R v AB

[2024] NSWDC 156

District Court

New South Wales

Medium Neutral Citation:	R v AB [2024] NSWDC 156
Hearing dates:	October 2023
Decision date:	15 March 2024
Jurisdiction:	Criminal
Before:	Everson SC, DCJ
Decision:	Sentence after trial.
Category:	Sentence
Parties:	Crown: N Marney, instructed by the Solicitor for Public Prosecutions Accused: A Radojev, instructed by Schumer Lawyers
File Number(s):	2022/00099912

JUDGMENT

1. There are prohibitions on the publication of matters directly or indirectly identifying the victims in these proceedings. [1] Those prohibitions will be facilitated by the use of pseudonyms. The offender will be referred to as “AB”. AB’s daughter, the victim of counts 1 to 6, will be referred to as “BB”. AB’s eldest daughter, the victim of counts 7–15, will be referred to as “CB”. AB’s son, the victim of counts 16-20, will be referred to as “DB”. AB’s youngest daughter, the victim of counts 21-23, will be referred to as “EB”.

   1. S.578A, Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987

2. From 2001 until sometime in 2016 or 2017, AB, the offender who is before the Court for sentencing, was in a relationship with a woman with whom he had four children: three daughters and a son. In 2017 an ambiguous complaint was made by one of those children about their father, the offender. The police became involved, and they undertook an investigation that included conducting one of more interviews with each of those four children. On 7 April 2022 the offender was arrested and charged with sexual offences against his children. He has been in custody since that date.

3. On 16 October 2023, the then almost 40-year-old offender was found guilty by a jury, and consequently convicted, of 23 child sexual abuse offences against his children. The offending period spanned the time from April 2014 to December 2021, when the offender was aged in his thirties.

4. The offender gave evidence in his defence. That evidence was a complete denial of ever having committed any sexual acts with or towards his children. The jury’s verdict reflects an acceptance – beyond reasonable doubt of the evidence of those children in support of each offence and a rejection of the offender’s evidence to the effect that he is innocent.

5. Notwithstanding that result, it falls to this Court to find the facts on sentence, consistent with the jury’s verdicts and to assess the objective seriousness of the offending and the separate but related task of assessing the moral culpability of the offender. These are critical components of instinctive synthesis in the sentencing process that set the parameters of an appropriate sentence, ensuring the sentence is proportionate to the offence. Needless to say, facts adverse to the interests of an offender will only be taken into account if those facts have been established beyond reasonable doubt, whereas facts submitted to be in favour of an offender need only to be proved on the balance of probabilities.

Objective Seriousness and Fact Finding

6. Given the large number of offences for which the offender appears for sentence it is appropriate that I make a finding as to the objective seriousness of each offence as I deal with the facts relating to that offence. Before doing so I will address some matters of general principles concerning the issue of objective seriousness.

Legislative Guideposts

7. The relevant maximum penalty and any applicable standard non-parole periods are legislative guideposts to be observed when exercising the sentencing discretion. Careful attention to the applicable maximum penalties is required, not the least because they invite comparison between cases that are so grave as to warrant the imposition of the maximum penalty and the particular case that is before the court for sentencing.

8. The standard non-parole period for an offence is a matter to be taken into account when determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender.

Statutory Considerations

9. Section 21A of the Crimes (Sentencing Procedure) Act 1999 states that in determining the appropriate sentence for an offence, the court is to take into various aggravating and mitigating factors, that are relevant and known to the court, as well as any other objective or subjective factor that affects the relative seriousness of the offence. The objective seriousness of each of the offender’s crimes will be assessed wholly and solely by reference to the nature of the offending and without reference to matters personal to him. I will address the subjective factors that affect the relative seriousness of the offence and the moral culpability of the offender after considering the matters personal to the offender.

10. The matters referred to in section 21A are in addition to any other matters that are required or permitted to be taken into account under any Act or rule of law. I acknowledge that I am not to have regard to any such aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so. I also note that any such aggravating or mitigating factor that is relevant and known to the court does not, require the court to increase or reduce the sentence for the offence. An obvious example of the applicability of these considerations is where such relevant factors lend themselves to being erroneously double counted. Such a limiting rule applies beyond the simple situation where an aggravating factor in sentencing is an element of the offence.

11. The sexual offences committed by the offender against his children feature three common things. First, there was a significant age difference between he and the victims. Secondly, commission of the offences within the victim’s home which he used to facilitate his offending and which I find meant that the victims have lived with the constant fear of being sexually assaulted in their own home by their father. Thirdly, a significant breach of the trust and fiduciary duty that a parent owes their children.

12. Whilst I am aware of these features as being matters that might aggravate the objective serious of the offences, I am at least equally aware of the danger posed by potential double-counting. That tension will be resolved as part of the instinctive synthesis of matters so as to arrive at a just and appropriate sentence.

Labels

13. Since section 54B of the Crimes (Sentencing Procedure) Act, was amended by the Crimes Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013, it has not been necessary for a court to identify the extent to which the seriousness of the offence for which the non-parole period is set differs from an offence to which the standard non-parole period is referable. Nevertheless, counsel persist in attempting to assist sentencing judges to do so, as here where the Court has received written submissions advancing conclusions affixing labels such as “at the upper end of the range,” “at about the mid-range,” and “below the midline” of objective seriousness.

14. The application of such labels was the subject of comment by Beech-Jones CJ at CL (as his Honour then was) in Ragg v R [2022] NSWCCA 150. His Honour (with whom N Adams and Lonergan JJ agreed) said at [5], that such an approach can further the objective of transparency in sentencing. His Honour noted the effect of subsection 54B(6) of the Crimes (Sentencing Procedure) Act and remarked that, “in some cases, such assessments can add unnecessary complexity to the sentencing process and have little utility, especially when they yield assessments such as a finding that an offence is “below but towards the mid-range” of objective seriousness.”

15. In R v RE [2023] NSWCCA 184, Stern JA, Fagan and Yehia JJ said at [35] that labels such as “well below the mid-range of objective seriousness” and “towards the lower end of the scale of objective seriousness” do not have inherent meaning and do not add to an understanding of the gravity of the offending, which can only be gathered from the particulars of the case.

16. That is why their Honours said, “it is generally not useful to apply range labels.” Rather, the substance of the assessment of objective seriousness, in any given case, cannot be captured in one of those type of generalised phrases. The substance of a sentencing judge’s assessment of the gravity of an offence is to be found in the judge’s summation of what occurred, including the express recognition of the surrounding aggravating or mitigating features of the offence.

17. I will take an approach guided by those observations in the cases of Ragg and RE and consistent with that taken by Haesler SC, DCJ in R v Wilson (a pseudonym) [2023] NSWDC 354. In accepting the submissions of the parties as to the relative objective seriousness of the offences, his Honour said, at [21]: “the relevant factors which cause the matter to be more or less serious are, in my view, a more readily understandable gauge of seriousness than a label attempting to fix the matter on some notional range.”

18. The Crown has framed the evidence of each of the victims into incidents within which occurred one or more of the offences charged in the various counts on the indictment.

Uncharged Acts

19. The evidence of the three older victims included statements to the effect that they were sexually molested by the offender on occasions in addition to those the offender was charged and convicted. The evidence of the youngest victim implied the same thing. The transcript references upon which I base those findings, are respectively pages 49, 146, 244 and 289.

20. This evidence about uncharged acts, gives rise to an important sentencing consideration that requires identification and elaboration. Whilst a Court may take into account that an offender committed other offences of the same or similar nature to the offence for which the accused is to be sentenced notwithstanding that the accused has not been charged with those offences, it may not use those other offences to additionally punish the offender. R v H (1980) 3 A Crim R 53; R v Burchell (1987) 34 A Crim R 148; R v JCW (2000) 112 A Crim R 466. The uncharged acts operate to deprive an accused of leniency, but they do not elevate the objective seriousness of offences which are the subject of charges: AK v R [2016] NSWCCA 238 at [76] per Johnson J (with whom Beazley and Harrison JJ agreed).

Victim “BB”: the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th counts

21. The victim of the offences charged in the first six counts on the indictment is “BB”. She is the third of the offender’s four children.

22. The 1^st, 2^nd, 4^th, 5^th and 6^th counts on the indictment are offences of aggravated sexual intercourse with a child under the age of ten years. The aggravating circumstance being that the child was under the authority of the offender. Each of those offences are contrary to s.66A(2) of the Crimes Act 1900 and carry a maximum penalty upon conviction of life imprisonment and a standard non-parole period of 15 years imprisonment. The 3^rd count on the indictment is an offence of attempting to have sexual intercourse with a child under the age of ten years. That is an offence are contrary to s.66B of the Crimes Act 1900 and it carries a maximum penalty upon conviction of 25 years imprisonment.

23. The charged offending against BB occurred during three incidents. Each of the incidents occurred at the offender’s home in Claremont Meadows within the period 18 April 2014 to 31 December 2014. Easter Sunday in 2014 was the 20^th of April. The first of the three incidents occurred at a short time after Easter in 2014. The mother of the children was at work. The offender called nine-year-old BB, and her youngest sibling EB, into the offender’s bedroom. The latter was then sent away.

24. This was when the 1^st count happened. The offender closed the door of his bedroom. BB was wearing trousers and a shirt or a jumper. The offender told BB to take off her pants. She pulled them down a little bit. The offender picked her up by the shoulder area and placed her onto the bed, so that she was facing upwards and laying on her back. The offender removed the trousers and underpants worn by BB and she tried to yell out to her sister CB for help. The offender prevented BB from doing so by putting his hand over her mouth and telling her to “shoosh”.

25. The offender removed his tracksuit pants and underwear. He spread BB’s legs with his hands and inserted his penis into her vagina, causing her pain. He moved his body up and down. BB told the jury, “I was scared. I didn't know what was happening. I didn't know what to do.” I have no reason to doubt that.

26. Once the offender withdrew his penis, he told BB victim to go to the toilet, drink, and go back out in the lounge room. As she was putting her pants back on, the offender told her to not tell anyone. There is no evidence as to whether or not the offender ejaculated. I am unable to be satisfied the offender did not wear a condom during the penile/vaginal intercourse.

27. Whilst I am satisfied that the offender made a conscious decision to call BB to his room with the intention of sexually abusing her, thereby manifesting some premeditation, I am not of the view that such limited planning aggravates the objective seriousness of the offence. The offender’s use of force and intimidation by placing his hand over the mouth of BB, when she attempted to call for help is however, a clearly aggravating factor.

28. The second and later incident occurred on a weekend and at a time when the mother of the children was out watching her son DB playing in a football game. BB was playing in her bedroom and the offender asked her if she wanted to play a game. He then took her to his room. This was when the 2^nd and 3^rd counts happened. As before, the offender closed the bedroom door. He placed BB on her back and on his bed and removed her pants and underwear and then his own. He moved on top of her and put his penis inside BB’s vagina. Asked in evidence-in-chief, “How did it feel […] when he was pushing his penis in and out of you?” BB replied, “I tried to stop it, but there was no‑one else home, so I felt useless … I tried to keep pushing him off me.” The offender stopped after a few minutes.

29. Once he had removed his penis from BB’s vagina, the offender AB stood up and sat at the end of the bed, and he told BB to sit up. She did so and the offender then pushed her head down towards his penis and told her to “suck it”. BB said “No”, and kept her mouth closed. The offender continued to push her head against his penis. He pushed his penis against the corner of her mouth. She kept her mouth closed, turned her head away and pulled away from the offender and went into her bedroom. The offender’s use of force in an attempt to overcome BBs resistance is an aggravating factor.

30. The third incident occurred after the earlier two during which the 1^st, 2^nd and 3^rd counts were committed by the offender.

31. The third incident began with the offender telling BB to go to his bedroom. She did so. Relevantly, the offender positioned BB on her back and on his bed where he removed her lower garments. He also removed his tracksuit and underwear.

32. Then he committed the 4^th count. He got on top of BB and, in the words of BB, “He put his penis inside my vagina and started moving.” BB tried to push him away but was unable to do so. The offender withdrew his penis and moved down the bed.

33. He then committed the 5^th count – an act of cunnilingus upon BB.

34. Once he ceased that, he committed the 6^th count by reinserting his penis into BB’s vagina for a short time. It was painful for BB who was by now crying. She described the pain as being “different to any other”. BB said she felt, what she described as, “something like a watery feeling” down her leg. When she looked, she said she saw blood running down her legs. The offender told her that “was normal” and that if she told anyone she would “get in trouble”. BB lifted up her underwear and pants and walked out of the offender’s bedroom and to the toilet.

35. I am unable to conclude beyond reasonable doubt whether or not the offender wore a condom during either the 4^th or 6^th counts although I accept that he probably did not. There is no evidence as to whether or not he ejaculated.

36. I accept the Crown’s submission that causing the victim BB to bleed during the commission of the 6^th count is an aggravating factor. At the time that offence was committed, the circumstances of aggravation provided for in section 66A(3)(a) Crimes Act, included not only the pleaded circumstance of “under authority” but also the intentional or reckless infliction of actual bodily harm on the victim. I find the offender was reckless as to the infliction of actual bodily harm on the victim.

Victim “CB”: the 7^th, 8^th, 9^th, 10^th, 11^th, 12^th, 13^th, 14^th and 15^th counts

37. The victim of the offences charged in indictment counts 7 through 15 is CB. She is the eldest of the offender’s four children.

38. The offending against her occurred during six discrete incidents. The first incident occurred when she was 12 years old at some time from 6 April 2014 to 5 April 2015. The offender took CB by the hand and led her to his bedroom. Upon entry, he locked the door. The offender put CB on the bed and removed her lower clothing and then his own. The offender lifted CB’s shirt and committed the 7^th count by kissing her belly and neck.

39. The offender then closed CB’s legs around his penis and started rubbing his penis between them thereby committing the 8^th count.

40. When assessing the objective seriousness of an indecent assault against a child, a consideration of the actual character of the assault, including the degree of physical contact involved, is of considerable significance: R v PGM [2008] NSWCCA 172; 187 A Crim R 152 at 159-160 [31]. In any given case, the removal of the victim’s clothing and contact with the skin of the victim by the penis of the offender relatively heightens the seriousness of the offending.

41. After the offender committed the 8^th count, he separated CB’s legs with his hands and had penile/vaginal intercourse with her thereby committing the 9^th count. Relevant to the assessment of the objective seriousness of this offence is that it caused CB to feel pain and to cry. After offering CB money did not cause her to stop crying, the offender threatened to send her to her room leaving her in fear she would get into trouble.

42. The second incident also occurred when CB was 12 years old. The offender came into her bedroom whilst she was in bed asleep. CB was sharing her bedroom with her sisters. As the offender was removing CB’s underwear and thereby committing the 10^th count, she awoke and began crying. The offender fled the room only to return and tell CB that he would kill himself if she told anyone about what had occurred and that her mother would hate her.

43. Fairly, the Crown submits that the 10^th count is the least serious of the indecent assaults committed by the offender. Whilst short lived, the gravity of the offence in the 10^th count ought not be downplayed. I accept the Crown’s submission that it must have been extremely confronting for the victim to wake up to find her father in the bedroom, she shared with her sisters. A fact that would have reinforced her fear of the offender.” I say that having regard to the evidence that CB gave about the aftermath of the first incident during which the 7^th, 8^th and 9^th counts were committed. She was asked (at [TT141]): “What was it that stopped you on that first occasion saying anything to mum or anyone else?” She answered, “I was scared. I was scared of him. I was always scared of him.”

44. The third incident occurred after a few days the second incident. Once again, CB awoke to find the offender in her room. He was committing the 11^th count, an act of cunnilingus. The offender said to CB, “tell me you like it”. At this point she started crying and the offender left.

37. Her fear was well-founded. A short time after he committed the 11^th count, the offender returned to CB’s bedroom and committed the 12^th count by pulling down CB’s pants and rubbing his penis against her vagina. This was another instance of an indecent assault aggravated by the removal of the victim’s clothing and contact with the skin of the victim by the penis of the offender.

38. The fourth incident occurred when the 12-year-old CB was showering in the family bathroom. The offender came into the bathroom had a bath and committed the 13^th count, an act of indecency towards CB. The naked and vulnerable CB was compelled to endure watching the offender masturbate whilst he sat in the bathtub.

39. The 13^th count is an offence of committing an act of indecency with a person aged under 16 years, contrary to s.61N(1) of the Crimes Act 1900. It attracts a maximum penalty upon conviction of 2 years imprisonment.

40. The fifth incident occurred in the lead up to Mother’s Day in either 2014 or 2015, when the victim was therefore 12 or 13 years old. In Australia, Mother’s Day is celebrated on the second Sunday of May which was 11 May in 2014 and 10 May in 2015. CB was making a Mother’s Day card in a bedroom at home. The offender then committed the 14^th count by moving CB onto her back and kissing her neck, before lying on top of her. CB unsuccessfully attempted to push the offender off her. CB asked, “why are you doing this?” to which the offender replied, “I’m preparing you for when someone else does it”.

41. Fairly, the Crown submits that the 14^th count is less objectively serious than other indecent assaults committed by the offender.

42. The sixth incident during which the offender, for the last time, indecently assaulted the victim CB, occurred when she was 14 years old. She was in her bedroom, when the offender came in and committed the 15^th count. The offender removed her lower clothing and his pulled his own pants down before kissing her neck and rubbing his penis against her vagina. The offence itself is specifically aggravated by the skin-on-skin contact of the most intimate type.

43. The now somewhat older CB had had enough of her father sexually molesting her and she angrily told him so. It is apparent that her protestation was successful in that he never again sexually molested her. Not so her younger sister EB, about whom I will refer to later.

44. Having now dealt with the specifics of the indictment counts through to the 15^th count there remains a need to further address aspects of some of them.

45. The 9^th and 11^th counts are offences of aggravated sexual intercourse with a child aged from 10 to under 14 years of age, said to have occurred on different days between 6 April 2014 and 31 December 2015. The aggravating circumstance being that the child was under the authority of the offender. Each of those offences are contrary to s.66C(2) of the Crimes Act 1900 and carry a maximum penalty upon conviction of imprisonment for 20 years imprisonment and from 29 June 2015, a standard non-parole period of 9 years imprisonment.

46. It follows that as charged, that offence may have been committed on either side of the date from which the standard non-parole period was removed from the Table, it is not possible to say that the standard non-parole period applied.

47. However, as the learned Crown Prosecutor fairly submits, the victim CB said that the offence charged in the 9^th count happened when she was 12 years old, and that the 11^th count occurred a few days later. The victim was 12 years old from 6 April 2014 to 5 April 2015. The 9^th and 11^th counts would therefore have occurred before the standard non-parole period came into effect.

48. The 7^th, 8^th, 10^th, 12^th, 14^th and 15^th counts are offences of indecently assaulting a person aged under 16 years, contrary to s.61M(2) of the Crimes Act 1900 and carrying a maximum penalty upon conviction of imprisonment for 10 years imprisonment and the remarkable standard non-parole period of 8 years imprisonment. I say “remarkable” for the following four reasons.

49. First, as RS Hulme J referred to in BT v R [2010] NSWCCA 267 at [41], there is an “absurd relativity” between the maximum term and the very high standard non-parole period for a case that is in the mid-range of objective seriousness. If the proportions envisaged by s.44 of the Crimes (Sentencing Procedure) Act were adhered to, a non-parole period of 8 years imprisonment would be appropriate for a head sentence of 10 years and 8 months, a sentence that is greater than the maximum penalty which is, in accordance with long-standing sentencing principles imposed only for an offence that is a worst case of an offence under s.61M.

50. Secondly, because the settled position of the Court of Criminal Appeal as stated in Corby v R [2010] NSWCCA 146 at [71] was that “Although it is difficult to reconcile the two statutory guideposts in the form of the maximum penalty and the standard non-parole period for a s.61M(2) offence, it remains the position that the legislature has made statutory provision for a standard non-parole period and that it is necessary for sentencing courts to give proper attention to the standard non-parole period, particularly when the term of that period approaches the maximum term provided for the offence.”

51. Thirdly, section 61M(2) was repealed with effect from 1 December 2018 and replaced with section 66DB(a) the offence of intentionally sexually touching a child who is of or above the age of 10 years and under the age of 16 years. That sexually touching offence carries the same maximum penalty of 10 years imprisonment but does not specify a standard non-parole period. I note that section 25AA(2) of the Crimes (Sentencing Procedure) Act provides that the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.

52. Fourthly, an offence contrary to 61M(2) was a Table 1 offence and the prescription of a standard non-parole period did not and does not displace the principle that this Court is to have regard to the fact that the offence could have been disposed of in the Local Court. That is a matter that will have a greater influence in the sentencing as both the objective criminality falls below the mid-range, and as the subjective criminality of the offender assumes more significance See Bonwick v R [2010] NSWCCA 177 per Davies J at [47] – [48].

Victim “DB”: the 16^th, 17^th, 18^th, 19^th and 20^th counts

61. The victim of the offences charged in indictment counts 16 through 20 is DB; the son and second youngest of the offender AB’s four children. Those offences occurred during two incidents.

62. DB was a student in year 4 at school and aged 9 or 10 years old, at the time of the first incident. He was playing with an Xbox brand video game console when he was called into the offender’s bedroom, by the offender. Once there he was shown a video and then the offender began rubbing DB’s inner thigh thereby committing the 16^th count.

63. DB asked what the offender was doing. The offender’s response was to tell the now scared DB to shut up. The offender positioned DB face down on the bed and removed DB’s pants. Again, DB asked what the offender was doing, and he was again told to be quiet. The offender held his 10-year-old son DB down, put one hand over his son’s mouth, inserted his penis into the anus of his son and for some time thrust it in and to some degree out. That was the 17^th count, an act of sexual penetration that caused DB pain. Asked to describe the pain, DB said, “it felt like it was just skin stabbed by like, a needle or something”.

64. The offender withdrew his penis and ejaculated onto a towel. I am satisfied the offender did not wear a condom on his penis whilst it penetrated the anus of his son. I am also satisfied the offender threatened his son with the words, "You better not to tell anyone, or watch what happens".

65. In R v Russell (unrep, 21 June 1996, NSWCCA) the aggravated sexual assault involved penile/anal intercourse. Justice Dunford (with whom Gleeson CJ and Studdert J agreed) said: “The nature of the offences is further aggravated, in my view, by the degrading nature of the anal intercourse, even though this offence in any circumstance is of its nature always degrading.”

66. Twenty-eight years later, that obiter observation as to what Justice Dunford opined was the degrading nature of anal intercourse per se, is at least doubtful if not plainly wrong because it promotes stigma, prejudice and discrimination against what consenting adults may or may not do legally. Nevertheless, I find that in this case, penile/anal intercourse is an aggravating factor. I note the 17^th count was committed before the introduction of the standard non-parole period in June 2015.

67. The second incident occurred on another day and shortly after the first incident when DB was home alone with the offender who called him into his bedroom. Once inside the offender’s bedroom, the offender committed the 18^th count. He said to DB, “suck my dick”. The 10-year-old DB refused, and the offender grabbed the back of his son’s head and pushed it towards the offender’s penis and then forcefully into the mouth of DB. Once there, as DB told the jury, the offender, “just kept pushing my head down and up.” This offence, other than an absence of ejaculation, is devoid of mitigating factors.

68. The offender continued seeking sexual gratification. He said, “wicked you done it to me, I’ll do it to you”. The offender then accessed DB’s penis and committed the 19^th count, an act of fellatio. I note that whilst the offender did not apply force, the effect of the previous force was still effective upon the victim, as illustrated by what next occurred.

69. The offender rolled DB so that DB faced towards the bed. The offender then committed the 20^th count by again inserting his penis into the anus of his son and thrusting up and down for a couple of minutes.

70. The 17^th, 18^th, 19^th and 20^th counts are offences of aggravated sexual intercourse with a child aged from 10 to under 14 years of age. The aggravating circumstance being that the child was under the authority of the offender. Each of those offences are contrary to s.66C(2) of the Crimes Act 1900 and carry a maximum penalty upon conviction of imprisonment for 20 years imprisonment. As they occurred during two separate incidents on different days in 2014, they pre-date the introduction of the 9-year standard non-parole period on 29 June 2015.

Victim “EB”: the 21^st, 22^nd and 23^rd counts

71. The youngest of the offender’s four children is his daughter EB, the victim of the offences charged in indictment counts 21, 22 and 23. Each of those offences are the crime of intentionally sexually touching a child who is of or above the age of 10 years and under the age of 16 years, contrary to section 66DB(a) of the Crimes Act 1900, the maximum penalty of which is imprisonment for 10 years. Those offences occurred during two incidents.

72. Each of those three offences occurred after the offender had separated from the victims’ mother and whilst he was living with his new partner with whom he parented a child.

73. The victim EB was living with the offender at the time of the offending. This amounts to a statutory aggravating feature, as it does with all of the victims.

74. The first incident occurred when EB was 12 years old. On an occasion when she was lying on her bed, the offender came in and committed the 21^st count by lying on top of her and rubbing his penis against her, whilst they were both fully clothed.

75. The second incident also occurred at the offender’s home, where the then 13-year-old EB was staying. EB and the offender were in her bedroom telling jokes, when the offender committed the 22^nd count by touching EB on the outside of her clothes near her genitalia. EB told the offender that she did not like it and that she wanted him to stop.

76. Nevertheless, the offender pulled EB’s pants down, rubbed his penis against her vagina and thereby committed the 23^rd count. The skin-on-skin contact of a very intimate nature is an aggravating factor.

77. Planning is not an inherent characteristic of any of the offences for which the offender is to be sentenced. An offence is aggravated if it was part of a planned criminal activity. [2] On the other hand, an offence is mitigated if it was not part of a planned or organised criminal activity. [3] I am not satisfied, on the balance of probabilities, that any of the counts were not planned or premeditated.

    2. sub-section 21A(2)(n) of the Crimes (Sentencing Procedure) Act.

    3. sub-section 21A(3)(b) of the Crimes (Sentencing Procedure) Act.

78. I have had regard to the victim impact statements. If the “injury, emotional harm, loss or damage caused by an offence is substantial” that factor aggravates the commission of an offence. [4] On the other hand, if the injury or harm is not substantial the offence is mitigated. [5] I am not satisfied, on the balance of probabilities, that the injury or emotional harm caused by any of the offences was not substantial.

    4. sub-section 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

    5. sub-section 21A(3)(a) of the Crimes (Sentencing Procedure) Act.

The notion of moral culpability

79. An offender’s moral culpability (and a court’s assessment of it) is a sentencing consideration separate from the objective seriousness of the crime. [6] In the context of the consideration of a standard non-parole in sentencing, that is reflected in the latter part of sub-s.54B(2) of the Crimes (Sentencing Procedure) Act. It is an acknowledgment that other sometimes quite powerful sentencing factors, can impact upon the sentence reached by the court.

    6. Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.

The Offender’s Subjective case

80. I therefore now turn to consider the offender’s subjective case.

81. The offender has been in custody since his arrest on 7 April 2022. The aggregate sentence of imprisonment I intend imposing will be backdated to commence on the date.

82. The offender’s NSW criminal record shows that he was convicted and fined for driving whilst suspended 2020. A barely relevant matter that I put to one side. I accept that before he committed the first offence against his eldest child in 2014, he was a person of good character. Ordinarily an offender’s pre-offence conviction-free history is a matter that would entitle the offender to some leniency when being sentenced. However, in this case the offender’s child sex crimes spanned more than 7½ years. Consequently, in the circumstances of this case, the fact that the offender had not been convicted of any criminal offences when he committed the offences against these victims is not a basis for treating as a mitigating factor the absence of any criminal record before he commenced offending against his children in 2014.

83. A personal history of the offender is set out in the Sentencing Assessment Report and the psychiatric report of Dr Olav Neilssen. The plea in mitigation has been ably summarised by counsel for the offender in his helpful written submissions.

84. I have read all of those submissions. It is not necessary for me to address each and every matter that is raised therein. What does emerge, though, is this. Notwithstanding the assertion by the offender, which I accept on the balance of probabilities, that he was the victim of child sexual abuse as a three‑year‑old by his own father, there is no causal link between that fact and his offending for which he is to be sentenced. The upbringing of the offender, although it had some difficulties, does not rise into the category for which the High Court's decision in Bugmy is authority. That is to say, the evidence does not establish that there was a deprived childhood such that the moral culpability of the offender is reduced. I accept, on the balance of probabilities, the conclusion that Dr Nielssen made, that probably the offender has a mild intellectual disability.  Whatever the extent of that intellectual disability is, it is not such that it rises to the level where the offender has ceased to be an appropriate medium to be made an example of to others. The offender does, however, have a good work history, and he has been productive in his time in custody.  That is a matter that leads me to the conclusion that the offender's prospects for rehabilitation are, at the very least, reasonable.

85. Given the offences for which he is to be sentenced, it is probable the offender will spend his time in gaol as a protection prisoner. Generally speaking, the hardship that will be suffered by a prisoner in gaol because he or she will be in protective custody, is a matter to be taken into account in sentencing. Protective custody can only be taken into account in mitigation of sentence or in the finding of special circumstances where there is evidence that the conditions of imprisonment will be more onerous. [7] In the present case, I note from the offender’s custodial history that he has been moved around and that he is currently in Goulburn Gaol. He will find things more onerous because he is in protective custody. That is a matter that I propose to take into account when addressing the issue of special circumstances.

    7. RWB v R [2010] NSWCCA 147 at [192]–[195]; R v LP [2010] NSWCCA 154 at [21]

86. The offender and his new wife have an infant child. They are unlikely to share quality time for the foreseeable future. Hardship to family and dependants is an unavoidable consequence of a custodial sentence and is not a mitigating consideration, unless such hardship is highly exceptional. In this case, the evidence has not established that it is so highly exceptional.

87. Also relevant to the assessment of the offender’s moral culpability is his motive. In this case, it is apparent that his motive was perverted sexual gratification. As I said, I am unable to find on the balance of probabilities that there is any causal link between the offender’s abuse as a three-year-old by his father and the crimes he committed against his own children.

Consideration and Conclusions

88. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act, which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victim and the community, and the rehabilitation of the offender. The troublesome nature of the sentencing discretion is that those purposes of sentencing overlap and point in different directions.

89. As I said, I have reached the conclusion that the prospects of rehabilitation are at least reasonable, and that is notwithstanding the offender's complete lack of remorse. In the circumstances of this case, having considered all possible alternatives, I am satisfied that no penalty other than full-time imprisonment is appropriate. I am required to at least indicate an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender's crimes.

90. While there is some accumulation the principle of totality requires some moderation. I cannot simply add one sentence on the other. The severity of a sentence increases the longer a person must spend in custody. Whilst an extremely long total sentence may be ‘crushing’ upon an offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release, public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending.

91. The evidence before me properly provides a basis for finding special circumstances. There is the fact that the offender is going to be serving time in protection. There is the fact that he is going to need help after serving a long sentence, in adjusting to normal community life. He will need to be monitored in the community and he may well need sex offender treatment in the community. In so finding, I am mindful of the requirement that the minimum period that the offender should be imprisoned for must properly reflect the gravity of his offences and the punitive purposes of sentencing.

88. When sentencing for offences involving sexual interference with children, judges have an obligation to vindicate the dignity of the child victim and, by the length of the sentence imposed, to recognise the harm done to the child. There is also, understandably, a community expectation that sexual offences against children will be severely punished. A proper sentence marks the Court's view of the seriousness of the crime and should let other wrongdoers know the retribution that will fall upon them if they commit similar crimes.

89. As the offender is to be sentenced for a "serious offence" within the meaning of the Crimes (High Risk Offenders) Act 2006, I am required by virtue of s 25C of that Act to cause the offender to be advised of the existence of the Crimes (High Risk Offenders) Act 2006 and of its application to the serious offences for which the offender is to be sentenced. I propose complying with that requirement by asking the offender's barrister and/or solicitor to undertake that task on the Court's behalf.

Aggregate Sentence

94. In the present case, I will impose an aggregate sentence. In so doing, I am obliged to take into account any applicable standard non‑parole period in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender in the process of instinctive synthesis. I am also obliged to indicate, for those offences to which a standard non‑parole period applies, the non‑parole period that I would have set for each such offence to which the aggregate sentence relates, had I set a separate sentence of imprisonment for those offences. As well, if setting a non‑parole period that is longer or shorter than the standard non‑parole period, I must record the reasons for doing so, including each factor taken into account for doing so.

95. The indicative sentences of imprisonment are as follows.

Count 1:   10 years with a non‑parole period of 6 years.

Count 2:   12 years with a non‑parole period of 8 years.

Count 3:   10 years.

Count 4:   12 years with a non‑parole period of 8 years.

Count 5:   10 years with a non‑parole period of 6 years.

Count 6:   14 years and a non‑parole period of 10 years.

Count 7:   5 years with non‑parole period of 3 years.

Count 8:   6 years with a non‑parole period of 4 years.

Count 9:   13 years.

Count 10:   2 years with a non‑parole period of one year.

Count 11:   11 years.

Count 12:   7 years with a non‑parole period of four years.

Count 13:   1 year.

Count 14:   3 years with a non‑parole period of two years.

Count 15:   6 years with a non‑parole period of four years.

Count 16:   3 years with a non‑parole period of two years.

Count 17:   13 years.

Count 18:   12 years.

Count 19:   10 years.

Count 20:   14 years.

Count 21:   5 years.

Count 22:   4 years.

Count 23:   6 years.

96. I have indicated non‑parole periods lower than the applicable standard non‑parole period due to the findings as to the relative seriousness of the offences, the offender's probable mild intellectual disability identified by Dr Olav Nielssen, the fact that he is going to be spending his time in protective custody, and my associated finding of the need to give effect to special circumstances that justify a variation in the statutory ratio between the head sentence and the non‑parole period.

Orders

1. I confirm that the offender AB is convicted of each of the 23 offences for which he was found guilty by the jury on 16 October 2023.

2. The offender is sentenced to an aggregate sentence of 30 years imprisonment with a non-parole period of 20 years.

3. The non-parole period will commence on 7 April 2022 and will expire on 6 April 2042. The balance of term of 10 years will commence on 7 April 2042 and will expire on 6 April 2052.

4. The offender will be eligible for release to parole at the expiration of the non-parole period.

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Endnotes

Decision last updated: 08 May 2024