probabilities that he has good prospects of rehabilitation. 5. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender expressed remorse to Dr Seidler, to the author of the PSR, in his evidence and to the victim. The offender accepted responsibility for his actions very shortly after the offence and I am satisfied that he has expressed genuine remorse and contrition. 6. The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. The offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range a particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%. 7. The offender co-operated with the investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. The offender made admissions in writing to the victim that were sufficient for the prosecution to prove its case against him. The offender attended Hornsby Police Station voluntarily when requested to do so. This is a case in which this mitigating factor should be given significant weight. Penalty 1. The offender is convicted. 2. I have considered the Victim Impact Statement (VIS). It describes ongoing trauma and difficulties that she has suffered as a result of the offence. The VIS was not challenged, but it does not go so far as to establish substantial harm beyond what might be reasonably expected for offences of this kind. 3. I have considered section 5 of the Crimes (Sentencing Procedure) Act 1999 having considered all other alternatives there is no penalty other than imprisonment that is appropriate. 4. The appropriate term of imprisonment is 2 years and 8 months that will be reduced by 25% to reflect the plea of guilty, being a term of 2 years imprisonment after discount. 5. It would be unusual if a conviction for a section 61I offence did not result in a full time custodial sentence, however there can be exceptional cases where a full time sentence is not required: R v May [1999] NSWCCA 40 at [10] per Abadee J (Spigelman CJ and Adams J agreeing). 6. An intensive corrections order and home detention are not available for a section 61I offence: sections 66 and 76 Crimes (Sentencing Procedure) Act 1999 respectively. 7. A sentencing court must approach the imposition of a suspended sentence on the basis that it can be sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. It should also be recognised that the immediate suspension of the sentence deprives the punishment of much of its effectiveness in this regard, because it is a significantly more lenient penalty than any other sentence of imprisonment. The appropriateness of a suspended sentence must be determined on a case-by-case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. The protection of the community can be achieved in an appropriate case by a sentence designed to assist the rehabilitation of the offender, at the expense of deterrence, retribution and denunciation. In that case a suspended sentence may be particularly effective and appropriate: R v Zamagias [2002] NSWCCA 17 at [32]. 8. A suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and is most likely to benefit from the exercise of the court's clemency. The purpose of suspending a sentence is "primarily rehabilitative" and a sentence of imprisonment should not be suspended unless there is a reasonable prospect that the suspended sentence will have sufficient deterrent effect or will be likely to bring about the rehabilitation of the offender. The discretion to impose a suspended sentence is not confined by considerations relating to rehabilitation: R v Barlow [2008] NSWCCA 253 at [62]-[63] quoting from Wood v Samuels (1974) 8 SASR 465 at 468, R v Percy [1975] Tas SR 62 and Dinsdale v R (2000) 202 CLR 321. 9. The imposition of a suspended sentence involves two components, namely the imposition of a term of imprisonment and the suspension of it where that is legally and factually justified. 10. I am satisfied that this is an exceptional case and an appropriate one to impose a suspended sentence for the following reasons. 11. First, whilst a serious offence it is in the low range of objective seriousness. Second, the offender suffered from an undiagnosed and untreated mental condition that resulted in him having difficulty in forming relationships and at the time of the offence he was emotionally immature. In those circumstances general deterrence and retribution should be afforded less weight in the sentencing exercise. Third, the offence was committed through the immaturity of youth, as well as sexual and relationship inexperience and rehabilitation must be the focus of the sentencing exercise. Fourth, the offender has demonstrated that he has good prospects of rehabilitation and that he is prepared to engage with appropriate treatment. Fifth, the interests of the community can be best served in this case by the rehabilitation of the offender. 12. The offender is sentenced to 2 years imprisonment. That sentence is suspended and the offender is to be released from custody on condition that he enters into a bond to be of good behaviour under section 12 Crimes (Sentencing Procedure) Act 1999 for a period of 2 years. The conditions are that the offender: 1. Is to be of good behaviour and appear before the Court of called on to do so; 2. Is to inform the Registrar of the District Court at the Downing Centre of any change of residential address; 3. accept the supervision and to obey the reasonable directions of the Community Corrections Service with regard to alcohol and other drug counselling and for treatment of his mental condition. That supervision is to continue for the length of the bond or for such shorter time as the Community Corrections Service deems necessary. ********** Endnote 1. See character references from Michael Massingham dated 11 June 2017, Danielle Doughty dated 12 June 2017, Jo-Ann Billyard dated 19 June 2017 and Dave Salmon dated 3 July 2017. Amendments 05 September 2017 - Appearances Corrected 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: 05 September 2017