Hodson [2024] NSWCCA 238

• Crown appeal against sentence for multiple child sexual offences allowed – sentence found to be manifestly inadequate
• Evidence at first instance included diagnoses of PTSD from period on remand – respondent constantly stood over in relation to buy-ups and sexual favours – bullied by prison guards – assaulted and sexually assaulted on multiple occasions – witnessed bashings and rapes within prison setting, including one bashing that led to death of victim: at [44], [71]
• Although concluding, in circumstances of case, maintenance of public confidence in the administration of justice required re-sentencing, two judges expressed concern about prison conditions and inability of state to provide adequate protection for prisoners.

Per Fagan J

[82] I have had the advantage of reading in draft the reasons of Dhanji J. I share his Honour’s grave concern about the apparent exposure of the respondent to violence and sexual abuse at the hands of other inmates while in custody on remand. I am unable to say more, particularly as to whether fault or neglect may be attributed, because the evidence on the appeal, naturally, did not include comprehensive evidence of the nature and surrounding circumstances of the relevant incidents.

Per Dhanji J

[87] It would be entirely understandable if the victims of the respondent’s crimes, and indeed others in the community, were to feel no sympathy for the respondent’s complaints of being sexually assaulted given the crimes he has committed. It is not, however, the question of sympathy for the respondent. Offenders are imprisoned because we as a society insist on adherence to our laws. That same insistence does not stop at the prison gates.

[88] Failures such as those which have occurred here place the courts in a difficult position. In cases such as this, the State complains the term of imprisonment was inadequate. Yet the State, through a different arm, has failed to provide appropriate conditions for that imprisonment. Similar concerns arise daily for judicial officers considering bail applications, particularly where significant delay is expected prior to resolution of the charges.

…

[90] I have given anxious consideration to whether the appellant has satisfied its onus to establish this Court should exercise its discretion so as to intervene and correct sentence. The failure of the State and the consequent additional impact of imprisonment on the respondent is a powerful factor against intervention.