R v NAHN, William [2017] NSWDC 432

District Court New South Wales

Medium Neutral Citation: R v NAHN, William [2017] NSWDC 432 Hearing dates: 8 December 2017 Date of orders: 15 December 2017 Decision date: 15 December 2017 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Full time custodial sentence. Full details at [97]. Catchwords: Criminal – sentence – after trial – sexual intercourse without consent – indecent assault – whether standard non-parole period applies to 'attempt' offences – offence occurred within female toilets of a licenced venue – victim affected by alcohol – victim impact statement – psychological report of the offender conflicted with his evidence of denial – prior relevant criminal history – subsequent offence only considered in determining likelihood of reoffending – treatment of mental condition on sentence – special circumstances found Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Cases Cited: DAC v R DPP (Cth) v De La Rosa [2010] NSWCCA 194 Engert [1995] 84 A Crim R 67 Hanney [2014] NSWDC 13 Kearsley [2017] NSWCCA 28 Pearce v The Queen (1998) 194 CLR 610 Category: Sentence Parties: Regina William Nahn Representation: Counsel: Ms. Barnes – Director of Public Prosecutions Ms. Orman-Hales – Offender File Number(s): 2016/00235881 Publication restriction: No publication of identity of victim

SENTENCE 1. HIS HONOUR: William Nhan today appears for sentence in relation to two offences in respect of which he was found guilty by a jury on 30 October 2017. He was arraigned on 20 October 2017 in respect of an offence of sexual intercourse without consent, committed upon the complainant on 10 June 2016. Alternatively, attempted sexual intercourse without consent, which was count 2; and a third count of indecent assault. The jury found the accused guilty of the alternative count, which was count 2 and count 3. 2. The prisoner has been in custody since the verdict on 30 October when he was refused bail. But I am advised by the Crown there were two days of pre‑sentence custody, or what should be calculated as two days, and thus the sentences that I impose will effectively commence from 28 October 2017 to give full credit to pre-sentence custody. The maximum penalty for an offence of attempting sexual intercourse without consent is 14 years' imprisonment, the maximum penalty for the offence of indecent assault is five years' imprisonment. Attempt sexual assault without consent is an offence created by the combination of the operation of s 61I and s 61P which deals with attempts to commit offences pursuant s 61I, 61J, 61J(a). The offence of indecent assault the Crown informs me is brought pursuant to s 61L Crimes Act 1900. 3. The Crown's cover sheet indicated there was no standard non-parole period in relation to each offence. Learned counsel for the prisoner's written submissions referred to the fact that there was a standard non-parole period for the attempted sexual intercourse without consent knowing the complainant was not consenting of seven years' imprisonment. I have discussed that matter with the learned Crown Prosecutor. The solicitor representing the prisoner this morning has been put completely on the spot. He was, as I remember it, not involved in the trial and certainly as I would understand it, is not fully conversant with all the legal issues that arise in relation to the sentencing matter. He has been unable to contact his counsel to discuss what I have discussed with the Crown. I appreciate that presents some difficulties in the situation in which he finds himself. But I have assured him that the conclusion I have reached in light of the discussion I have had with the Crown does not operate to the prisoner's detriment. 4. When I researched the matter last evening I came to a view, without the aid of submissions and without the aid of access to extraneous material such as second reading speeches and the like, that there would appear to be a standard non-parole period for the offence of attempted sexual intercourse without consent knowing the complainant was not consenting, by the combined operation of s 61I and s 61P. Section 61I provides for a maximum penalty of 14 years' imprisonment as I have said. Section 61P states that in respect of an attempt to commit an offence pursuant to s 61I and other offences, and if a person is "liable to the penalty provided for the commission of the offence." When considering the maximum penalty in relation to the s 61I offence, what is required by operation of the Crimes (Sentencing Procedure) Act 1999 (herein after to be referred to as The Act) is to have regard to Pt 4 Div 1A of that Act, which provides for standard non-parole periods in relation to particular offences. Particularly when one has regard to s 54D and the Table attached thereto, item 7 identifies s 61I as an offence that has a standard non-parole period of seven years. 5. The Crown has drawn my attention this morning however to a decision from 2006 of DAC v R, which my associate has just printed off for me, and particularly drawn my attention to [8] to [10] of that judgment. Howie J spoke for a court comprising himself, Tobias JA, and Rothman J. His Honour concluded in the context of that appeal that where an offender had been convicted of attempted sexual intercourse without consent knowing the complainant was not consenting that there was no standard non-parole period for the offence. 6. The basis of that conclusion is set out in paras 9 and 10 of the judgment with a concession of error there by the learned Crown Prosecutor in the appeal. It is found in the second reading speech of the Attorney General introducing standard non‑parole periods, where he said that it was not intended at the time to include attempt offences in the Table except for the various manifestations of the offence of attempted murder. Further, there is reference made to a question referred to in the Sentencing Council concerning the issue of whether attempt offences should be included in the Table. 7. Interestingly, whilst it is true to say that attempts to murder pursuant to s 27, 28, 29, or 30 are designated to have a standard non‑parole period of ten years, and are thus offences for which there is a standard non‑parole period, they are all offences that carry a lesser maximum penalty than the offence of murder. Murder carries a maximum penalty of life imprisonment. My reading of the Crimes Act just a moment ago indicated that those particular 'attempt' offences carry a maximum penalty of 25 years' imprisonment, a lesser maximum penalty than that for the completed offence, which is not the case here. 8. I come back to the wording of s 61P which indicates that a person who is convicted of attempted sexual intercourse or sexual assault offences of particular types is liable for the same penalty as the principal offence. In any event, I bow to the reasoning of the Court of Criminal Appeal in DAC which addresses the matter directly. I accept on the basis of their Honours' reasoning that unless a particular offence is specifically identified as requiring a standard non‑parole period, then a standard non-parole period does not apply notwithstanding the ambiguity of the wording - if I could use that expression - of 61P. 9. With regard to the fact finding arising out of the jury's verdicts, of course, the facts I find in relation to the matter obviously must be consistent with the conclusion the jury reached that the accused attempted to have sexual intercourse without the consent of the complainant knowing she was not consenting and at the time, as the evidence indicated from the complainant, committed the offence of indecent assault. I do not propose to publish in this judgment the name of the complainant or any witnesses who gave evidence in the case. 10. At the trial, not only did the complainant give evidence, but the prisoner gave evidence in his defence. There were a large number of witnesses, who were present at the relevant venue where these events occurred over a period of time, who gave evidence in relation to a range of matters concerning the behaviour of the prisoner and the complainant before the relevant events giving rise to the charges, and their behaviour afterwards, as well as other related matters, including matters relating to complaints subsequently made by the victim. 11. The prisoner's evidence was that he denied any sexual contact with the complainant in the circumstances described by the complainant although he agreed with the context in which the sexual assaults were alleged to have been committed. That was, that he was present in the women's toilet at a particular bar in Surry Hills with the complainant when she was in a cubicle of the toilet, being sick from excessive consumption of alcohol. 12. The critical issue for the jury to consider, although they were directed on all relevant matters going to the issue of guilty or otherwise, was whether there had been sexual intercourse or attempted sexual intercourse as alleged by the complainant, and/or whether there had been an indecent assault as alleged by the complainant. 13. The background to the matter was that the prisoner was a person of some authority and importance within Transport New South Wales, who worked both at a City office and at what was described as the Burwood office of Sydney Trains from time to time. The victim had been working at the Burwood office of Sydney Trains and, as I understood the evidence, occasionally in the City office for a limited time on some form of short term contract. The prisoner and the victim were known to each other, but not well. 14. The offences for which the prisoner is to be sentenced were committed during the course of a function at a bar restaurant in Surry Hills, called 'Goros', to farewell a work colleague whose evidence was of some importance in the conduct of the trial. The prisoner and the victim had not had any prior sexual contact but had some social contact in the past. In fact, on the day of the offences as I understand it, the prisoner, the victim, and some other people went to lunch together at Burwood. 15. The farewell concerning the work colleague was to be held at the bar, that I identified in Surry Hills, starting sometime after 5pm. The prisoner and the victim travelled to the bar from Burwood, both arriving at about 5.30pm, or thereabouts. Ultimately over the course of the evening, which was over the next five or six hours, there were up to 20 odd people associated with Transport New South Wales or Sydney Trains who came and went from the function. 16. Part of the evidence at the trial included CCTV footage from within the bar area from different angles, and also within the toilet area. The jury had ample opportunity to view many interactions that occurred between the prisoner and the complainant or victim, and the prisoner and the victim and other people during the course of the evening. It was a social function that was well lubricated by consumption of alcohol, including on the part of the prisoner and the victim. 17. I do not propose in the finding of facts in relation to this matter to analyse all the various competing aspects of the evidence but simply to determine the facts as they are relevant to the matters for which the prisoner is to be sentenced on the basis of the verdicts of the jury. 18. Throughout the evening from 5.30pm the prisoner and the complainant drank a range of alcohol, but it would appear on the evidence at trial and my viewing of the CCTV footage that the complainant was, by 9pm in the evening, more affected by alcohol that she drank than was the prisoner and was more affected by that alcohol when the offences were committed. The victim's evidence at trial seem to suggest, at least implicitly, that something had happened to her drinks or they had been tampered with. But it seems quite clear from the evidence that she ended up in the state that she was in simply because she drank too much alcohol. Whether this was unusual for her, notwithstanding her evidence on the point, I am unable to say. She drank so much alcohol to the point where she began to feel sick. 19. Prior to leaving, if I could call it, the disco area of the bar, where most of the interaction of the staff occurred, the prisoner and the victim at various times were shown on the CCTV footage that was tendered standing close to each other and touching or holding each other in a range of ways. The prisoner clearly gave the victim attention during the course of the evening including involving himself in physical contact, as did the victim towards him. My viewing of the matter from the CCTV footage that I saw was that his physical interaction with the complainant was not discouraged. In my view the prisoner was encouraging physical contact, or flirting with the complainant, as she was with him. Both persons were clearly disinhibited by alcohol. 20. By about 9pm the victim was sitting and talking to another member of the group, but not the prisoner. She complained of feeling unwell and started to feel sick. She subsequently went to the ladies toilet where she entered a cubicle to vomit. She was in there for a period of time after 9pm and the person in whose honour the party had been held, who knew the prisoner well and was obviously closely associated with him in a professional capacity, went looking for her to find out if she was all right. 21. She told the prisoner that the victim was in the toilet and being sick and he, very foolishly, but in my view initially in good faith, in company with the woman who was the beneficiary of the function, went into the toilet with her quite openly. In fact as I understood the evidence there were some women in the toilet area to whom the prisoner excused himself for being present. 22. He went into the cubicle where the victim was vomiting sometime around about 9.30pm and he locked the door, although on the evidence available to me there is nothing particularly sinister about that. The cubicle is a relatively small area and the door unless it was locked would have kept opening. Clearly the victim required some privacy at that particular time. I do not accept any suggestion that the prisoner entered the cubicle for the purpose of sexually assaulting the complainant. But whilst in the cubicle over a period whilst providing assistance to the complainant, the prisoner, ultimately in circumstances I will detail in a moment, removed the lower clothing of the complainant and attempted to penetrate the complainant's vagina or genital area with his penis after pulling down his trousers and underpants. It was at this time that he also indecently assaulted the complainant. 23. The victim's evidence was that she was vomiting in the toilet and at one point after the prisoner had been in the toilet for some period of time she turned around and saw the prisoner with his underwear exposed. She said it was quite striking in its colour, it was red. She said that he pulled out his penis to show her. She said, however, she was vomiting so hard she was having convulsions that caused her to have what she described as "little blackouts." 24. She was wearing a loose fitting top which appeared to have slits in it and was wearing long pants or jeans underneath which were what she described as Ambra shapers which she described were like bike pants. She could feel his hands pulling on her breasts from underneath with her bra strap undone. That allegation gives rise to count 3 for which the prisoner is to be sentenced. She said her pants and underwear were pulled down. The prisoner had his hand around her hips from behind and endeavoured to penetrate her genitalia. She said she could feel him "poking around there". Her pants and underpants were eventually down near her thighs. 25. She, on my viewing of her from CCTV images, was a taller person and a larger person than the prisoner. She said that he forced her legs down. She said this, "I was blacking out a bit, I'm not sure how much he got in, he penetrated me. He had a very very small penis, I don't believe it would have been that, he would have been able to get it in that far, it was very very small, I could feel some poking in there". She was asked: "Q. You said - you referred to his penis as very small, what did you feel when you say something penetrated a bit? What part of Mr Nhan was that? A. Hands. Fingers as well as maybe - I'm not sure like if it was his hand, if it was his fingers or his penis because it felt the same…and the I blacked out again". 1. She said she could not remember how long she blacked out for. She said she regained some awareness after vomiting so much. She also said that she had a number of glasses of water. 2. I am satisfied on the evidence available to me, notwithstanding the reference to "blackouts", that the episode of sexual assault was for a relatively short period of time. It was interrupted either by a lack of determination on the part of the prisoner to continue or by the fact of somebody banging on the toilet door interrupting what was going on. 3. It must be said, on the evidence available at the trial, that while the prisoner was in the cubicle with the complainant on a number of occasions the work colleague who had brought the prisoner into the toilets and others were communicating with the prisoner inside the toilet. As the victim herself said water was passed in, although she spoke in derisory terms of the assistance provided to her by the prisoner in terms of cleaning up after her. The evidence revealed that from time to time the prisoner sought assistance from particularly the work colleague to whom I have earlier referred and opened the door from time to time to allow things like water and tissues and the like to be passed into the cubicle. 4. I note in relation to the matter that the prisoner did not try to sneak into the toilet. He was quite open about his presence in the toilet, although that was incredibly foolish on his part. He was inside the cubicle for about an hour. As follows from what I have earlier said, he was obviously not sexually assaulting the complainant the entire time. She does not allege that herself. As I said, the sexual activity itself was a relatively short episode. 5. At some point of time after 10pm a girlfriend of the prisoner, who the prisoner had invited to join him at the bar, arrived at the bar and ultimately went into the toilet looking for him. She made something of a scene which ultimately caused him to leave the cubicle. 6. At that time his presence in the women's toilet came to the attention of bar security staff who were not very pleased to discover that there was a male person in the ladies toilet, although many ladies seemed to have known that fact, because a couple of them spoke to security about the prisoner trying to help the victim, or at least one person did. 7. The victim, of course, was to a degree vulnerable, primarily in that the prisoner took advantage of her when she was intoxicated and in some physical distress. She certainly was not in any condition to offer great resistance to the prisoner. 8. On the evidence at trial, including the victim's account, the only explanation for the prisoner's conduct, which was in its measure in my view uncharacteristic, is that he believed that his previous conduct towards the victim and her reaction to it was some form of encouragement for him to believe that she had some sexual interest in him. However, her evidence is clear that at no time in the toilet cubicle did she encourage him at all and she registered her protest at what he was doing. She was in fact more concerned with her own physical wellbeing as she was frequently vomiting. 9. I accept the evidence of the prisoner that he was, for a period of time within the cubicle, assisting her. When the victim was found in the cubicle after the prisoner had left, there was little evidence of the substantial vomiting that had occurred consistent with his attempts at cleaning up the mess that was being made. 10. She was found by a staff member sitting on the toilet in a somewhat inebriated and dishevelled state. She had no appreciable physical injuries. After the victim left the cubicle and regained her possessions she gave no physical indication of any annoyance or disapproval of the prisoner. She, based upon the CCTV footage, for a period of time was outside the club with the prisoner while she waited for transport to take her home and he assisted her into that vehicle. However, the next day and following she made a number of complaints about what happened. It was a long weekend that followed this function and she went to the police after a few days. 11. The prisoner's conduct established by the evidence was, in my view, opportunistic, not premeditated, but it was also self‑evidently exploitative of the situation that presented itself to him. 12. In the context of the prisoner's then personal relationships, as I understood them from the trial and now know better from subsequent evidence, along with the observation of his conduct under the cruel glare of the CCTV footage within the bar, I formed the impression that the prisoner regarded himself as something of a 'Don Juan'. During the evening he was very touchy-feely with the victim, as she was with him on occasions. I note he was in a relationship with a person which was souring at that particular time and as I have earlier indicated he also had a girlfriend who he had invited to the bar, notwithstanding the attentions he was giving to the victim earlier in the evening. 13. I certainly do not wish in any way to downplay or trivialise his criminal conduct. But, on the Crown case and the evidence available at the trial, at least on this particular evening he demonstrated a libido which lacked the discernment to distinguish appropriate and inappropriate, or criminal, behaviour and unleashed it, it would appear, under the effects of alcohol. The complainant's behaviour, however it may be classified on the evidence at trial, was definitely not an invitation to be sexually molested without her consent. 14. The victim has provided a victim impact statement setting out details of her background, her reasons for being in Australia at the time being a New Zealand citizen, the impact upon her employment and her personal relationships and personal security because of the prisoner's conduct. She did write in her victim impact statement "I hate Chinese men" which I found a somewhat disturbing assertion. It was not expressed in a manner that suggested it arose solely out of the events of this night. She stated in her victim impact statement that she was particularly anxious around "Chinese men". She said that it would seem, over the period of time when the prisoner must have been on bail, that she saw "a lot of Chinese men that looked like him and they are like minions in Sydney". 15. She claimed in her victim impact statement to "scrutinise their faces very thoroughly to make sure they are not him but this causes distress". I appreciate the prisoner is Asiatic in appearance but I understand he is Vietnamese of origin, although whether his family are Chinese Vietnamese I do not know. She stated in her victim impact statement that the conduct of the prisoner has had an effect upon her relationships with other men. She complains about how she was treated by her employer. It would seem to me on the basis of the evidence at the trial the prisoner was a well‑regarded popular member of the staff and it would appear as though one of the consequences of her complaint against him is that she suffered some isolation in her work. 16. I have taken into account what she has put in her victim impact statement in the context of the requirement to consider it pursuant to the relevant legislative provisions. Of course some of the assertions within it have not been the subject of testing in court. One of the matters, as I have earlier pointed out, the assertion of not liking Asiatic men, is a matter it seems to me, if it was true at the time of the alleged offences, may have been relevant to the conduct of the case. But perhaps there is some ambiguity in the victim impact statement to reflect the fact simply that the victim has had a reaction to this experience which causes her to lump a particular racial group in a particular category. 17. The prisoner was born on 6 June 1981. As I would calculate it this offending occurred four days after his 35th birthday. He was in custody for a period of two days in early August and then, as I said, from the date of verdict. He was not subject to conditional liberty at the time of the offending. He has a number of criminal convictions however. He has convictions for driving with a mid-range of prescribed concentration of alcohol in 2003, 2008 and 2012. For those offences he was variously convicted, fined, disqualified and/or ordered to serve community service. He has a conviction for driving whilst disqualified in 2012. 18. He has a conviction for violence that predates the offending with which I am concerned. In January 2008 he was convicted of common assault and damaging property. He received two s 9 bonds pursuant to "the Act" and two Apprehended Domestic Violence Orders were issued in respect of the person in need of protection, who I understand to be a woman. Whilst on bail in relation to these matters in March 2017 he was charged with, and ultimately convicted of, reckless wounding of the person who was his partner at the time of the offending. I do not propose to put her name on the record. He was obviously refused bail and sentenced to six months imprisonment which commenced on 20 March 2017, the sentence expiring on 19 September 2017. As I understand it that order was not appealed. 19. At the time of that offending the prisoner and the victim lived in an apartment in Glebe. They were ending their relationship, effectively living separately under the one roof. On the evening in question the victim had been to some form of work function. She came home. She had an argument with the prisoner. The prisoner pushed her against a door and she suffered a cut to her forehead which was approximately 4 centimetres in length and ultimately required seven stitches or sutures. She escaped the prisoner, ultimately climbing over a balcony and falling to the ground where fortunately she suffered only minor injury. She ran up the street in her underwear. There were reports to the police of a naked woman in the street and ultimately police found her in a distressed state with a swollen right eye, in fact her right eye was closed, and a swollen forehead. The victim was very concerned about her own welfare but also concerned about the prisoner's. She believed the prisoner had threatened self-harm. Obviously he committed this offence in a somewhat distressed state. He took the victim's car although he was not particularly prosecuted in relation to that matter and ultimately her vehicle, damaged, was found in Point Piper with evidence of an attempt at self-harm by carbon monoxide poisoning. However, by the time the motor vehicle was found the prisoner was not in the vehicle. As I understand it, either that day or the following day the prisoner surrendered himself to police and was arrested and charged. I will come back to the relevance of his criminal history shortly. 20. I have a pre-sentence report from Community Corrections. It reports on the previous community service that he had served which he completed satisfactorily. He has not otherwise been subject to supervision. From that I take it that the s 9 bonds previously ordered did not involve any Community Corrections or Probation and Parole supervision. He is currently held as an un-sentenced prisoner. He has not incurred any institutional misconduct charges. He is regarded within his unit as a "model inmate". Prior to coming into custody in October he was residing with his parents. Obviously he left the Glebe apartment on his incarceration in March 2017. 21. He is the younger of two children. He speaks in the report of the severe discipline style of his parents. He has had two significant relationships in his life, one over a period of some seven years which I take to be the relationship that ended with the assault in March this year, and an earlier relationship of five years. He has support from his parents and his sister. His mother sat through the trial. His parents, as I would understand it, are with us today. Given the character of his offending he has been subject to assessment whilst at Parklea Correctional Centre by psychologists. I will come to the detail of that report. He is eligible for a specialised sexual offender treatment program which would need a minimum period of two years post sentencing although I am not fashioning the sentence simply to accommodate the likelihood of him undertaking a program. Also it is recommended that he undertake, when subject to supervision by Community Corrections, psychological supervision. 22. The evidence reveals, without dwelling upon it, that since leaving high school the prisoner has been in regular employment. I have already mentioned the fact that he had a relatively senior position with Transport New South Wales at the time of the offending. In fact, one of the facts of the case, which I do not believe is controversial, was at some point in time the prisoner asserted at least to security staff at the bar that he was trying to help the victim in the context of the fact that he, being the senior staff member present, had some sort of duty of care or responsibility for the people that were there. Sexually assaulting the victim, as the jury found, was not obviously in keeping with that duty of care. But the assertion that he made, that representation of his seniority, reflected the fact that he was a person of considerable responsibility within the department. I accept as a fact that up until his most recent incarceration, that is for the reckless wounding offence, he was in regular employment although he may well have been suspended for some period of time arising out of the charging for these offences. 23. He adamantly denies the offences and expressed his intention to appeal, which is entirely his right. I make no further comment about that. He made some disparaging remarks about the victim which I obviously choose to ignore. He declined any suggestion of any intervention because he was concerned that to agree to any intervention may reflect an admission of guilt on his part. He is assessed in all respects by the Community Corrections Service to be of 'medium risk' of re-offending, particularly in the context of sexual offending, as it relates to the offending with which I am concerned and also in respect of his relationships with other people, as reflected by the reckless wounding of his partner. 24. He was cooperative throughout the interview. He was regarded as intelligent but certainly not contrite or insightful. I have taken that report into account. In relation to the confidential psychological report that was prepared for the benefit of the preparation of the Community Corrections report it reflects upon his background and his criminal history. The prisoner denied problems relating to alcohol or drug use. He also denied alcohol or drug use issues in the reporting of the psychologist retained by the defence. It may well be that he was a sporadic drinker but certainly alcohol was a contributing factor, not a mitigating factor I hasten to say, to his offending on this particular occasion. So far as the psychological report was concerned he denied any sexual interest in the victim and he denied any forms of sexual deviancy in his thinking. The psychological report noted that he said that he was "merely trying to help the victim" and denied any sexual misconduct towards here. 25. The report states: "Mr Nahn showed a general tendency to attribute his behaviour to the external situation. He would accept responsibility for letting situations get out of hand or placing himself in compromising positions but would externalise or completely deny responsibility for the substantive aspects of a number of his convictions." 1. He was assessed, according to the STATIC-99R actuarial risk assessment, as being "above average risk" of re-offending, presumably in a sexual sense. Of course these actuarial tools have their limitations in a range of ways. It has a "moderately predictive accuracy" and of course the presence of dynamic or static factors can vary from time to time, thus affecting the 'scores'. These matters are well known to judges who have familiarity with reading such reports as deal with that particular actuarial risk assessment tool. So far as treatment options are concerned it was noted that the prisoner did not identify himself as a sexual offender which was consistent with the evidence that he gave at trial. Notwithstanding the fact of his denial, it is said that if he is required to serve his sentence there is a "Deniers" program for people convicted of sexual offences who "categorically deny their offence" or "state that they were falsely accused." His suitability for that program will need to be reviewed at a later time depending upon the outcome of the proceedings. 2. This brings me to in essence the only evidence additional to that from trial led in his case. That was the psychological report from Mr Ballardie. He deals with prisoner's background, which I dealt with in summary. Some matters to point out in relation to aspects of his family history are that he performed very well at High School, claiming to have scored in the top 5% in the State in his exams but he felt that his parents never fully acknowledged his accomplishments. On leaving school, he became qualified in what is described as "IT" and had a relatively successful career until his fall from grace I think the last year or beginning of this year. 3. He spoke of his relationship with one of his former partners and the assistance he provided to her after they had separated. He spoke of difficulties he had at school with bullying, because of his racial background, and his isolation in that regard. He denied being a user of illicit drugs or prescription medication and regarded his drinking in his 30s as nowhere near as significant as it was when he was much younger. 4. He became socially withdrawn in his early teens because of an acne condition which seems to have resolved. The clinical assessment of him on psychometric testing is that his present functioning revealed "extreme range of depression, anxiety and stress". The psychologist, however, on the administration of the "Depression, Anxiety and Stress Scale (DASS 21)" also concluded that the prisoner's "mood and functioning during the period prior to him offending" was also to be scored on the "extreme range for depression, anxiety and stress". 5. Obviously the present mood and functioning would be reactive to the situation of being in custody, convicted of an offence that he claims that he did not commit. In relation to the assessment of his mental state however at the time of the offending, one must approach that with some circumspection. I do so for these reasons: The prisoner did not give evidence and so the Crown had not had an opportunity to test that aspect of the matter in the report; and in terms of the facts of the case both from the perspective of the prisoner's own evidence and the evidence of the complainant, it would appear that the issue of depression, anxiety and stress did not directly arise for consideration as having a causal relationship with the offending. 6. The prisoner gave a history to the psychologist of cycles of depression for a range of reasons and I do note in fairness that whilst there is no available evidence of treatment for depression or anxiety there is overwhelming evidence of a suicide attempt or an acting out attempt at least in the wake of the reckless wounding offence. But that having been said, I am not assisted with any evidence of any treatment the prisoner had received in relation to that matter or any previous anxiety or depression the prisoner may have exhibited. 7. With regard to the assessment of the prisoner, the psychologist expressed the view that whilst he reported no current suicidal intent or plan his various symptoms met criteria consistent with DSM 5 criteria for a long term major depressive disorder. There are various observations also made about his symptoms, consistent with the DSM 5 categorisation of generalised anxiety disorder, and observations made about his cognition and his self-concept. 8. I must say whilst the psychologist makes observations about the prisoner giving a narrative and clinically presenting as a person who suffers from "low self-esteem" has "low self-evaluations" is "pessimistic and insecure" and makes "negative comparisons between himself and others", the evidence at trial revealed him to be, perhaps under the influence of alcohol, outgoing, social, confident in his communication with other people and assertive when required. 9. I do not refer just to these sexual assault allegations, but in other respects. He seems to have taken it upon himself to feel that he was the person who had to assist the victim in the toilets, which seems somewhat inconsistent with a person who is withdrawn and "pessimistic". The psychologist opines that the factors that impacted upon his functioning behaviour and choices at the time of the offending were "the mental conditions affecting him at the time", such as stress that he was experiencing from problems with his employer and a breakup of his relationship and financial pressures and "an increase in his symptoms of his mental condition in the period just prior to his offending". 10. I am having difficulty understanding, even based upon the material provided by the psychologist, as to the basis upon which it could be concluded that there had been an "increase in his symptoms of his mental condition" prior to the offending, or any causal relationship between any mental condition that he may have suffered and the offending itself. 11. As I said, his own version of events just reflecting upon that for the moment, is that he did not sexually assault the victim. He went to help her. Yes, he admitted that he had drunk some alcohol, but there was nothing within his self‑belief or self-appreciation that compelled him to act in the way that the complainant alleged. If he was telling the truth clearly there is nothing concerning his claim past depressive symptoms and anxiety symptoms that is of any connection with the offending whatsoever. 12. I accept in the context of the facts as I must find them, consistent with the jury's verdict, that it may well be that a past background of depressive symptoms, anxiety disorder symptoms and the like, may contribute to a person's abuse of alcohol or in some cases prohibited drugs, although that does not arise in this situation, that might indirectly contribute to the offending behaviour. But that is as far as one could take the matter in the absence of clear evidence from the prisoner about the matter, and some independent evidence of analysis or diagnosis or treatment confirming the existence of conditions prior to the offending with which I am concerned. 13. With regard to his circumstances of custody, I accept that the current symptoms that were observed by the psychologist are impacted upon by his custodial situation. So far as his symptoms are concerned, the psychologist was of the view that they would improve with ongoing treatment. 14. He noted the prisoner's engagement during assessment. He claimed that the prisoner had a "good level of insight and motivation to make positive changes in his life", however without any acknowledgment of responsibility for wrongdoing which is the subject of comment in the psychological assessment undertaken for the Department of Corrections. 15. The psychologist noted as to matters that might contribute to his risk of reoffending not only the mental health matters identified, but his consistent and responsible level of employment, the absence of significant history of substance abuse, his claimed commitment to ongoing psychological counselling and willingness to use medication for his depression on release - there has been no evidence I hasten to say of prior use of medication - and his positive relationship with his family and close friends. 16. I accept that a number of those matters are relevant to assessing a low risk of re-offending, including his prior responsible level of employment and his employment prospects, albeit that his criminal history may operate against him, the absence of any significant history of substance abuse, and his positive relationship with his family particularly. The psychologist expresses opinions about an appropriate mental health program. 17. So far as the effect upon him of a custodial sentence is concerned, the psychologist expressed a view that a custodial sentence will cause him some psychological distress and that his "overall mental condition is likely to deteriorate", that he would suffer greater hardship in custody than the ordinary hardship experienced by inmates "due to his pre-existing mental conditions". The psychologist also opines that he does not believe the prisoner would necessarily receive the specialist treatment that he would receive in the community. 18. It must be fairly said that for a person of the prisoner's background, although he has been in gaol before earlier this year, a custodial environment would be a foreign environment and would have an effect upon him. Sadly, or otherwise, that is the character of imprisonment. 19. The extent to which his claimed mental conditions may be exacerbated by him being in custody is difficult to estimate. But accepting that he is showing symptoms at the current time consistent with some depressive illness and general anxiety disorder, one can understand he being concerned probably more saliently than other prisoners may be, or many other prisoners may be, by the circumstances of his custody. 20. The prisoner's counsel provided me with written submissions, and I had the benefit of oral submissions from the prisoner's counsel and the learned Crown Prosecutor. I asked counsel for the prisoner to assist me as to the way in which Mr Ballardie's report provided some assistance in this particular matter. 21. Essentially what was suggested was that the character of his relationship with his partner at the time may have had an effect upon his mental condition. It also may have affected his drinking manner or habits at the relevant time. So far as the alcohol was concerned, it was submitted that that had a disinhibiting effect upon him. 22. Submissions were made about the relevance of his criminal history. It was pointed out, as I note, that the reckless wounding offence occurred after the offence with which I am concerned and thus, in considering his criminal history, I am required at least so far as that aspect of the matter is concerned to ignore it, although it is not irrelevant to an assessment of his prospects of rehabilitation or the likelihood of him reoffending. 23. I am advised in the submissions that he was terminated in his position with the Government and thus he has had a significant fall from grace because of his offending. Both on this occasion that I am concerned with and when he wounded his partner in March this year. He was earning a respectable salary at the relevant time. It was submitted that I should make a finding of special circumstances for a range of reasons, including the assistance he will require on return to the community. 24. The Crown drew my attention to the report of the Community Corrections psychologist and reference was made in both the written submissions for counsel for the prisoner and in the oral submissions to matters arising out of some of the authorities to which I was referred. I will come back to the authorities shortly when I finally wrap up and analyse the evidence before me. 25. So far as prospects of his rehabilitation were concerned the Crown said that it is difficult to assess this where the offender takes no responsibility for the conduct that is alleged against him. There was nothing before the Court, it was submitted, that could allow one to assess his prospects of rehabilitation. This would be much easier on a plea of guilty. 26. It is fairly said that in the context of the psychological material available in the report that the weight that one would give to a psychological report in particular circumstances may be greater when one is considering an admission of guilt and thus one has an admission of essential facts to which can be related to claimed psychological conditions. As I have said earlier, one of the problems with the psychological report is that it makes assumptions about the character of the offender's mental state which were not the subject of evidence by the prisoner when he denied his guilt. 27. The Crown in fact in its submissions criticised, what I described in my handwritten notes, 'ex post facto' reconstruction of the mental state of the prisoner in the absence of direct evidence which submission I essentially accept. The Crown pointed out that much of the report is based upon "self‑reporting" and that I could not conclude that the prisoner had a major mental illness at the time of the offending. I have taken all the submissions into account, not just those that I have summarised but other matters that were articulated. 28. If I could approach the matter in analysis by reference to the written submissions of counsel for the prisoner, obviously I take into account the maximum penalty that is required to be considered in respect of each offence. With regard to the matters that are identified in counsel for the offender's written submissions I am required to have regard for s 3A of the Act, I am required to ensure that the offender is adequately punished for the offence. The character of offending is such that weight must be given to general deterrence as well as some weight to specific deterrence and concern must be had to protect the community from the offender, although I do not believe the offender is necessarily a risk to the community at large. But he may be a risk to others in certain circumstances when under stress or affected by alcohol. I am required to make him accountable for his actions, to denounce his conduct towards the victim and recognise the harm done to the victim, both by consideration of the objective facts and to matters that are realistically identified in the victim impact statement that can be readily accepted as arising given the objective facts of the matter. 29. It was conceded in submission by learned counsel for the offender that the threshold, if it may be called that, set out by s 5 of the Act had been passed and it was appropriate to fix a term of imprisonment. That term of imprisonment to reflect, as counsel for the offender said, the severity of the crime committed, taking into account both the needs of the community, the victim of crime and the purposes of sentencing. I have not specifically mentioned up to this point the fact that one of the purposes of sentencing is also to promote the rehabilitation of the offender. Various submissions are made about the objective circumstances which I have already dealt with. Subjective features of the offender are included in the submission of counsel for the offender in writing, the fact that the prisoner is not a repeat sexual offender and this is the first offence of a sexual character for which the prisoner has been convicted, although I note the prior finding of guilt of an assault upon another person, albeit not a sexual assault, and the subsequent offence of reckless wounding. 30. I am urged to have regard to the report of Mr Ballardie, which I do. I believe it probably is more significant in this sentencing exercise by reference to the current presentation of the prisoner rather than the claims of the condition of the prisoner at the time of the offending. 31. It was submitted by learned counsel for the prisoner that the offence was not planned, which I have found and I have already made findings about the opportunism of the offending. 32. There was not a great deal of time spent on matters relevant to s 21A of the Act in the submissions of counsel for the prisoner and counsel for the Crown. There was a concession made by counsel for the prisoner that the prisoner "abused the position of trust or authority in relation to the victim". Notwithstanding that concession I cannot conclude beyond reasonable doubt that this offence involves an abuse of trust or authority in relation to the victim. Firstly, the prisoner was not her direct supervisor, nor was he directly responsible for her on the evening. He took some responsibility for her in the sense that he went to the toilet to assist her because she was being ill on the information available to him. But that in my view, notwithstanding the fact that he had a more senior position at Transport New South Wales, did not involve the creation of a position of "trust or authority" as those terms are understood. However, it is conceded that the victim was vulnerable and I accept that that is an aggravating factor given the condition of the victim as was acknowledged by the prisoner in this evidence and identified by the victim in her evidence before me. 33. Counsel for the prisoner has identified as a mitigating factor that the prisoner did not have any record or significant record of previous convictions. It is true to say he had no prior convictions for sexual assault, but he had a prior finding of guilt for violence, that is common assault, for which he received a modest penalty. So I could not conclude that he did not have any record or any significant record of previous convictions. 34. I could not conclude that the prisoner was, by reason of his criminal history, a person of good character, but I accept that he was a person of good character insofar as he had responsible positions and generally conducted himself in a law-abiding fashion and responsibly within his employment framework. 35. It was submitted that I should conclude the prisoner is unlikely to reoffend. The facts of this matter, as found by the jury and his prior criminal history as well as the subsequent offending, does not support that finding on balance in favour of the prisoner. 36. As to his prospects of rehabilitation, notwithstanding the submission of the Crown and notwithstanding the fact that I cannot conclude on balance that he is unlikely to reoffend, I believe there are some prospects of rehabilitation for the reasons identified in part by the psychologist. A past history of employment stability and absence of drug and alcohol addiction or dependence, a supporting family, are all matters that will assist him in that regard. 37. I was invited to consider a couple of cases which were provided to me, Kearsley [2017] NSWCCA 28 and Hanney [2014] NSWDC 13, as providing some assistance in particular ways as I would I understand it in a comparative sentencing exercise or a comparative sentencing consideration. 38. Kearsley in no way is of any assistance on a comparative sentencing basis. Whilst Dr Kearsley committed sexual offences and they were of some seriousness involving the sexual assault of a work colleague, the facts of the matter are that Dr Kearsley had a far more formidable subjective case than this prisoner. He had an absence of criminal convictions, he was a man of mature age with a high standing within his professional community, and he had a far more significant and far better demonstrated history of mental "disability" in the general sense, albeit that it was not causally connected to the offending, that was required to be taken into account. The circumstances of his offending are far removed from the offending here, albeit that his offending was deemed to be "opportunistic". The "mitigating factors" were far more profound than in this case. Hanney does not provide a great deal of assistance either. 39. However, there is in Kearsley some aspects of the judgment that are of some assistance to me. Both Macfarlane and Harrison JJ in their usual erudite manner discussed the relevance of a mental condition or a mental disability in the sentencing process, by reference particularly to McClellan CJ at CL, as his Honour then was, in DPP (Cth) v De La Rosa [2010] NSWCCA 194, particular at [177]-[178]. The extract of that judgment in fact appears in Harrison J's judgment at [105] and is summarised by Macfarlan J in his judgment by reference to the facts in Kearsley at [4]-[9]. 40. In that case there was no causal connection between the condition and the offending on the evidence available and thus there was no relevance to the assessment of the moral culpability of the offender and that is the case here. It was thought, however, that the mental condition of Dr Kearsley rendered him less an appropriate vehicle for general deterrence than might otherwise be the case. But this was said not to be a "significant" matter in the sentencing exercise, albeit that ultimately their Honours reduced the sentence imposed at first instance. 41. It was pointed out by reference to the decision of Engert, [1995] 84 A Crim R 67, that Gleeson CJ reflected upon a sentence of imprisonment being reduced by reason of a mental condition even if it was not causally connected to the offence. In his view by "considerations of rehabilitation, or the need for treatment outside the prison system". In that case Allen J broadly said that a particular condition might attract what was described "human sympathy" to reflect upon the fact that one would not expect a particular prisoner to get the same sentence as someone who had no such disability. 42. I do not know whether one could conclude that issues of "human sympathy" necessarily arise here, but it seems to me that the observations of Gleeson CJ, accepting the current presentation of the prisoner as the psychologist assessed it, is relevant to considerations of rehabilitation or the need for treatment both inside and outside the prison system. 43. I have also concluded by reference to the circumstances discussed in Kearsley and reflected upon in the summary of principles in De La Rosa that the presentation of the prisoner at the present time may mean that a custodial sentence may weight more heavily upon him. It will weigh more heavily upon him I believe simply because of his lack of experience in custody, notwithstanding the previous sentence imposed. His background is of working in an environment where daily violence and the like, features of prison custody, is not a common experience. He certainly will need assistance to adjust to community living. 44. I should point out of course that whilst there must be some element of specific deterrence or personal deterrence in orders that I make having regard to the character of the offending, it seems to me on the facts available in this case that the offending proven appears to be offending that is peculiar or particular, if that is the correct expression, to the circumstances that presented themselves to the offender. I could not conclude on the evidence available to me, notwithstanding the Corrective Services psychological report, that the prisoner could be categorised as a "sexual predator" or as a person who was generally at risk of committing offences against women on his release to custody. But certainly his behaviour towards his former partner and towards the victim reflect a need for him to exercise greater self-control in particular situations. 45. I have concluded that there are 'special circumstances' pursuant to s 44 of the Act. The special circumstances I have identified in this matter are, firstly, the partial accumulation of one sentence upon another. I also believe that there should be an adjustment of the relationship of the non-parole period to the balance of sentence to provide the prisoner with an extended period of community supervision to assist him to adjust to community living. In my view he will need professional assistance on his release, both within custody and outside of custody, either for the purposes of treating him in relation to matters to prevent the risk of further sexual offending or to treat those symptoms of depressive and anxiety disorders reflected upon in the clinical assessment of Mr Ballardie to which I made reference notwithstanding I have difficulty accepting the ex post facto reconstruction of the psychologist. 46. Thus, hopefully having addressed all the matters that were required to be addressed in this particular matter and sentencing the prisoner on the basis that a standard non-parole period is not required to be taken into account, I make the following orders. If you could stand up, Mr Nhan. 47. In relation to count 3 you are convicted, you are sentenced to imprisonment for one year to commence on 28 October 2017, that is to expire on 27 October 2018. I decline to fix a non-parole period for that sentence. 48. In relation to count 2, the offence of attempted sexual intercourse without consent, you are convicted. You are sentenced to a term of imprisonment of two years six months by way of non-parole period to commence on 28 February 2018, expiring on 27 August 2020. I fix a balance of sentence of two years six months imprisonment, expiring on 27 February 2023. I cannot direct that you be released to parole. 49. The total sentence I imposed is five years and four months of imprisonment with a non-parole period of two years ten months. 50. You can take a seat. 51. In sentencing the prisoner to that term of imprisonment I have had regard to the issue of totality of sentencing. I have regard, for example, to the judgment of the High Court in Pearce v The Queen (1998) 194 CLR 610, particularly the majority judgment at [45]. I am required to fix an appropriate sentence for each offence and then determine the relationship of those sentences by regard to the concept of totality by appropriate accumulation or concurrency as the case may be. In my view the offending of the prisoner in the indecent assault, whilst intimately in one sense bound with the attempted sexual intercourse without consent, being a discrete offence, increases the totality of the offending. I thus partially accumulated the greater sentence upon the lesser sentence by four months to reflect that fact. 52. Yes, anything from you, Madam Crown? 53. BARNES: No, your Honour. 54. HIS HONOUR: Anything from you? 55. MALDIGRI: No, your Honour. 56. HIS HONOUR: Mr Nhan, the sentence I have imposed upon you is five years and four months imprisonment, that dates from 28 October 2017. You will be eligible for release to parole on 27 August 2020. Whether you are released on that date will be a matter for the parole authority, I have got no power to direct your release. 57. LUNCHEON ADJOURNMENT 58. HIS HONOUR: Before the luncheon adjournment I was sentencing Mr Nhan who was found guilty of particular offences after a trial. Counsel for the Crown, counsel for the accused and the prisoner are not here now, I am sitting in Court with a solicitor from the Commonwealth Director of Public Prosecutions and Mr Fraser of counsel who appears for the man sitting in the dock, Mr Wang. I have not had the opportunity of calling the parties back. 59. After I had sentenced Mr Nhan I realised that because of a discussion we had immediately before I commenced my sentencing remarks I had failed to refer to an aspect of the matter about which I had made notes and was proposing to make some comment. 60. I had been led to believe at one point in preparing my sentencing remarks that the offence of attempted sexual intercourse without consent did have a standard non-parole period, as reflected in my judgment delivered before lunch on the basis of an authority called DAC from 2006. I was persuaded that in fact an offence of attempted sexual intercourse without consent, knowing the complainant was not consenting, does not have a standard non-parole period. It was in the context of being persuaded that I did not have to have regard to ss 54A, 54B, 54C, 54D Crimes (Sentencing Procedure) Act 1999 that I neglected to deal with an aspect of the matter that still required attention, even if a standard non-parole period did not apply. 61. The matter that required attention of course was assessing the objective gravity of the offending. In my remarks on sentence I extensively identified the objective features of the matter and the character of the offending but I did not actually, if I can use the expression "label" that objective gravity. 62. I place on the record in relation to Mr Nhan that the conclusion reached was that whilst the offending of course was not at the lowest level of objective seriousness it was an offence that by reference to terminology that applies to offences that carry a standard non-parole period, an offence that fell just below the middle range of objective seriousness in my view. The reason for that was the fact that there was no planning, the offence was opportunistic, it was committed over a limited period of time, there were no threats of violence before or afterwards, but the victim was vulnerable. There were other features of the case that I have earlier reflected upon that I have taken into account; taking advantage of the complainant and of course the aggravating feature of sexually assaulting the complainant when she was physically vulnerable at the time. 63. In any event these additional remarks I would wish be incorporated into the judgment that will in due course be published in respect of Mr Nhan's sentencing. I request a copy of both these remarks and my earlier remarks on sentence. I will forward to the Crown Prosecutor and to counsel for the accused these additional remarks to ensure that they are notified of the matter that I should have adverted to before the lunch break.