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District Court 18 July 2025

R v Hageman

[2025] NSWDC 352

Sexual offencesDrugs
CRIME SENTENCE SEXUAL TOUCHING WITHOUT CONSENT

Citation: R v Hageman [2025] NSWDC 352
Court: District Court of NSW
Date: 18 July 2025
Judge(s): Bourke SC DCJ

Background

The offender was a disability support worker employed at a supported independent living house in Maryland, NSW. The victim, referred to as GG, was a colleague who worked at the same house. On 20 March 2022, the offender arranged for GG to arrive at work an hour earlier than scheduled, without management authorisation, and subsequently deleted the relevant text messages from the work phone.

During the handover period, the offender invited GG to participate in what he described as a sensory experiment involving a blindfold and food items. He gave her a piece of cheese that had been doctored with methylamphetamine or amphetamine. GG noticed the food tasted unusual but did not immediately confront the offender. Within an hour she began experiencing symptoms consistent with having ingested a toxic level of the drug.

After the drug took effect, the offender followed GG around the house. When she sat in the driver's seat of the work vehicle to check the odometer, he reached into the car and rubbed her genital area over her clothing on two separate occasions. She pushed his hand away each time. He told her "no one needs to know" and expressed his desire to have sexual intercourse with her. She repeatedly refused, and the offending did not progress further.

  • What facts, consistent with the jury's verdicts, should be found for sentencing purposes, including any aggravating circumstances?
  • What weight should be given to objective seriousness, subjective factors, and considerations of specific and general deterrence?
  • Whether special circumstances justified adjusting the standard ratio between the head sentence and the non-parole period.
  • What aggregate sentence was appropriate across all three counts.

Decision

The District Court found the facts largely as summarised in the Crown's post-trial factual document, which was broadly accepted by the offender. The offender maintained his innocence throughout, which the court took into account as a relevant factor in the sentencing exercise.

The court sentenced the offender on three counts: the serious offence of causing a person to take an intoxicating substance with intent to commit a sexual offence (maximum 25 years, under s 38(b) of the Crimes Act 1900), and two counts of sexual touching without consent (maximum 5 years each, under s 61KC(a)). The count 1 offence was treated as the principal offence, reflecting its higher maximum penalty and the deliberate, premeditated nature of the conduct.

Bourke SC DCJ identified aggravating features including the breach of trust inherent in the workplace relationship, the vulnerability of the victim once drugged, the predatory and calculated nature of the offending, and the deletion of the text messages. The court noted that statistical comparisons from the Judicial Information Research System were of limited assistance given only four comparable cases existed, and that the three cases cited by the Crown were not directly comparable but provided some broad guidance.

The court found special circumstances warranting a departure from the standard one-third relationship between head sentence and non-parole period. The basis for this finding was the offender's first period of custody, his increased vulnerability as identified by a psychologist, his mental health issues, and the need for substantial community supervision upon release.

Orders Made

  • Count 1 (causing a person to take an intoxicating substance with intent): indicative sentence of 5 years' imprisonment.
  • Count 2 (sexual touching without consent): indicative sentence of 2 years' imprisonment.
  • Count 3 (sexual touching without consent): indicative sentence of 2 years and 1 month's imprisonment.
  • Aggregate head sentence: 5 years and 10 months' imprisonment.
  • Non-parole period: 3 years and 6 months.
  • Sentence to date from 16 April 2025; head sentence to expire 15 February 2031; non-parole period to expire 15 October 2028.
  • A copy of the psychological report of Jason Borkowski to be sent to Justice Health.

Key Takeaways

  • The District Court treated the offence of causing a person to take an intoxicating substance with intent to commit a sexual offence as the principal and most serious count, reflecting its 25-year maximum and the deliberate, premeditated conduct involved.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 was available where the offender was a first-time prisoner with identified mental health vulnerabilities and required extended supervision upon release.
  • Aggravating features in this sentencing included a breach of trust within an employment relationship, the calculated deletion of incriminating evidence, the vulnerability of the victim after being drugged, and the persistent nature of the offending conduct within the same incident.
  • Under the Crimes Act 1900, s 38(b), causing a person to take an intoxicating substance with intent to facilitate a sexual offence carries a maximum of 25 years, substantially higher than the five-year maximum applicable to the sexual touching offences under s 61KC(a).
  • The court confirmed that matters in aggravation must be proved to the criminal standard (beyond reasonable doubt), while mitigating matters need only be established on the balance of probabilities.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 38(b), 61KC(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Houshyar v R [2022] NSWCCA 245
- Irmak v R; Dagdanasar v R [2021] NSWCCA 178
- R v Song [2022] NSWDC 100
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Sharma v R [2022] NSWCCA 190