R v A

[2021] NSWDC 232

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v A [2021] NSWDC 232

Hearing dates:

07, 08, 09, 10, 11 and 15 December 2020 5 April 2021 and 7 May 2021
Crown written submissions 11 March 2021 and 5 May 2021
Defence written submissions 1 April and 27 April 2021

Date of orders:

21 May 2021

Decision date:

21 May 2021

Jurisdiction:

Criminal

Before:

Hatzistergos DCJ

Decision:

See [84] onwards

Catchwords:

CRIMINAL LAW –– Child sex offence – Maintaining an unlawful sexual relationship with a child

SENTENCE –– Aggravating factors – Offence committed in position of trust and vulnerability of victims considered – Mitigating factors – No prior convictions – Prior good character – Offender’s moral culpability reduced in line with the principles in R v Bugmy – Offender’s time in custody is more onerous due to his mental and physical health – Offender at low risk of reoffending and has good prospect of rehabilitation notwithstanding his denial of offending – Finding of special circumstances by reasons of the Offender’s health and favourable prospects of rehabilitation

SENTENCE –– Where the interpretation of section 66EA of the Crimes Act 1900 (NSW) is distinguishable from that found for in section 50 of the Criminal Law Consolidation Act 1935 (SA) in Chiro v R [2017] HCA 37

Legislation Cited:

Crimes Act 1900 (NSW), ss 66EA, 66C, 61M, 66D

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 30, 21A, 44

Criminal Law Consolidation Act 1935 (SA), s 50

Cases Cited:

ARS v R [2011] NSWCCA 266

R v D [1997] SASC 6350

R v Fitzgerald (2004) 59 NSWLR 493.

Chiro v R [2017] HCA 37.

KMC v Director of Public Prosecutions(SA) [2020] HCA 6.

Burr v R [2020] NSWCCA 282

Corby v R [2010] NSWCCA 146

R v KLN (2005) 154 A Crim R 268

R v Kennedy [2000] NSWCCA 527

Bugmy v R [2013] HCA 37; 249 CLR 571

R v Fernando (1992) 76 A Crim R 58

R v Perkins [2018] NSWCCA 62

Judge v R [2018] NSWCCA 203

R v Millwood [2012] NSWCCA 2

Alseedi v R [2009] NSWCCA 185

Ali v R [2010] NSWCCA 35

Qutecher v the Queen [2010] NSWCCA 257

Park v R [2010] NSWCCA 151

MLP v R [2014] NSWCCA 183

Category:

Sentence

Parties:

Regina (the Crown)
A (the Offender)

Representation:

Counsel:
Ms J. Krippner (the Crown)
Ms P. David (the Offender)

Solicitors:
Director of Public Prosecutions (the Crown)
O’Brien Criminal & Civil Solicitors Pty Ltd (the Offender)

File Number(s):

2019/00212671

Publication restriction:

Section 578A(2) of the Crimes Act 1900 (NSW) and
Section 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) apply. Pseudonym “A” is used for the Offender and “S” is used for the Offender’s niece.

Judgment

1. Following a six day trial concluding on 14 December 2020, the Offender was found guilty by a jury of 11 of one count that he did between 1 June 2015 and 30 November 2018, at Taree in the State of New South Wales, maintain an unlawful sexual relationship with a child, then a child under the age of 16, namely 11-16 years of age contrary to section 66EA(1) of Crimes Act 1900 (NSW) (the 1900 Act). This offence carries a maximum penalty of life imprisonment with no standard non-parole period.

2. The matter originally was listed for sentence submissions on 19 February 2021. Following agreement between the parties, sentence submissions were adjourned by Chamber order made on 16 February 2021 until 9 April 2021. Sentence submissions were heard on that occasion however both parties elected to lodge supplementary written submissions. ^[1] Although the matter was listed for sentence on 7 May 2021 the timing of the additional submissions and an application to admit further documentary evidence ^[2] led to the matter being adjourned to this day for sentence.

   1. MFI B (3 May 2021 ) and 2 (5 May 2021).

   2. Exhibit 3 (sentence).

Background Facts on Sentence

3. The Victim was born in 2003 in Taree and had two older brothers, one younger sister and one younger brother. When the Victim was five, the family moved to Port Macquarie. In June 2015, the children were placed in the care of their maternal aunt. The Victim was aged 11, and in year 6, when she moved back to Taree. The maternal aunt lived in Taree where also she cared for her own mother who was also the Offender’s sister. The Offender was born in 1960 and was the uncle of the Victim’s maternal aunt, the great uncle of the Victim. The Offender came regularly to the home and there was evidence that he coached football teams and trained girls in martial arts in Taree.

4. The Offender began training the Victim and her sister in martial arts after they moved to Taree in June 2015. That training occurred at a bush area within the Khappinghat National Park on Sundays when he would collect the Victim from her home at about 12.30pm and return her mid-afternoon in his car. The evidence was that he trained them separately and stopped taking the younger sister when she was about 7.

First Time – Penile – vaginal sexual intercourse, aged 11

Unlawful sexual act (A) – aggravated sexual intercourse person 10 >< 14 years (under authority), s 66C(2) (20 years imprisonment)

5. The Victim’s evidence was that she moved back to Taree in June 2015 when she was in year 6 and at that stage she was aged 11. She described the first incident occurring before her birthday in October that year on the third occasion she was taken by the Offender to Khappinghat National Park.

6. The Victim described that the Offender told her that they were going for a walk through the bush and as they were walking the Offender came up behind her and grabbed her mouth and told her not to say anything. She stated that the Offender said that if she did then he would kill her and kidnap her. She stated that he then pinned her down. ^[3] In her second interview, the Victim recorded that the Offender said that if she said anything he would kill and kidnap her and use her as a sex doll. She stated that she was taken down to the tepee and she was pinned down onto the ground and she was placed on her back with knees on her arms. ^[4] The Victim asked the Offender why he was doing it and he did not answer her, she stated that she asked again and he still did not answer. She then stated “it’s not right that you’re doing this”. He responded “it is a right of me to do it, because I am older than you and whatever usually they, old guys say when they’re doing stuff like that”. ^[5] The Victim said to the Offender “well the way I was brought up this is not what you’re supposed to do to your family”. ^[6] The Offender responded that he did not care and she was not to say anything or he would kidnap and kill her. ^[7] The Offender then undressed the Victim. The Victim wrote on a piece of paper during the second JIRT interview “He inserted his male genitles (sic) into my vagina”. ^[8] The Victim stated that it went on for a long time and thereafter the Offender checked his phone and said to her that they had to leave. The Victim ran to the car and waited for him. ^[9]

   3. MFI 3 Q78-83.

   4. MFI 7 Q68.

   5. MFI 7 Q70.

   6. MFI 7 Q71.

   7. MFI 7 Q69-72.

   8. Exhibit 4 and MFI 7 Q79-Q84.

   9. MFI 7 Q85-88.

7. In her first interview, the Victim stated that she didn’t remember when the tepee was erected but that they had made it after the first few times that “it’s happened to me”. ^[10] In the second interview, she stated that she was taken down to where the tepee was. ^[11] The Victim’s evidence in cross examination confirmed these responses related to the first incident. ^[12]

   10. MFI 3 Q121.

   11. MFI 7 Q54.

   12. T 101.37-102.35.

8. It is not in issue that the Victim was under the authority of the Offender at the time.

Second Time, penile-vaginal intercourse; touching the victim’s chest (breasts) and vagina with his hands, aged 11

Unlawful sexual act (B) – aggravated sexual intercourse person 10>< 14 years (under authority), s 66C(2) (20 years imprisonment)

Unlawful sexual act (C) – aggravated sexual indecent assault (under 16 years): s 61M(2) (10 years imprisonment)

9. The Victim’s evidence was that “like the week after” the first incident, the Offender drove the Victim back to the site at the Khappinghat National Park. She stated that the Offender asked her if she had told anyone and she stated “no”. ^[13] The Victim then described that technically the same thing happened as the first time. She described this as what she had already written down in “Exhibit 4”. At the time, the Offender also used his hands to touch the victim’s breasts and vagina. She described this as both over and under the clothes. She was asked to describe how she was being touched and she said that she didn’t know and that she didn’t remember what he was doing. ^[14] It was not in issue that at the time the Victim was 11 years of age and under the authority of the Offender.

   13. MFI 7 Q91.

   14. MFI 7 Q104-106.

Third and Fourth Time, penile-vaginal sexual intercourse, sucking the victim’s breasts, aged 11-13

Unlawful sexual act (D) and (F) – aggravated sexual intercourse person 10><14 years (under authority), s66C(2) (20 years imprisonment)

Unlawful sexual act (E) and (G) – aggravated indecent assault (under 16 years): s61M(2) (10 years imprisonment)

10. The evidence of the Victim is that she would attend with the Offender every Sunday but there would be times where she missed out because she would go for drives or go to town for things with her aunty. ^[15] She stated in her second interview pretty much the same thing happened every time and that either every week or every fortnight that they might be doing something. ^[16] The Victim stated that on the third or fourth occasion, the Offender was getting more comfortable and he sucked on her breasts. She described that he did it once but then stated that he had actually done it twice. ^[17] It is not in issue that the Victim was over the age of 10 and under the age of 16 at the time although the precise dates of the third and fourth occasion are not particularised. Nor was it in issue that the Victim was under the authority of the Offender at the time.

    15. MFI 3 Q194-197.

    16. MFI 7 Q136-143.

    17. MFI 7 Q202-207.

The Second-Last Time, penile vaginal sexual intercourse, aged 15

Unlawful sexual act (I)– aggravated sexual intercourse person of or above 14 years under 16 years (under authority): s66C(4) (12 years imprisonment)

11. The Crown sought to rely on an additional foundational act being an incident which was described as “the second last involving penile vaginal intercourse aged 15”.

The Last Time, November 2018 assault with intent to have penile vaginal sexual intercourse, aged 15

Unlawful sexual act (H) – assault with intent to have aggravated sexual intercourse person 14-16 (under authority): s66D/s66C(4) (12 years imprisonment)

12. The Victim’s evidence was that in late November 2018, the Offender drove the Victim to the Khappinghat National Park in a red Subaru Impreza.

13. The Offender and the Victim walked from the car to the site of the tepee. The Offender grabbed the victim and pinned her on the ground. The Victim was laying on her back on the ground. The Offender was positioned on top of the Victim on his knees, using his legs to restrain the Victim’s legs and his elbows to restrain her arms. The Offender attempted to remove the Victim’s shirt, lifting it from the bottom. ^[18] The Victim grabbed the Offender and pushed him off her using a throwing motion. The Victim ran to the car and waited for the Offender in the front passenger seat. ^[19] The Offender drove the Victim home, driving the long way. The Victim and the Offender argued for the entire journey and during the journey the Victim said to the Offender “I’m sick and tired of you trying to rape me all the time, and telling me not to tell anyone”. The Victim further stated “I’m really, really scared, because you’ve done this my whole life. I won’t put up with it anymore”. The Offender was described as angry and the Victim thought that the Offender was going to hit her. ^[20] When he dropped her home, she told the Offender “never to come here again”. Thereafter the evidence was that the Offender returned only once, a week later, to pick up some of his things.

    18. MFI 3 Q211-220.

    19. MFI 3 Q161-166.

    20. MFI 3 Q167-168.

14. The Victim’s aunt gave evidence of an occasion in November 2018 when the Victim came home from a training session with the Offender, visibly upset. When asked, the Victim told her aunt they’d had an argument, and the Offender told her “to get out of the car you little mongrel”, but as she was trying to get out of the car he sped off and when he dropped her home the Victim told him “Don’t ever come back her ever again”. ^[21] Another niece of the Offender “S” gave evidence about being present on a day around November or early December 2018 when the Victim returned home from training with the Offender and was very upset. The Offender dropped the Victim home without coming inside, which was unusual. The “Victim raced to her bedroom and was bawling her eyes out”. ^[22]

    21. T 158.45-159.27, 163.18-164.27.

    22. T 189.48-190.21.

15. The Victim’s aunt gave evidence that after that occasion, the Offender had returned to her home once. ^[23] The Victim’s sister also confirmed the Offender ceased visiting after late 2018. ^[24]

    23. T 164.27.

    24. MFI 10 Q72.

16. The evidence of the Victim was that the Offender raped her when she was 11 turning 12 and from the first time onwards, he raped her almost every week until November 2018 when he took her home from martial arts training. In the second interview, she said that this occurred every week or fortnight and increased to twice a week. ^[25] She described that the Offender would collect her from home and would take her to the shops to buy some food and then proceed to the bush area within the Khappinghat National Park and the rape mostly occurred at that site. She stated that on one occasion not long after the first incident the Offender took the five siblings to the site and taught them to build a tepee using tree branches. The Victim identified the tepee in Exhibit 6. She stated that thereafter the Offender returned with the Victim alone to the site and the acts occurred on the ground in the area behind it.

    25. MFI 7 Q143-144.

17. Approximately six months after the final incident, the Victim wrote a letter to her aunt which became Exhibit 8. S also gave evidence that in May 2019 the Victim had shown her the letter and thereafter had spoken to the Victim and the Victim informed her “it’s been happening since I was 12”. ^[26]

    26. T 188.3-17.

18. The Victim told S that the Offender had said that it was normal for older men to teach younger girls and she knew it was wrong and she was scared and tried to say no and asked the Offender why he was doing this and the Offender stated “because I can”. ^[27]

    27. T 188.32-.34.

Victim Impact Statement

19. The Victim provided a statement where she described that she was emotional all the time. She stated that she puts on a fake smile around people because she does not want them to know that she is hurt. She reveals that she is distant and gets frustrated with herself. She has self-doubt and does not stop thinking. Since the incident, it’s been affecting every aspect of her everyday life. She states that it is hard for her to focus on her activities as she describes it as horrible. She describes being depressed and anxious every day and remained angry at herself and towards the Offender. She finds it difficult to communicate with her Aunt and does not want to hurt her by saying more of what has happened to her. She feels like she has pushed her siblings away because she has been trying to recover. She described tests done which were scary as she felt there was something wrong with her. She found the whole experience of going to court brought things back up again like “flashes” and she didn’t want that again.

20. It is clear that the offending has had a significant impact upon the Victim of a kind that can ordinarily be anticipated for an offence of this nature. Nevertheless, it is important that the Court be reminded of the impact. The Court takes the Victim impact statement into account in the way the law provides under section 30 of the Crimes (Sentencing Procedure Act) 1999 (NSW) (the 1999 Act).

Approach to Sentence

21. In submissions both parties drew attention to the High Court’s decision in Chiro v The Queen ^[28] where the High Court held in a case dealing with a corresponding provision in South Australia that the Offender is to be sentenced on the basis of committing the threshold number of offences said to constitute the offence; not all of the particularised acts. ^[29]

    28. [2017] HCA 37 and (2017) 260 CLR 425.

    29. Chiro v the Queen [2017] HCA 37; (2017) 260 CLR 425 at [52] (Keifel CJ, Keane and Nettle JJ) and Bell J at [67], [71]-72]. See Crown submissions at p3 and T 23.1-.11 (sentence); Defence submissions, 1 April 2021 at [5]-[6] and T 10.5-.19 (sentence).

22. I acknowledge that there is no jurisprudence on the issue of whether the Court can find more than two foundational acts proved after a jury has returned a guilty verdict of maintaining an unlawful sexual relationship under the amended section 66EA of the 1900 Act as enacted by the Criminal Legislation (Child Sexual Abuse) Act 2018 commencing 1 December 2018. The matter was briefly discussed in Burr v R ^[30] where Chiro was distinguished in respect of a s 66EA offence as enacted in 1998. Johnson J held that the offence following the 2018 amendments may be different based as it is upon an “unlawful sexual relationship” as defined in s 66EA(2) but it was unnecessary to decide. ^[31]

    30. [2020] NSWCCA 282.

    31. at [104] (Leeming JA and Rothman J agreeing).

23. Nevertheless, I am satisfied that the principles in ARS v R, ^[32] R v D, ^[33] and R v Fitzgerald ^[34] still apply when sentencing for the amended 66EA offence. Whilst I acknowledge the authority in cases such as Chiro v The Queen and KMC v Director of Public Prosecutions (SA) ^[35] those decisions are based on South Australian legislation in section 50 of the Criminal Law Consolidation Act 1935 (SA) which provided that sexual exploitation did not require proof of maintaining an unlawful sexual relationship. Section 66EA of the 1900 Act as now enacted only requires unanimity as to at least two unlawful sexual acts for establishing that an unlawful sexual relationship existed (section 66EA(5)(c) of the 1900 Act). It does not require jury unanimity on any particular foundational act. Unlike South Australia, there is no capacity to seek identification from the jury when returning a guilty verdict as to which two acts were established beyond reasonable doubt.

    32. [2011] NSWCCA 266.

    33. [1997] SASC 6350.

    34. (2004) 59 NSWLR 493.

    35. [2020] HCA 6.

Factual Determination

24. Accepting this to be the legal position in the circumstances of s 66EA of the 1900 Act, a factual determination is required in respect of the foundational offences.

25. The incident described as the “second last time” was not particularised with precision in the indictment. Although there was evidence of an event described as the “second last time” and the Victim’s answer to Q277 was:

“Well, when I was, when I told you about that stuff, I, I didn’t say anything after it, even before it … But, um, he would ask me if I, wuh, hmm, he would ask me if I liked it and stuff, and I’d, obviously, didn’t answer, and I, or I did answer, and he, them, I’m saying, No, I didn’t, because I didn’t and I didn’t want it. And, I, was, and I didn’t say anything else, because I was too afraid, didn’t want to, too depressed, and I couldn’t. I was speechless, couldn’t speak at all”.

26. The Victim’s response does not appear to be in respect of a specific incident but rather generally as to what occurred between the first and the final act. Although the Crown did open in respect of what it described as “the second last act” during discussion, I indicated that it was unclear as to whether this was just part of the evidence of maintaining an unlawful sexual relationship. ^[36] The Crown foreshadowed the preparation of a document. Ultimately, the Crown did not particularise this alleged incident in the proposed draft direction which was MFI 11 nor did the Crown in its final address submit on the alleged second last occasion. ^[37] Indeed, the transcript confirms that the Crown particularised five occasions not six. ^[38] At one point it asserted there were seven foundational acts whereas in fact there were eight as noted in the agreed elements sheet in MFI 22. No directions were given or sought in relation to this alleged second last occasion. This matter was specifically raised with the parties on 7 May 2021.

    36. T 74.33-75.19.

    37. T241.10-.34.

    38. T 259.25-.28.

26. In all of the circumstances, I am not prepared to accept that the second last time as described in the Crown’s submission was a foundational act relied upon.

27. The Defence advanced two arguments disputing the Court being satisfied as to the foundational offences.

28. Firstly in oral submissions, the Defence contested the foundational offences involved in what was described as “the initial offences” being the first and even the second occasion. ^[39] In supplementary written submissions, the Defence contended that the Victim alleged that all the offences occurred at or in the tepee in the Khappinghat National Park however as the evidence supported that the tepee was not constructed until 2018, all foundational offences excepting the last two occurred before the tepee was constructed. ^[40]

    39. T 7.31-.39 (sentence).

    40. Defence supplementary submissions dated 27 April 2021 at [1(i)] and [5].

29. Secondly, in relation to the last foundational act, the Defence argued that the Victim’s account that she pushed the Offender off him cannot be accepted given her evidence was that prior to that time she was pinned to the ground. ^[41]

    41. T 9.24- 10.4 (sentence) and Defence supplementary submissions 27 April 2021 at [1(ii)] and [12]-[13].

30. It is a necessary incident of the Defence contentions that if correct there would be no foundational acts established beyond reasonable doubt. However, for the reasons that follow those contentions cannot be accepted.

31. In respect of the first matter, the Defence drew attention to the Victim’s evidence that after the tepee at Khappinghat National Park was built that was the place where the rapes occurred and that it occurred just beside it but on one occasion inside.

32. In further support of this contention, reliance was placed on the evidence of the Victim’s sister which suggested that the tepee that was the subject of Exhibit A (Khappinghat National Park tepee) has not been constructed until after another tepee which is in Exhibit 6 (the Dawson River tepee) which she claimed was built on another occasion around October or August 2018. ^[42]

    42. T 140.30-49 and T 141.26.

33. The Defence also relied on the Accused’s account which indicated that the first tepee built was in 2017 which was at Dawson River and that the Khappinghat National Park tepee was built in 2018. ^[43]

    43. 210.18-211.44 and 219.24-220.31.

34. The Defence submitted that the timing of the construction of the teepe at Khappinghat National Park was a fundamental fact which would cause doubt as to whether all the offences occurred as alleged.

35. The Crown submitted that although there was conflicting evidence about when the tepee at the Khappinghat National Park was built, it was not necessary for the jury to resolve that conflict to accept as credible the Victim’s evidence that the unlawful sexual acts occurred.

36. The Crown submitted that was because the Victim’s evidence was that:

-   After the first and second occasion the Offender took her to the Khappinghat National Park and gave her martial arts training there, he sexually assaulted her on every occasion he took her there subsequently; ^[44]

-   The sexual assaults took place over a long period of time, and it happened so many times that she could not recall the details of each time;

-   The Victim referred to the tepee in her first JIRT interview on 12 June 2019 to describe the area within the Khappinghat National Park where the sexual assaults took place; ^[45]

-   The first few sexual assaults occurred before the tepee was built, although she could not be exact as to the timing that the tepee was built;

-   They did not occur inside the tepee, but on the ground near where the tepee was built; ^[46] and

-   There was one occasion she was sexually assaulted inside the tepee, but this occasion was not particularised in the indictment.

44. MFI 3 (first interview, Q/A 188).

45. MFI 3 (first interview Q/A116 – 123) and MFI 7 (second interview Q/A 136-144).

46. As marked on Exhibit 9 (trial).

38. The Crown further pointed out that there was no issue taken in the trial that there was a tepee located by police in the place the Victim had described in her interview on 12 June 2019, when she led them to that place on 21 June 2019, in the video walkthrough. ^[47] Nor that this tepee was built by the Victim and her siblings under instructions given by the Offender.

    47. Exhibit 3 (trial).

39. I accept that there was on the Victim’s own account some uncertainty as to precisely when the tepee was built although her account was that the foundational acts relied on occurred all in an area of the Khappinghat National Park. The Victim’s sister’s evidence was also inexact, a point conceded by the Crown. In re-examination, the Victim’s sister stated that she could be mistaken about when the tepee in Exhibit 6 was built and she was not certain about when the others were built. ^[48]

    48. T 141.35-142-7.

40. The timing of the construction of the tepee in question was clearly raised in closing submissions at trial by the Defence as a reason why the Victim’s evidence would not be accepted. Nevertheless, considering the evidence as a whole, I accept the Crown’s contentions and do not consider that the issue raised was a fundamental or essential fact.

41. The Defence also took issue with the last incident asserting the Court would have doubt as to the capacity of the Victim to perform the acts which it asserted leading to the Offender being pushed away. Although it was challenged in cross-examination, I am satisfied beyond reasonable doubt based on the evidence of the Victim that it did occur. It was also consistent with the evidence of both the Victim’s aunt and S as to the observations that they recounted immediately following.

42. It follows that I find the foundational offences as described above established beyond reasonable doubt. The offences can be described in summary form as follows:

Incidents	Relevant section/s	Maximum penalty (at time of the offence)
First Foundational Act (A) – Penile – Vaginal sexual intercourse, aged 11 • The Offender came up behind the victim and grabbed her mouth and told her not to say anything. The Offender stated that if she did he would kill her and kidnap her and use her as a sex doll. • The Offender then pinned the victim down onto her back on the ground with knees on her arms before undressing and raping the victim.	Section 66C(2) of the Crimes Act 1900 (NSW)	20 years imprisonment
Second time (B) and (C), penile-vaginal intercourse; touching the victim’s chest (breasts) and vagina with his hands, aged 11 • The victim described the Offender as placing his hands to touch the victim’s breasts and vagina as both over and under the clothes. • The victim describes the Offender then proceeding to carry out the same act as the offence in A.	Section 66C(2) Section 61M(2) Crimes Act 1900 (NSW)	20 years imprisonment 10 years imprisonment
Third (D) and (E) and Fourth time (F) and (G): penile-vaginal sexual intercourse, sucking the victim’s breasts, aged 11-13 • The victim explained that “pretty much the same thing happened every time” as explained in the offences above including the Offender becoming more comfortable and sucking on the victims breasts twice.	Section66C(2) and Section 61M(2) Crimes Act 1900 (NSW)	20 years imprisonment 10 years imprisonment
The last time (H) November 2018 assault with intent to have penile vaginal sexual intercourse, aged 15 • The Offender grabbed and pinned the victim to the ground laying on her back. The Offender was positioned on his knees, using his legs to restrain the victim’s legs and his elbows to restrain her arms. The Offender then attempted to remove the victim’s shirt, lifting it from the bottom. • The victim grabbed the arms of the Offender and pushed him.	Section 66D/66C(4) of the Crimes Act 1900 (NSW)	12 years imprisonment

Objective Seriousness

43. I accept that the factors to be assessed relevant to objective seriousness are as stated by the Court of Criminal Appeal in Burr v R ^[49] as follows:

    49. [2020] NSWCCA 282 at [106].

“[22] It may be seen from statements in decisions of this Court concerning sentencing for a s.66EA offence as enacted in 1998 (and before the 2018 amendments) that a number of factors will bear upon an assessment of the objective seriousness of the offence (see [86]-[95] above). These include:

1. the number of “sexual offences” (as defined in s.66EA(12)) which were committed on separate occasions by the offender against the victim - the minimum number of ingredient offences to constitute a s.66EA offence was three and the greater the number of offences beyond that threshold, the more serious the s.66EA offence will be;

2. the nature of the sexual offences committed by the offender against the victim - ….;

3. the age of the victim at the time of the ingredient offences - “child” is defined in s.66EA(12) as meaning a person under the age of 18 years and the younger the victim was at the time of the ingredient offences, the graver the s.66EA offence will be - here the ingredient offences under s.66C(3) applied to a victim between the ages of 14 and 16 years - the younger the victim is in that relatively narrow band period, the more serious the offence;

4. the period of time during which the ingredient offences were committed against the victim;

5. the age of the offender at the time of the commission of the ingredient offences against the victim and the age differential between the offender and the victim during the relevant period;

6. the context in which the offender had access to the victim to commit the ingredient offences over the period of time which constituted the s.66EA offence - if the context involves the offender and the victim being in a family or quasi-family setting, which has a capacity to influence the power differential between the two persons and the susceptibility or vulnerability of the victim, this will elevate the objective seriousness of the s.66EA offence.”

44. The Defence also drew my attention to a list used by the primary judge the subject of an appeal in Hillman v R ^[50] the contents of which was not relevantly disputed.

    50. [2021] NSWCCA 43 at [22].

Crown Submission

45. In terms of aggravating factors, the Crown submitted that the Offender breached his position of trust in relation to the victim being an aggravating matter under section 21A(2)(k) of the 1999 Act and further that the Offender had taken advantage of her vulnerability pursuant to section 21A(2)(l) of the 1999 Act. The Crown did not pursue the contention that the offending was aggravated under section 21A (2)(g) of the 1999 Act.

46. Applying the principles in Burr, the Crown drew attention to the number of sexual offences, the number of occasions, the nature of the offending, the age of the Victim and the maximum penalties involved.

47. The Crown pointed to the fact that the acts included physical force and threats of harm to ensure silence and compliance. The Crown submitted that the Victim was never a willing participant in the sexual acts and attempted verbal and physical resistance at times. It further submitted that the Victim gave evidence that the first act went on for a long time and there was evidence that the offending involved the risk of pregnancy to the victim and distress and worry caused by that fact. Attention was drawn to the age of the Victim in the context of the offending, the fact that it took place over a three and half year period and that the relevant foundational acts were not isolated.

48. Overall, the Crown submitted that the offending fell above the mid-range of objective gravity.

Defence Submission

49. The Defence submitted the following factors were relevant to the case:

1. The acts did not involve gross indecency;

2. The act of penetration was not a form of penetration which might be said to be aggravating (for example, anal intercourse);

3. The sucking of the victim’s breasts has been held “towards the bottom range of objective seriousness”; ^[51]

4. Some of the counts occurred when the victim was 15 years old and so was at the higher end of the range for the ages of children that fall within it; ^[52]

5. The assaults did not involve cruel, humiliating or degrading acts.

   51. Corby v R [2010] NSWCCA 146 at [72], [78] and [81].

   52. R v KLN (2005) 154 A Crim R 268 at [43].

50. The Defence submitted that there were no aggravating factors except for breach of position of trust but that was not as significant as it would be in a relationship between a parent or teacher. It accepted that the Victim was generally vulnerable.

51. Noting these features, the Defence submitted the offence fell below the mid-range of objective seriousness compared to the offences that can fall within this category.

Consideration

52. Overall, I am satisfied that there were 8 particularised foundational sexual offences committed against the Victim on five separate occasions.

53. Noting that vulnerability is a feature of all Victims of an offence of this nature, I have noted the relative vulnerability of the Victim in the context of the relevant foundational acts described.

54. The Victim was aged 11 during acts A and B being towards the bottom of the age range in question for the relevant foundational offences. Act A was described as going on for a long time and it occurred in the context of force and threats as described above. The subsequent acts occurred in the context of what had preceded them. The final act of H was also described as involving force with the Victim fearing for her safety. With respect of the aggravated indecent assault matters in C, E and G, I have also noted that the Victim’s age observing there is no bottom age embraced by the foundational offence. I have taken into account the nature of the aggravated sexual intercourse in A, B, D and F being penile-vaginal and H involved an intention to have penile vaginal intercourse. The Offender never used protection in sexual intercourse and the Victim was concerned about the risk of pregnancy. With respect to the aggravated indecent assault matters I have noted the character of the assaults as described above.

55. The offending overall occurred over a three and a half year period beginning in June 2015 to the end of November 2018 being a significant period of time when viewed in relation to a child between the ages of 11 and a half and 15.

56. The various foundational acts were not isolated. I have noted that the offence comprises representative foundational acts but not part of the course of conduct. Section 66EA of the 1900 Act does not permit a departure from the common law approach relating to representative counts. ^[53] Accordingly, the uncharged acts cannot be used to increase the punishment. ^[54]

    53. ARS v R [2011] NSWCCA 266 at [226].

    54. R v Fitzgerald (2004) 59 NSWLR 493.

57. In respect of a breach of a position of trust, this is to be distinguished from a position of authority which is an integral component of the foundational offences.

58. The Defence accepted that the Offender on the occasions that he attended the National Park with the Victim was in a position of trust such that the aggravating factor has been established under s 21A(2)(k) of the 1999 Act.

59. The Offender was the maternal great uncle of the Victim and had access to her in the context of being a trusted and respected elder in an Aboriginal family unit and he took her from her home under the belief that he will be providing her with martial arts training in assisting her to protect herself. The Victim was in a situation where she was being cared for by her maternal aunt.

60. Having regard to all the circumstances, I am satisfied that the offence falls around the mid-range of objective seriousness.

Subjective Case

Prior Record

61. The Offender has no prior convictions which is a matter I take into account in mitigation pursuant to section 21A(3)(e) of the 1999 Act.

Prior Good Character

62. The Crown made no submission in relation to section 21A(5A) of the 1999 Act applied and accepted that there was no evidence indicating that the Offender’s prior good character was of assistance to him in the commission of the offence. The Offender in his case presented a number of testimonials. Those references are from members of his family and others. It is apparent that he is an Aboriginal elder whom is highly regarded. I am satisfied on the basis of the material before me that prior to the offending (subject of the offence for which he is to be sentenced); he was a person of good character. However, in assessing the weight that I can give to that good character, I bear in mind the comments of Howie J in R v Kennedy ^[55] and give this matter limited weight.

    55. [2000] NSWCCA 527 at [22].

Background

63. The Offender was born in Bourke although his parents are from the Taree area. The Offender told Dr Christopher J. Lennings (psychologist) that his parents moved to Bourke as the “government was after the children”. He recorded that it was possible that there were child protection issues that the Offender was unaware of. He recorded that the Offender lived in Bourke and had older siblings before returning to the Taree region when he was six or seven years old. He says that he was eventually removed from his parents (about a year later) as his father was both physically abusive and an alcoholic. He described that he was mostly raised by his mother but his mother eventually had a mental health breakdown and the children were put into care. The Offender told Dr Lennings that he has five sisters and four brothers but says that two have passed away. He described that the stress of being taken away and the past physical and sexual violence have impacted on both he and his siblings. As a child, he was exposed to multiple forms of abuse and at times thinking it was “more than he could bear” and wonder how he survived it, or how he is still here. He stated that when taken into care he continued to be abused by carers (as were his siblings) but by then he was the oldest of the sibling group in care and he had to stand up for them. He describes this experience to Dr Lennings as “a terrible time”. ^[56]

    56. Exhibit 2 (sentence) at [12].

64. The Offender told Dr Lennings that he was not sure how long he was in care but he thought it was at least a few years and his mother by then had moved back to Bourke. He returned to live with her when she returned to Taree. He described the Aboriginal mission in Purfleet as very rough and dysfunctional and reported being exposed to lots of community violence, substance abuse and he continued to be exposed to violence and abuse. He said his mother had no control over the older siblings and they were physically and psychologically abusive to him. He described other relatives would also come to the house and he continued to be sexually abused by them. At some point, he said that his mother went to Canberra and became an “activist” and after four days of her departure the police came and put him and his younger siblings into the Taree police cells. At that point, he was aged 12 and then placed in a group home with children who had intellectual, genetic and other disabilities. He stated that his aunt had placed him there. Throughout this period, the Offender described his mother as remaining in Canberra fighting for Aboriginal rights. He then was placed at Royalston in Glebe where he was physically and sexually abused because he used to wet the bed a lot. He stated that he was aware that in 2017 an expose of Royalston identified a culture of physical and sexual abuse of children. His sisters were then placed in another place and they continued to be exposed to physical and sexual abuse. The Offender described the way that he reunited with his mother, he was sent to a hostel for his education and began living there aged 12 to 13. At that point, the Offender described a determination to take his family out the cycle of abuse. He described having two sons that he was protective of. Both were described as now being in their late 30’s and living a good life. He also has two daughters from different relationships and they were also described as doing well. He stated that Child Protection was never involved with his children and he sought to do the best he could for his family.

63. The Offender stated that he did a bricklaying course and worked for a council but mainly worked in schools as an Aboriginal teacher’s assistant and other welfare type related activities in the 1990’s and after he returned from his isolation he picked up and continued his work in the schools. The Offender’s history recounted by Dr Lennings was replicated in the testimonial of the Offender’s sister dated 31 March 2021. ^[57] However, the testimonial records that the Offender has three sons the youngest of which is still in school and two sons and two daughters who are in the work force. It also notes that the Offender at one stage had a professional boxing career in Sydney in the 1970’s. Apart from working as a teacher’s aide, it records that he worked as a police liaison officer in Taree and he was keen on sports and arts. The Offender’s background was also supported in the testimonials prepared by his two daughters who speak highly of the Offender’s parenting skills.

    57. Exhibit 1 (sentence).

64. Dr Lennings reports that the Offender had two serious relationships the first lasting 10 years (beginning when he was 16) from which he has two boys and the second lasting nine years in respect of which they have a son aged 7 who is co-parented. He described to Dr Lennings having respectful relationships with his ex-partners and enjoyed good relationships with his children.

Childhood Deprivation

67. The Defence contended that the Offender’s history of childhood deprivation was a relevant matter to take into account as reducing his moral culpability in accordance with the principles in Bugmy v R. ^[58] The Crown challenged this essentially on the basis that there was no evidence of a causative link.

    58. [2013] HCA 37; 249 CLR 571.

68. The Crown submission is inconsistent with the approach taken by the plurality in Bugmy v R ^[59] where referring to the decision in R v Fernando ^[60] it was stated:

“[40] ... However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.” (Emphasis added.)

59. R v Perkins [2018] NSWCCA 62. See White JA at [77]-[80] and Fullerton J at [100]. See also Judge v R [2018] NSWCCA 203 at [30]-[32] White JA (Bellew and Wilson JJ agreeing).

60. (1992) 76 A Crim R 58 at [62]-[63].

69. In R v Perkins White JA referred to the above extract stating at [74] adding:

[74] This language is inconsistent with its always being the case that a background of serious social deprivation will be a factor in mitigation of sentence. The focus rather is on whether such a background lessens the moral culpability of the offender. Clearly it could do so if there is a causal link between the background of social deprivation and the offending. But the High Court did not say that that was the only circumstance in which the background of profound social deprivation could be relevant.

Fullerton J adopted these comments adding:

99 …the insidious effect of exposure to family and domestic violence on children in their formative years and the potential for that exposure to family violence to play out in unforeseen ways as a young child develops from adolescence to adulthood have been acknowledged. Recognition of these effects and their potential for lasting harm has found expression and application in a range of academic and forensic disciplines. In curial contexts, where the safety and welfare of a child is the court's primary concern, in particular where placement outside the family home is under consideration, the need to give full weight to the harm associated with family and domestic violence and the direct and indirect impact of that harm on a child is obvious. The potential impact of exposure to family and domestic violence is no less obvious when the subjective circumstances of an offender are assessed for sentencing purposes, irrespective of the age of the offender. The decision of the High Court in Bugmy v The Queen is authority for that approach. Other decisions of this Court exemplify it (citations omitted).

70. In R v Millwood ^[61] Simpson J explained the relevance of evidence of an offender’s background of deprivation stating:

[69] I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been "tragic and dysfunctional". That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.

61. [2012] NSWCCA 2.

71. The account recorded in Dr Lenning’s report was also reflected in the other evidence I have referred to. In in all of the circumstances, I am satisfied that the Offender’s background being one of disadvantage and childhood deprivation is such that that it must be given weight in sentencing by reducing the Offender’s moral culpability. ^[62]

    62. See Ellis v R [2020] NSWCCA 303 at [36].

Health

72. The Offender described to Dr Lennings having heart attacks in 2006, 2014 and 2018. Dr Lennings records that the last heart attack occurred whilst he was in custody in Long Bay. He stated that the Offender has a quadruple bypass. The evidence indicates that he was he was admitted to Prince of Wales Hospital between 22 September 2019 and 9 October 2019 and had coronary bypass surgery after presenting with central crushing chest pain. On 11 October 2019 the Offender attended Bellingen District Hospital with complaints of pain in his graft site on the right thigh, anxiety and palpitations. ^[63] That period does correspond with a period that he was bail refused.

    63. Exhibit 2 (sentence).

73. In any event, the Offender describes that he has a number of medical conditions including sciatica, failing eyesight, tinnitus which affects his hearing and he also has a damaged shoulder being the consequence of playing soccer and experiences significant pain.

74. The Offender describes however that his past continues to give him “untold” anxiety and being in gaol brings back the trauma of his childhood. Dr Lennings finds that whilst he was a young man he developed some problems but this did not result in significant disruptions of his behaviour. Nevertheless, Dr Lennings found that the Offender met the criteria for pervasive low-grade depression and acute anxiety/panic disorder. He stated that he likely had residual features of PTSD although his account suggests that the environment in goal is enlivening these and making his psychological condition more fragile as a result. He described that there is little evidence outside of the offending to suggest an ongoing deviant sexual compulsion.

75. The Offender is an older man with significant physical health factors. It was noted by Dr Lennings that the Offender has significant mental health issues and a traumatic childhood that has caused significant suffering to him over the years. Dr Lennings notes that in gaol the Offender is deprived of the support of his family and community and he will be denied the opportunity to combat his trauma by acts that increase his self-esteem. He opined that the combination of Aboriginality, age, physical illness and psychological morbidity as well as the constant threat of harm due to the nature of his offences is a toxic mixture that makes it very hard for the Offender to develop a resilient response to.

76. The Crown accepts by reason of the Offender’s anxiety and depression and PTSD, the Offender’s time in custody will be made more onerous and I am satisfied that this is the case. Although there is nothing before me that indicates that the Offender’s other conditions cannot be treated in custody. In my view there must be an interrelationship between mental and physical health and I bear this also in mind in terms of his time in custody.

Prospects of Rehabilitation and Likelihood of Rehabilitation

77. Dr Lennings opined that the Offender’s psychosocial features are quite stable, that he had no major mental illness and there is no evidence of a personality disorder despite the offences. Further, it is noted that he has significant support and respect in the community. Whilst it is accepted that he had compulsive behavioural issues in the past including alcohol and gambling these are not evident in the last five years and these do not add to his risk.

78. Dr Lennings describes the Offender’s risk as so low he is very unlikely to be offered treatment within a custodial setting and the issue is therefore moot. Overall, he states assessment of dynamic risk does not suggest that the actuarial risk rating needs to be raised and his risk remains low. Dr Lennings opines that the Offender was not positive about traditional western approaches to psychotherapy, rehabilitation and treatment and that his approach is culturally and spiritually informed and treatments encompassing those approaches will be more meaningful to him and more likely to be taken up by him. In essence, he concludes that the Offender cannot access specific treatments in gaol and his denial will prevent him accessing community based offence specific treatments in gaol. Dr Lennings also suggested the combination of low risk and age suggests the Offender will have a low recidivism risk and offence specific treatment is unlikely to alter that. Dr Lennings notes that should he be released into the community he will benefit from culturally informed psychotherapy and referral to the Aboriginal Medical Service.

79. Dr Lenning’s view has not been challenged. Despite the seriousness of the offending the Offender has previously lived a law abiding life. His age, family and community support satisfy me that he overall there is a low risk of reoffending and has good prospects of rehabilitation notwithstanding his denial of offending. ^[64]

    64. Alseedi v R [2009] NSWCCA 185 at [64]-[65] Giles JA (Mccallum and Hidden JJ agreeing); Ali v R [2010] NSWCCA 35 at [47]-[48] Johnson J (McClelland CJ at CL and Hulme J agreeing); Qutecher v the Queen [2010] NSWCCA 257 at [25] Price J (with McClellan CJ at CL and Latham J agreeing); Park v R [2010] NSWCCA 151 at [61] McClelland CJ at CL (James and RothmanJJ agreeing): MLP v R [2014] NSWCCA 183 at [34]; Bellew J (with Macfarlan JA and Adamson J agreeing).

SENTENCE

80. In sentencing the Offender it was accepted that having considered all other alternatives no penalty other than imprisonment is appropriate.

81. The Offender needs to be punished, made accountable, his conduct denounced and the harm to the Victim recognised in the context of a proportionate sentence. Whilst sentence needs to provide general deterrence its capacity to do so will be limited by the matters referred to. I see no need for any emphasis on community protection and personal deterrence. The sentence should also reflect the Offender’s favourable rehabilitation prospects.

82. In light of this being the Offender’s his first term of imprisonment, the Offender’s health and his favourable prospects of rehabilitation, I propose to find special circumstances and vary the statutory ratio pursuant to section 44 of the 1999 Act.

83. The Offender has previously served 2 months and 25 days in custody from 9 July to 3 October 2019 during which time he was bail refused. He has also been in custody since 14 December 2020. Taking into account time served, the sentence should commence from 18 September 2020.

84. The Offender is convicted and sentenced to 7 years imprisonment commencing 18 September 2020 and expiring on 17 September 2027. He is thereafter to serve an additional term of 5 years from 18 September 2027 to 17 September 2032 during which he shall be eligible to be released to parole.

85. The Offender’s earliest possible release date shall be 17 September 2027.

Endnotes

Amendments

07 June 2021 - coversheet - anonymised offender

26 August 2021 - coversheet - catchwords

14 December 2021 - cover sheet

Decision last updated: 14 December 2021