R v Abarra - [2025] NSWDC 191

District Court

New South Wales

Medium Neutral Citation: R v Abarra [2025] NSWDC 191
Hearing dates: 28 April 2025
Date of orders: 21 May 2025
Decision date: 21 May 2025
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
(1)   You are convicted.
(2)   You are sentenced to a term of imprisonment of 16 years and 6 months commencing 28 August 2023 and expiring on 27 February 2040 with a non-parole period of 11 years and 1 month expiring on 27 September 2034.
(3)   You will become eligible for release to parole on 27 September 2034.
(4) As the offences occurred while the Victims and Offender were in a domestic relationship and were domestic violence offences as per s 11(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I direct, pursuant to ss 9(1) and 9(2) of that Act, that the offences are to be recorded on the Offender’s criminal record as domestic violence offences.
(5)   You must comply with all reasonable directions of the Community Corrections Service.
(6)   I recommend that on release to parole:
(a)  you be referred to psychological assistance for further assessment related to your dynamic risk factors of reoffending and identification of appropriate interventions;
(b)  you be referred to a general practitioner, registered medical officer, for the purpose of obtaining a Mental Health Care Plan and further psychological support in the community;
(c)  you be subject to supervision of Community Corrections including verification checks of your community supports, NSW Police CPR program facilitators and external service providers, as required, to monitor your behaviour in the community and your participation in offence targeted interventions and any required treatments. I recommend you be categorised as a serious sex offender under the Crimes (High Risk) Act 2006 and mandatory electronic monitoring conditions be included in your parole;
(d)  you not be permitted to be in the company of a female person under the age of 16 years unless accompanied by a responsible adult as determined by your Community Corrections Supervisor;
(e)  you not be permitted to engage with written or electronic communication (including by social media) with any female person under the age of 16 years, other than those approved by your Community Corrections Supervisor; and
(f) in the event that you are released from immigration detention, or are otherwise in the community, that you must report to Community Corrections in NSW within 7 days.

Catchwords:
CRIME – Sentence – Pleas of Guilty – 4 offences of sexual intercourse with child under the age of 10 years, namely 8 and 9 years, against s 66A(1) Crimes Act 1900 (NSW) – 4 offences of sexual intercourse with child under the age of 14 years, namely 10 and 11 years against s 66C(2) Crimes Act 1900 (NSW) – 1 offence of common assault against s 61 Crimes Act 1900 (NSW) – aggravation of abuse of position of authority by action in breach of position of trust – principles – s 66C(2) – aggravation by abuse of position of trust or authority s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 (NSW) – Form 1 offences and uncharged acts – principles of approach – indicative sentences – aggregate sentence – where offender was victims’ mother’s partner and offended when she was absent

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentence and Procedure) Act 1999 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)

Cases Cited:
Afful v R [2021] NSWCCA 111
Al Dhaifa v R [2024] NSWCCA 108
Cahyadi v R [2007] NSWCCA 1
Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
DPP v Burton [2020] NSWCCA 54
Du Plessis v R [2024] NSWCCA 164
Hili v the Queen (2010) 242 CLR 520
LN v R [2020] NSWCCA 131
MRW v R [2011] NSWCCA 260
Nguyen v the Queen [2020] HCA 23
PC v R [2022] NSWCCA 107
R v Dent (unreported NSWCCA 1999)
R v RJ [2023] NSWCCA 273
Vandeventer v R [2013] NSWCCA 33
Wardell v R [2025] NSWCCA 26

Category: Sentence
Parties: Rex (Crown)
Abarra (Offender)
Representation:
Counsel:

S Beaumont (Crown)
M Gallagher (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Jessie Icao (Offender)

File Number(s): 2023/00274211
Publication restriction: Yes.

Judgment on sentence

[A non-publication Order applies and victims are referred to by pseudonyms: s 578A Crimes Act 1900 (NSW); s 15A Children (Criminal Proceedings) Act 1987 (NSW)]

The Offender was born in the Republic of the Philippines on 16 October 1984. He commenced residence in this jurisdiction in July 2019. He stands for sentence for the following offences:

Sequence 2 - sexual intercourse with child under the age of 10 years, namely 8 years, against s 66A(1) Crimes Act 1900 (NSW), which has a maximum penalty of life imprisonment and standard non-parole period of 15 years imprisonment.

Sequence 4 - sexual intercourse with child under the age of 10 years, namely 8 years, against s 66A(1) Crimes Act 1900 (NSW), which has a maximum penalty of life imprisonment and standard non-parole period of 15 years imprisonment.

Sequence 5 - sexual intercourse with child under the age of 10 years, namely 9 years, against s 66A(1) Crimes Act 1900 (NSW), which has a maximum penalty of life imprisonment and standard non-parole period of 15 years imprisonment.

Sequence 6 - sexual intercourse with child under the age of 10 years, namely 9 years, against s 66A(1) Crimes Act 1900 (NSW), which has a maximum penalty of life imprisonment and standard non-parole period of 15 years imprisonment.

Sequence 11 - aggravated sexual intercourse with child (under authority) under the age of 14 years, namely 10 years, against s 66C(2) Crimes Act 1900 (NSW), which has a maximum penalty of 20 years imprisonment and a standard non-parole period of 9 years imprisonment.

Sequence 12 - aggravated sexual intercourse with child (under authority) under the age of 14 years, namely 10 years, against s 66C(2) Crimes Act 1900 (NSW), which has a maximum penalty of 20 years imprisonment and a standard non-parole period of 9 years’ imprisonment.

Sequence 15 - aggravated sexual intercourse with child (under authority) under the age of 14 years, namely 11 years, against s 66C(2) Crimes Act 1900 (NSW), which has a maximum penalty of 20 years imprisonment and a standard non-parole of period 9 years imprisonment.

Sequence 16 - aggravated sexual intercourse with child (under authority) under the age of 14 years, namely 11 years, against s 66C(2) Crimes Act 1900 (NSW), which has a maximum penalty of 20 years imprisonment and a standard non-parole period of 9 years’ imprisonment.

Sequence 22 - common assault against s 61 Crimes Act 1900 (NSW), which has a maximum penalty of 2 years imprisonment and no standard non-parole period applicable.

The principal offences Sequence 2, 4, 5, 6, 11, 12, 15 and 16, and the Form 1 matters Sequences 20, 21 and 24, were all committed against the female child victim who will be referred to in these reasons by the pseudonym “A”.
The principal offence Sequence 22, and Form 1 matters Sequences 18 and 19, were all committed against the male child victim who will be referred to in these reasons by the pseudonym “B”.

PLEA

The Offender entered pleas of guilty at the first available opportunity to each of the offences and is entitled to a discount on penalty of 25%: section 25D(2)(a) Crimes (Sentence and Procedure) Act 1999 (NSW) (referred to hereafter as "CSP Act”).

AGREED FACTS

The Offender was aged between 34 and 38 years at the time of the offending. Victim A was born 22 August 2012. She is now 12 years of age. Victim B was born 31 May 2010. He is now 15 years of age. Victims A and B are biological siblings. In these reasons, the biological mother of A and B will be referred to by the pseudonym “M”. The father of the victims is deceased.
In December 2018, M commenced a long-distance relationship with the Offender, who was then residing in the Republic of the Philippines. In April 2019, M and the victims visited the Offender in the Republic of the Philippines for 3 weeks.
In July 2019, the Offender commenced residing with M in M's home in a suburb of Sydney. M resided with A and B in that home. The Offender was intending to stay for 3 months but remained in Australia because of the Covid-19 pandemic. A was 6 years of age and B was 9 years of age at the time that the Offender started residing at M’s home. At the time of the offending, the Offender was the partner of M.

Offender’s Relationship with Victims A and B

A and B had their own bedrooms in the home, but they often slept with M and the Offender in their bed.
A had a very close relationship with the Offender. The Offender would often kiss A on the lips and hold her hand when they were in public. When A was sleeping in the same bed as M and the Offender, he would put his arm around A and cuddle her. A was also made to pour the Offender alcoholic drinks. When A would attempt to move away from the Offender’s physical touch, he would become angry and ground her or confiscate her phone.
The Offender would preclude A from having male friends and would not allow her to go to birthday parties if any boys were going to be there. A was also not allowed to go to friends’ houses for play dates. B and the Offender had a strained relationship. The Offender would often verbally abuse and bully B, telling him that he "looked gay”, that he was "stupid”, "dumb” and to "shut the fuck up". If B did something wrong or if he forgot to do chores, the Offender would throw things at him.
The Offender would often swear in front of the victims in both the English and Filipino languages. He was also physically violent toward both victims. The Offender would use a wooden spatula, coat hanger or his hand to assault them. He would usually do this when M was not home, but sometimes he would hit the victims in front of her. M witnessed some of the assaults.
On occasion, the Offender would have sex with M while A was in the same bed. The Offender would put a pillow over A’s head so she could not see.

Offences against A

The Offender has been sexually assaulting A since she was 8 years of age. When she was between the ages of 8 and 11 years, the Offender sexually assaulted A "every month, every year." Commencing when A was the age of 8 years, the Offender touched her "private parts" and put his penis inside her vagina numerous times. When A was aged 10 years in 2022, the Offender did the "same thing" once per month.
Overall, A recalls that the Offender has put his penis into her vagina numerous times, that she has performed fellatio on him numerous times and that he has touched her private parts numerous times. The Offender would always touch A's breasts and vagina before inserting his penis into her vagina, and he would "most often" put his finger in her vagina. A would push his hand or fingers away when he inserted them into her vagina. The offender would use tissues, which he would dispose of in the kitchen bin, a face washer or his T-shirt to clean his ejaculate.
The Offender told A that if she told M, he would go to jail. The Offender would also threaten A by telling her that something bad would happen if she told M. If A refused to have sex with the Offender, he would get mad and make her do chores.
When the Offender called A to his bedroom, he told A to tell B that she was going to take a nap. The Offender would lock the door each time the offending happened.

B’s Evidence Relating to Offending against A

When B saw the Offender and A enter M and the Offender’s bedroom, the Offender would tell B that they were going to sleep. B observed the bedroom door being locked and that the Offender and A would usually remain in the bedroom for about 5-20 minutes, during which time B watched television or YouTube.
B was suspicious about what was happening in his parents’ bedroom, as A would often come out of the bedroom saying "oh, I don't want to sleep."

M’s Evidence relating to Offending against A

Sometime in late July 2023, M found one of the Offenders singlets which was covered in his semen. M asked the Offender about it, and he told her that the cat vomited, and he used the singlet to clean up.
Around late July or early August 2023, M found a face washer in the washing basket which was covered in the Offender’s semen. M asked the Offender about it. He told her that the cat vomited on it.

Sequence 2 - Penile-Vaginal Sexual Intercourse with Child under the age of 10 years

On an afternoon of a weekday in 2020, when A was 8 years of age and M was at work, the Offender picked A up at 3 PM from her primary school.
At home, A changed into her pyjamas comprising underwear, shorts and T-shirt. When A was in the lounge room watching television with B, the Offender called her to the bedroom he shared with M. When A entered the room, the Offender closed and locked the door. The Offender told A to take off her pyjamas. A originally said "no", but then either complied or let the Offender take off her pyjamas, including her underwear, because she was scared he would be violent towards her if she did not comply. The Offender was also naked.
The Offender touched A’s "private parts" and inserted his finger into her vagina. The Offender picked A up and put her onto the bed, so she was lying on her back facing him. The Offender masturbated in front of her. He inserted his penis into her vagina and started moving his penis in and out of her vagina (SEQUENCE 2). A was in shock and crying. She could not move because she was in pain. A told the Offender to "Stop" but the Offender continued.
The Offender took his penis out of A's vagina and ejaculated on the floor. The Offender put his clothes back on and walked out of the room. A was crying and went back into the lounge room to watch TV with her brother, B. A did not tell anyone what happened.

Sequence 4 - Penile-Vaginal Sexual Intercourse with Child under the age of 10 years

A few weeks after the Sequence 2 offending, on a weekend in 2020, when A was 8 years of age, she was asleep in the Offender and M's bed with the Offender. M had left the home to go and pick something up. A would often sleep with M and the Offender.
A was wearing shorts and a T-shirt. The Offender removed A's clothing while she was asleep. The Offender "squished" A's breasts and inserted his finger into her vagina. The Offender got on top of A and supported his body with all four of his limbs. The Offender touched A’s “private parts” and put his penis inside her vagina (SEQUENCE 4). A asked him to stop and was crying, but the Offender continued. The Offender ejaculated and wiped his penis with tissues. A went to the lounge room and joined her brother B watching a movie. They did not tell anyone about what happened.

Sequences 5 and 6 – Fellatio Sexual Intercourse and Penile-Vaginal Sexual Intercourse with Child under the age of 10 years

When A was 9 years old, she was in her bedroom with the Offender. The Offender did to her “the same things that he always did". The Offender touched A’s “private parts” and forced A to perform fellatio on him. This was the first time A had performed fellatio on the Offender. The Offender put his hands on the back of her head and started pushing her head back and forward on his penis (SEQUENCE 5). The Offender then inserted his penis into her vagina (SEQUENCE 6). The Offender told A that if she told M, he would go to jail.

Sequences 11 and 12 - Aggravated Fellatio Sexual Intercourse and Aggravated Penile-Vaginal Sexual Intercourse with Child between 10 and 14 years of age

On a weekend in 2023, when A was 10 years of age, she was at home while M was gardening outside the house. The Offender called A to his bedroom. He removed A’s clothes and forced A to perform fellatio on him (SEQUENCE 11) and the Offender then had penile-vaginal sexual intercourse with A (SEQUENCE 12).
When M entered the house, she heard the bedroom door open. The Offender ran out, covering himself with a blanket. M saw A inside their bedroom and the Offender in the hallway with a pink blanket covering him. The Offender looked shocked. A told M that she was looking for something in their bedroom. M asked the Offender where he had been, and he told her that he was in the lounge room.

Sequences 15 and 16 – Aggravated Fellatio Sexual Intercourse and Aggravated Penile-Vaginal Sexual Intercourse with Child between 10 and 14 years of age

At about 4 PM on the day of A’s 11th birthday, 22 August 2023, A was at home watching television with B. M was at work. The Offender had picked up A from school at about 3 PM and was at the home with A and B. The Offender called A to his bedroom and took off A’s clothes and touched her vagina and breasts. He made A perform fellatio on him (SEQUENCE 15) and then inserted his penis into A’s vagina (SEQUENCE 16). The Offender ejaculated in tissues and disposed of the tissues in the kitchen. B saw the Offender and A go into M and the Offender’s bedroom between 3PM and 6PM.

Sequence 22 - common assault pursuant to section 61 Crimes Act 1900 (NSW)

Sometime in 2023, when B was 12 or 13 years of age, he was at home with A and the Offender when he and A argued, including throwing pillows. After their argument, they apologised to each other. The Offender had witnessed the argument. The Offender pulled B’s pyjama pants down and made B put his hands on his head. The Offender said, “Why are you and your sister fighting?” The Offender slapped B on the bottom using a wooden spatula. This hurt B. The Offender threatened to slap B again if he moved.
The following evening, A and B were in the bathroom when A saw the mark on B’s bottom. A told M that B had a mark on his bottom. M said, “What mark?” The Offender was looking “dirty” or “madly” at A, and so A said, “there’s no mark.”

A’s disclosure of offences to Z

In 2023, when A was in year 5 at school, “Z” was her friend. Sometime in Term 2 or 3, when the pupils were lining up to go to class, A told Z that she had been “raped by her father or brother.” Z asked A how or why he did that to her, and A answered that he did it out of “free will.”
Approximately 1 Term after this conversation, Z told the school counsellor of it and told her friend, “X”. Around 27 July 2023, the Assistant Principal of the school was approached by the Deputy Principal, who told her about Z’s conversation with the school counsellor. The school notified the Child Wellbeing Unit. On 28 July 2023, the Assistant Principal approached A in the school grounds at lunch time, and during their brief conversation, A did not disclose anything of the offending and said she was “fine.” The Assistant Principal completed an internal incident report.

A's disclosure of offences to M

On the morning of 28 August 2023, following M discussing with A the Offender’s report to M of messages on A’s mobile phone from a boy, A approached M in the bathroom of the home and told M that the Offender had been “molesting” her. A told M because she had been dating a boy for 2 days and she did not want the Offender to become angry or violent towards her. M discussed A’s complaint with her boss, then together they discussed A’s complaint with A and B, before M contacted 000.

Police Attendance

At about 8:30 AM on 28 August 2023, police attended the home, A told the police that the Offender had been sexually assaulting her, and that the last time it happened was on her 11^th birthday. A was taken to Liverpool Hospital. No signs of physical injury were found on medical examination. Police also spoke to B, who disclosed the physical assaults. At 10:12 AM on 28 August 2023, M gave police crime scene consent for the home. Police seized various items, including bed linen. That same day, A and B participated in an interview with police. They told police that they had not disclosed the offences because they were scared of the Offender.

Arrest of Offender

At 2:50 PM on 28 August 2023, the Offender was arrested at the home. He was cautioned and conveyed to Liverpool Police Station. After he was read his Part 9 Rights, he initially accepted to participate in an electronically recorded interview, but it was stopped because of a language barrier. The Offender cooperated in providing a buccal swab. Police then took out Apprehended Domestic Violence Orders.

Investigation

On 7 September 2023, police carried out a crime scene investigation of the home and seized items, including a wooden kitchen spoon with the names of A and B on it, as well as a black sleeveless shirt with the slogan “guns don’t kill people, dad’s with pretty daughters do.”
Police also obtained from M notes handwritten by A which said:

1) “and if I said no he would get really mad and I get worried if he hits me.”
2) “note #1 so that man touched my body and there is no place in the house except the toilet rooms has he tok addventag [sic] of my body.”
3) “note #1 so that man always touched me in places inside this house and when we open the attic to clean [M] and [B] always goes outside to clean [sic] and he always kept me back with him in the attic and he wants to touch me but I said no and he would get mad at me.”

Form 1 OFFENCES RELATING TO VICTIM A

Sequence 20 - common assault pursuant to section 61 Crimes Act 1900 (NSW)

Sometime in 2023, the Offender used a wooden spatula to hit A on the bottom on top of her clothing. The Offender also hit B with the wooden spatula on this occasion. B heard a “loud whack” and then heard A crying. B was in the same room in the house but was facing in the opposite direction.

Sequence 21 - common assault pursuant to section 61 Crimes Act 1900 (NSW).

Sometime in 2023, the Offender used his hand to slap A on her face.

Sequence 24 - common assault pursuant to section 61 Crimes Act 1900 (NSW)

Sometime in 2023, the Offender hit A on the leg and thighs, twice, with a wooden coat hanger. He also hit B on his bottom and legs with the wooden coat hanger. The Offender told A and B not to tell M because they would get in trouble.

FORM 1 OFFENCES RELATING TO VICTIM B

Sequence 18 – common assault pursuant to section 61 Crimes Act 1900 (NSW)

Sometime in 2019 or 2020, when B was 9 or 10 years old, the Offender used a soup spatula with a metal handle and a blue plastic end to hit B, 5 times.

Sequence 19 – common assault pursuant to section 61 Crimes Act 1900 (NSW)

Sometime in the week of 21 August 2023, when B was 13 years of age, he was at home with A and the Offender when he told A to get the cats from outside because he was only wearing socks and not slippers. The Offender slapped B across the face and told him he was being rude to A. This was witnessed by A because she was standing behind the Offender.

ASSESSMENT OF OBJECTIVE SERIOUSNESS – VICTIM A

The principal offences against A are Sequences 2, 4, 5, 6, 11, 12, 15 and 16. The penalties for the principal offences against A provide statutory yardsticks of the inherently serious nature of these types of sexual offending against children. The parties agreed that the offences occurred whilst A was “under the authority” of the Offender and that was the circumstance of aggravation for each of the 4, s 66C(2) offences.
The following facts, in my view, give context and measure of seriousness to each of the s 66A(1) and 66C(2) offences:

1) The Offender spoke threats should A disclose to M his offending, including that something bad would happen to A’s mother, he inflicted corporeal punishment on A, he inflicted corporeal punishment on B in A’s presence. In consequence, A stated that she complied because she was scared that the Offender would be violent, and did not disclose the sexual offending because she was scared of him.
2) When A did, on occasion, attempt to move away from the Offender’s physical touch, he displayed anger and imposed punishments, such as confiscation of her phone.
3) The Offender directed threatening and bullying behaviour toward B, in addition to physical violence he inflicted on A and B, including verbal abuse such as telling B to "shut the fuck up” and calling him "stupid".
4) The Offender continued in his sexual offending despite A's protest and resistance, including her pushing his hand and fingers away, her crying and her saying “no” and "stop.”
5) The offending occurred in the home of A and B.
6) The fellatio and the events of penile-vaginal intercourse with a child of A’s age, were appalling, degrading, humiliating, fear installing invasions of her body.
7) The specific acts the subject of the Principal Offences occurred in the context of other uncharged, frequent and regular sexualised behaviour, including the Offender touching A’s private parts, making A perform fellatio on him and putting his penis in her vagina approximately monthly between her ages of 8 and 11 years.
8) The Offender was in a position of substantial power over A and B, being the 34 to 38 year old partner of M, having resided in the home of M, A and B since July 2019, A being between 8 and 11 years and B between 10 and 13 years and maintained and exploited his power over the vulnerability of A including by her being aware of his subjugation of B.
9) The Offender’s course of conduct over the period of the offending satisfies me beyond reasonable doubt that he planned to offend when M was absent and A was vulnerable to him, M being regularly away from the home due to her work and on the occasion of the Sequence 4 offending, when M was absent because she had left the home to go and pick something up.
10) The penile-vaginal sexual intercourse was unprotected, which exposed A to risk of disease.

Position of Authority – s 66C(2) Crimes Act 1900 (NSW) – Sequences 11, 12, 15, 16

I now turn to the principles to be applied in regard to the agreed fact that A was under the authority of the Offender at the time of each of the principal offences Sequences 11, 12, 15 and 16.
That A was under the authority of the Offender for the offending, between her ages of 10 and 11 years, is the element of aggravation in each of those offences. That "does not, however, make abuse of authority an element of the offence charged in the strict sense”: PC v R [2022] NSWCCA 107 at [72]. In that case, Bell CJ, Kirk JA and Price J (as his Honour then was) applied what was said by Bathurst CJ in MRW v R [2011] NSWCCA 260 at [77]-[78]:

"There can be little doubt, in my opinion, that matters referred to in section 21A(2)(k), namely abuse of trust and abuse of authority, are distinct concepts although commonly arising out of the same facts. As only the latter of the two concepts formed an element of the offence, in my opinion, it was open to the trial judge to take the former factor into account as an aggravating feature on sentencing. However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court. However, the judge committed no error in taking abuse of a position of trust into account in sentencing the appellant."

The Offender was not in the role of parent for any of the offending. As recorded in the SAR and in Dr Nielssen’s report, the Offender did not intend to permanently live with M in the home, or even in Australia as a permanent resident. Rather, he was the partner of M who entrusted to him in her absence the care of A and B. In my following analysis under the subheading “Position of Trust or Authority – s 21A(2)(k) CSP Act – s 66A(1) offences”, I examine the distinction between trust and authority. Exercising caution, allowing for the overlap with the circumstance of authority, I determine that the Offender prominently abused a position of trust. Abuse of trust is not an element of the offence created by section 66C(2) Crimes Act and in this sentencing exercise, the Court is not precluded from taking abuse of trust as an aggravating factor of the s 66(2) offences. It was a part of the seriousness of his offending under the section: PC v R at [77]. The Offender’s egregious breach of trust in the circumstances of A's youth and innocence in the circumstances of the above-described context in which the offending occurred, does, in my view, aggravate the objective seriousness of each offence committed by the Offender against s 66C(2). Nevertheless, I must be cautious not to double penalise and to bear in mind that the position of authority and the position of trust overlapped to some extent.

Position of Trust or Authority – 21A(2)(k) CSP Act – s 66A(1) offences

The Crown properly submits, and the Defence does not contest, that in all of the Principal Offences against s 66A(1), the Offender abused a position of “trust or authority” in relation to A within the meaning of s 21A(2)(k) CSP Act. That he was in a position of authority is an aggravating factor pursuant to section 21A(2)(k) only in relation to the section 66A(1) offences. The Crown submits (written submission MFI 1 at [9]) that the relationship between the Offender and Victims A and B was "a type of step-parenting role". The Offender submitted (written submission MFI 2 [8]) that, on the facts, there was a "considerable, if not total overlap between authority and trust". For reasons stated above under the subheading “Position of authority – s 66C(2) Crimes Act 1900 (NSW)”, I do not accept either submission. The Offender was not in a "father" role to either Victim. I agree with the Offender’s closing written submission, characterising his role:

"nor could it be inferred that he had assumed such a role as that of a father. All of [the] offences, except one, with respect to A occurred when M was not present. The Offender was entrusted to care for her children, and it was during that time that [the offending occurred].”

The difference between a position of “trust” and a position of “authority” for the purposes of s 21A(2)(k) was explained in DPP v Burton [2020] NSWCCA 54, where Basten JA (Rothman and Cavanagh JJ agreeing) said at [30]-[31]:

“Section 21A(2)(k) refers to the offender abusing “a position of trust … in relation to the victim”. The term is used by way of alternative to a position of “authority”. As the cases indicate, it should be understood as referring to an established relationship, rather than simply a situation in which the victim asserts trust in the offender, or a social arrangement involving a close-knit group. As Howie J had explained in Suleman v R the aggravating factor “is not made out simply because the victim trusted the offender for some reason or other.
A position of trust is not a precise term but may be understood as covering relationships involving an obligation of care and protection, as compared with relationships involving authority over another. Thus, parents, child minders, health workers and other similar relationships may constitute positions of trust…”

Recently, Garling J (McNaughton and Weinstein JJ agreeing) said in Al Dhaifa v R [2024] NSWCCA 108 at [62]:

“The first of these two sub-sections invite a sentencing Court to identify whether the offender was in a position of trust with respect to the victim, or a position of authority with respect to the victim. This is determined by addressing any indicia of the position of the offender vis-à-vis the victim. These may include, but are not limited to, whether the victim lived in the same house as the offender, whether the offender was a parent, step-parent, or otherwise in loco parentis, the age differential between the offender and the victim, whether the offender held a position of authority — such as a schoolteacher or police officer, which could affect how a victim perceived them.”

Positions of "trust" and "authority" according to section 21A(2)(k) are not precisely differentiated. In my opinion, in the instance of each event of offending against s 66A(1), the Offender breached the position more characteristic of trust than of authority. I do accept that he was in a position of authority. But his relationship with A and B bore the obligation of care and protection of them only when M was absent, as he was M’s partner and the adult within the home. The victims were left subjected to the fear the Offender imposed on them which created a very serious vulnerability in them.
It is beyond reasonable doubt that each of the s 66A(1) offences against A occurred in the context of an environment in which A was aware of and experienced the door to the bedroom being closed to exclude any element of security which might have otherwise been provided by the presence of B. In any event, she had experienced and was therefore mindful of the subjugation of B because of the Offender’s violence and insults towards him in addition to the subjugation and fear which the Offender directly imposed upon her.

Sequence 2

A complied with the Offender’s direction that she enter the bedroom. A was aged 8 at the time. She answered "no" to the Offender’s direction that she remove her clothes. Facts do not describe whether A ultimately complied with the Offender, or that it was the Offender who removed A’s pyjamas and underwear. Should A have complied, her compliance would be based on her fear that the Offender would be violent toward her. The Offender was naked. The event included digital penetration and the Offender masturbating in front of her, before the penile-vaginal sexual intercourse. Despite A’s obvious fear, shock, suffering of pain, her crying and her telling the Offender to “stop”, he nonetheless continued with the offending. The Offender did not ejaculate inside of A.
The offending was a very serious incident of offending of this type. At the age of 8, A was in the upper range for this offence (sexual intercourse with a child under the age of 10 years) and so the objective seriousness of the offending is not as high as it would be had A been younger. In my assessment, the Sequence 2 offending falls into what might be referred to as the upper echelons of mid-range objective seriousness for offences of this type.

Sequence 4

A was 8 years of age. The Offender “squished” A’s breasts, digitally penetrated her vagina, touched her private parts and put his penis inside her vagina before mounting her. He continued with penile-vaginal penetration even though A asked him to stop and was crying. The Offender did not ejaculate in the Victim’s vagina. A was the same age as she was when the Sequence 2 offending occurred.
In my opinion, the objective seriousness of the Sequence 4 offending falls into the upper echelon of what might be referred to as the mid-range for offending of this type.

Sequences 5 and 6

A was 9 years of age. The offending occurred in A’s own bedroom, which to some degree aggravates the objective seriousness of the offending above the more general fact of offending in the home and in the bedroom M and the Offender shared. The Offender used force by pressure of his hands on the back of her head to make her fellate him in her own bedroom. He pushed A’s head back and forward on his penis (Sequence 5) before engaging in penile-vaginal sexual intercourse with her (Sequence 6). The Offender threatened A that if she told M, the Offender would go to jail, and this must have conveyed to A an ominous consequence, not an appeasing one, given her unsophisticated understanding of such a statement as is expected at her very young age.
There is no hierarchy between types of sexual intercourse and therefore between the Sequence 5 fellatio and the Sequence 6 penile-vaginal intercourse. In my view, the fact of the physical force used by the Offender pushing A’s head back on forth on his penis for her first-time experience of fellatio at her age must have been horrific and appalling, and would have left A feeling extremely assaulted, humiliated, and bodily invaded.
I assess the sequence 5 offending as more serious than the Sequence 2 and 4 offending. In my assessment, the objective seriousness of the Sequence 5 offending falls at the top of what might be referred to as the mid-range objective seriousness for this type of offending.
That the Sequence 6 penile-vaginal sexual intercourse followed the horror of the Sequence 5 offending places, in my view, its objective seriousness at no lower than the uppermost echelon of what might be referred to as mid-range for this type of offending.

Sequences 11 and 12

A was 10 years of age when this offending occurred. Unlike the Sequence 2, 4, 5 and 6 offending against section 66A(1), this is an offence against section 66C(2) because A had reached the age of 10 years. I repeat, the fact that the Offender abused his position of authority is not an extra aggravating factor to be taken into account pursuant to s 21A(2)(k). But his breach of his position of trust does aggravate the seriousness of Sequences 11,12, 15 and 16.
A complied with the Offender’s call for her to go to his and M’s bedroom because of his abuse of the position of power he enjoyed. A suffered the humiliation of the Offender taking off her clothes and she would have realised from his prior sexual offending what was likely to follow. She suffered horror and humiliation as the Offender once again used force to make her perform fellatio on him (Sequence 11). At age 10, A was at the lower end of the age range for offending of this type and the offending was more serious than it would be had she been closer to 14 years of age when the offending occurred. After the forced fellatio, the Offender engaged in penile-vaginal intercourse with A in the same event (Sequence 12).
I assess both the objective seriousness of the Sequence 11 and Sequence 12 offending as what might be referred to in the upper echelon of the mid-range objective seriousness for this type of offending. Whilst there is no hierarchy between types of sexual intercourse and therefore between the Sequence 11 fellatio and the Sequence 12 penile-vaginal intercourse, it is my view that the force used in the Sequence 11 offending is an aggravating factor and would have inflicted heightened fear and humiliation which continued as an aggravatory factor of the immediately following penile-vaginal, Sequence 12 offending. However, the magnification of fear and horror caused by the Offender’s use of force and the experience of fellatio would not likely have been as high as for the first event of Sequence 5 and 6.

Sequences 15 and 16

The offending occurred on A’s 11^th birthday. While A was slightly older than she was when the Sequence 11 and 12 offending occurred, she was nevertheless in the lower part of the age range for this type of offending. This means the offending was more serious than it would have been, had she been closer to 14 years of age.
Again, A complied with the Offender’s call for her to come to his bedroom due to her fear of him. Again, he took off her clothes and, on this occasion, touched her vagina and breasts, before making her perform fellatio on him (Sequence 15). As the agreed facts do not describe what is meant by “ma[king]” A perform fellatio on him, I therefore do not assess the objective seriousness to be heightened as if by use of physical force other than that which is inherent in the offending. I assess the objective seriousness of the Sequence 15 offending as within what might be called the mid-range for offending of this type. Again, following having made A perform fellatio on him, the Offender proceeded to unprotected penile-vaginal penetration of A (Sequence 16).
I assess the objective seriousness of the Sequence 16 offending as falling within what might be called the mid-range for offending of this type.

OBJECTIVE SERIOUSNESS – VICTIM B

Sequence 22

There is a wide range of seriousness of Common Assault offending against s 61. Significant features of the seriousness of the Sequence 22 offending are: that it was an incident in a course of conduct of the use of violence by the Offender, within B’s home, to instil fear in B and A by the infliction of pain and humiliation after the event of the argument between them, which the Offender voiced he was directing attention to. He used a weapon, being a wooden spatula. The Offender caused actual injury presented by the mark on B’s bottom.

The fear instilled in A was revealed by A firstly telling M of the mark before withdrawing what she said and saying there was no mark because the Offender gave her an intimidating look. The Offender told B that if he moved, he would receive another slap, which was indicative of the use of cruelty by which the Offender indoctrinated B, causing B fear of violent reprisal for what the Offender might perceive as non-compliance. Again, in the context of the power imbalance already observed and the physical imbalance of the Offender being at around 38 years of age whilst B was only of around 13 years of age, I assess the Sequence 22 offending as above what might be referred to as the mid-range of objective seriousness for this type of offending.

FORM 1 OFFENCES – PRINCIPLE – UNCHARGED ACTS - PRINCIPLE

The approach to dealing with the 5 Form 1 offences is, as was explained by Beech-Jones CJ (as his Honour then was) in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [23]-[26]. Form 1 offences can be taken into account as demonstrating an “additional need for personal deterrence and retribution” in respect of the substantive offences on the indictment to which they attach. To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter. However, the attachment of an offence on a Form 1 does not of itself increase the assessment of the objective seriousness of the substantive offence. The facts and circumstances of the Form 1 offence may be relevant to the assessment; for example, the circumstances might place the substantive offence in context. The factual nexus between the Form 1 offence and the substantive offence might demonstrate the victim’s vulnerability when the substantive offence was committed.
Uncharged acts that amount to an offence cannot be taken into account in this way because they are not matters that warrant additional need for personal deterrence and retribution. However, the facts and circumstances of uncharged conduct can otherwise be considered in the same way that the facts and circumstances of Form 1 offences can be considered. His Honour Beech-Jones referred with approval to what was said by Hamill J in LN v R [2020] NSWCCA 131 at [159], identifying four particular respects in which uncharged assaults on a child might be available to be used when sentencing an offender for assault of a child, namely:

“(1) To establish that the [assault] was not an aberration in an otherwise blameless life or to deny leniency on the basis that [the offender] was otherwise a person of good character.
(2) To dispel any suggestion that the [assault] was an isolated incident.
(3) [To support] findings as to the [offender’s] motive and state of mind at the time of the [assault].
(4) To establish that the victim was vulnerable, and that the offender knew that the victim was vulnerable because [they] caused that vulnerability by the commission of the earlier assaults.”

SUBJECTIVE CONSIDERATIONS

Remorse

The Crown concedes that the Offender has demonstrated remorse by:

his plea of guilty;

his acceptance of the facts of his offending; and

his comments made to Dr Nielssen, forensic psychiatrist, recorded in his report dated 23 March 2025 at page 2:

“I am not going to blame anybody… I am blaming myself… I did that and I know the right and wrong… I am the adult and I know the bad and the good… I so regret what I have done… I feel guilty and disgusted at what I have done to the kids… they are beautiful kids… I am not going to defend myself because I am guilty and I know that I give (sic) them a trauma that they are not going to forget… I wish I had the chance to tell them I am sorry for what I have done… I am the one who is supposed to protect them."

I find the sincerity of the above quoted passage to warrant significant discount because of the Offender’s statement quoted by the author of the SAR that he "forgot A was a kid and thought it was okay" as "A already knew about those things". Being a person of average intelligence, as Dr Nielssen assessed the Offender to be, in my assessment, the Offender continues to display a serious lack of insight into the nature of his offending in relation to A.
In Crown written submissions (MFI 1 at [34]) the Crown accepted the truth of the Offender’s statements to Dr Nielssen of remorse and contrition but put that the Offender’s remorse and contrition is nevertheless qualified by him apportioning some blame to A and his partner M (MFI 1 at [35]). I agree.
The SAR, dated 17 March 2025, reported the Offender’s partial blaming of A, B and M. Whereas the Offender expressed his concern that his biological children and extended family in the Republic of the Philippines have been impacted by his entry into custody and inability to support them financially, his insight into the wider impact to the community was “focused on himself and his fear” of the wider community "know[ing] what I have done they will reject me (sic)".
In my opinion, that the Offender expressed victim blaming to Dr Nielssen when interviewed on 11 March 2025 and separately to the author of the SAR on 17 March 2025 shows that his remorse, despite the breadth of his expression in the first quoted passage above, is not to be accepted as full and heartfelt. He did he did not give evidence on oath and therefore his statements could not be tested. The author of the SAR recorded:

“Mr Abarra also attributed partial blame to… [A] who was between 8 and [just] 11 years of age for his sexual offending due to her actions, as well as [M] due to stressors he reported were present in their relationship."

In Dr Nielssen's report at page 3, it is reported that the Offender described the stressors affecting his state of mind in the period of the offending to include that he was missing his family and felt resentful of M because she was playing poker machines, and that when she lost money, she would be sarcastic, yell at him and threaten to send him back to the Philippines. He said that he became annoyed because she was sent flowers by another man. He told Dr Nielssen that he threatened suicide at the time and called an ambulance which took him to hospital where he spoke to a counsellor who calmed him down. Dr Nielssen observed that the Offender did not report to ongoing counselling or taking prescribed medication.
The Offender told Dr Nielssen that the first year his relationship with M was good until she started forcing him to go to work because he only had a visitor visa at the time, and after 3 years M started complaining that she was paying all the bills and that he was a cost. He described looking after A and B whilst M was at work left him feeling “like a nanny” and that he really wanted to go home to the Philippines but could not. He told Dr Nielssen (page 7) that, after the first year, his sexual relationship with M was not satisfactory to him.
In the portion of his report dedicated to opinion, Dr Nielssen expressed an observation which, with respect, is not within his specialist field of knowledge of psychiatry but which is a summary expression of the Offender’s attempt to rationalise and displace personal responsibility. The passage reads:

“Mr Abarra's offences appear to have arisen from the opportunity that presented itself through the poor boundaries and lack of supervision by [M] and her failure to protect them from physical punishment, rather than a specific disorder of abnormal sexual interest, heterosexual paedophilia”.
…
From the information that is available, Mr Abarra was not affected by a significant form of mental impairment at the time of the offending. Rather, his offending was related to a combination of circumstances, in particular, the loss of intimacy with [M] and the opportunity that presented from being left unsupervised with a female child."

It is important to observe that the Offender moved into M's house with A and B in July 2019, had been a resident of the house because he was M's partner for months or a year before the first of the primary offences in 2020. M was a single mother who had known the Offender since December 2018 and was afforded the opportunity of that period of at least months to observe him in the household. There can be no criticism of a mother in the circumstances of M who had to go to work or had been outside of the house for an errand, etc., leaving her partner in a position of trust for the security, safety and wellbeing of her young children. Worldly experience is that mothers and fathers with no more awareness of their partner then M had of the Offender do likewise every day.
The Offender’s expressions of remorse regarding his offending against A must be considered with the whole of the evidence, including his victim blaming and further blaming M for his circumstances of life in Sydney at the time of the offending. None of those matters to which he directed blame are in anyway mitigating of the sentence to be imposed.
In relation to the Sequence 22 offending against B and the Form 1 common assault offending against A and B, the offender lacks full remorse and insight into the wrongfulness of his offending. He told the author of the SAR that the violence was of utility as a means of punishment for B’s behaviour. He minimised his offending by saying that it was “within reason” while disagreeing that it constituted criminal conduct. He falsely told the author that he "never [used violence against] the girl". Plainly, on the agreed facts he did strike A and used a spatula and coat hanger as weapons against her
In my assessment, the Offender’s remorse regarding his offending against A and B is qualified. For these reasons, in my assessment, bearing in mind s 21A(3)(i) CSP Act, the Offender, in relation to all of his offending, has failed to provide evidence of unqualified acceptance of responsibility for his actions or acknowledgment of the injury, loss and harm caused to A and B respectively.
His expressions recognising his offences (including by his pleas of guilty) and limited remorse entitles him to a proportionately limited mitigation of sentence in relation to the offences against victim A and mitigation of degree only due to his guilty plea admitting his offences in relation to Victim B (separate from the 25% discount for plea to which he is entitled.)

Good Character

The Offender, by his counsel’s written submission (MFI 2 at [20], page 12) properly concedes that his engagement in serious sexual abuse of A, which continued over more than 2 years, defeats any suggestion that he is entitled to leniency of sentencing based on good character and that any of these offences were an isolated incident. Further, counsel conceded that the “uncharged acts demonstrate that the offending was not limited to the charged offences.” The Form 1 common assault offences involve the use of actual violence. Counsel for the Offender characterised the Form 1 offences as relating to "chastising the victims because of their behaviour" but, in my opinion, it is beyond reasonable doubt that the offending involved opportunistic acts performed by the Offender in his course of conduct to instil fear in order to continue to obtain sexual gratification through abuse of A when the protection of M was absent and to discourage his offending being reported.
The Offender’s antecedent criminal history whilst living in Australia for about 4 years prior to his arrest for the subject offending shows him to be a person of otherwise qualified good character. There is no evidence before the Court of antecedent criminal history prior to his coming to Australia and whilst he lived in the Republic of the Philippines. In Australia, there is only a 2021 offence of common assault for which he was fined in the Local Court. There is no record of breach whilst he has been in custody since late August 2023. The SAR reports that the victim of the 2021 common assault was an adult male, known to the Offender through sporting competition. There are no other indications of the Offender displaying antisocial behaviours in the community.
The SAR reported that the Offender’s "current offences display emerging sexual offending behaviours in addition to a broadening of his violent behaviour to include domestic related offending.” Whilst there is the only one prior apparently not-very-serious offence of common assault, the Offender nevertheless has previously committed an offence of violence. Ultimately, I accept the SAR observation as fair and balanced.
In my assessment, the offender’s good character is limited in that way and does not entitle him to the degree of leniency of sentence as might be the case for an offender of a truly clear antecedent history. Furthermore, the fact that Offender engaged in the serious and continual sexual abuse of A and common assault of B over the extended period, in my view, depletes an argument that he is to be treated as a person of good character. Defence counsel’s above referred to concession was appropriately made. None of the offences, including the Form 1 offending, were, in that sense, isolated incidents. Further, the Offender’s conduct in the offending over time involved the continual exploitation of the vulnerability of the victims; this gives context to an extended period of criminal behaviour that involved force and violence.
There is no evidence that M was aware of Offender’s 2021 offence of common assault or of his conviction and penalty imposed on 13 February 2023. The Offender submits that the offences arose following the commencement of his relationship with M and that his good character and lack of previous convictions, so far as he was known of by M, was not a factor that assisted him in the commission of the offences. I accept the Offender’s submission that the facts do not show that it was his good character which facilitated his commission of the child sexual assault and common assault offences, but, rather, that it was his relationship with M which placed him in the position of authority and of trust to protect and care for M’s children while she was at work or away from the house for another reason that facilitated his commission of the offences. Obviously, his relationship with M and the trust which that engendered created an environment in which he could commit the offences: see AH v R [2015] NSWCCA 51 per Hidden J (Beazley P, as her Honour then was, and Fullerton J agreeing) at [25].

Mental Health & Hardship of Incarceration

The Offender is currently of interest to the Australian Border Force due to being an unlawful non-citizen. His immigration status and risk of deportation does not weigh in consideration of his sentence. What is relevant for sentence is that the whole of his family remains in the Republic of the Philippines. The Offender told Dr Nielssen that he sees his family by Audio-Visual Link most Saturdays. His sole support in Australia is a friend he met in custody.
Both the SAR and Dr Nielssen report that the Offender did not suffer compromised mental health at the time of the offending and prior to entering custody. These observations mean that the Offender is not entitled to mitigation of sentence on account of some compromised state of mind such as in relation to a weak mental capacity to control mental urges or exercise good judgment. . He committed the offences as a person of average intelligence. As such, the need for both specific deterrence and general deterrence is not lessened.
Dr Nielssen recorded the Offender’s report that, following incarceration, he asked to see a doctor due to ongoing poor sleep and had asked to see a counsellor, though was yet to receive an appointment. The Offender told Dr Nielssen that he had been assaulted on several occasions in prison because of the nature of his offences, and had been subject to racial and other abuse, and sexual advances in the showers that are shared with 80 inmates. He told Dr Nielssen that he was in constant fear whilst in prison. Regarding the assaults, he told Dr Nielssen that some blows were to his face and head and that following x-ray investigation, no history of head injury required observation in hospital.
I would understand from that history that whatever injuries the Offender was referring to were not serious. Nothing in the material briefed to me confirms that history of assault and medical examination. There are no Justice Health papers tendered. In those circumstances, I exercise caution regarding accepting that history as an unsworn self-benefitting statement given to Dr Nielssen for the purposes of his report to be considered in this sentencing exercise.
Dr Nielssen reported that the Offender speaks reasonable English. He does not suffer any special circumstance of hardship whilst incarcerated on account of differences of language.
Dr Nielssen diagnosed the Offender with suffering depressive illness best described as an adjustment disorder or a clinically significant response to the adverse event of incarceration. This includes interrupted sleep, negative ruminations, anxiety and thoughts of suicide. Nr Nielssen assessed his presentation at interview to be “quite depressed.” Dr Nielssen’s prognosis is that the Offender is likely to make a “near complete recovery” without treatment over time, depending on his circumstances once this matter concludes. Dr Nielssen observed:

“[The Offender] reported some benefit from his contact with chaplains and his participating in religious courses. He would be likely to derive some benefit from counselling to help manage symptoms of anxiety and depression. He was not found to have a disorder of abnormal sexual interest for which he requires specialist counselling.”

Dr Nielssen expressed the opinion that the Offender has found the experience of imprisonment more onerous than many other prisoners because of the nature of his offences, the separation from his family and having to serve his sentence in a form of protective custody where he is nevertheless subject to assault and abuse. Symptoms of depression would inevitably make the experience of imprisonment more distressing.
In my opinion, Dr Nielssen’s report describes special circumstances of heightened anxiety and depression whilst in prison while his family resides overseas. This is the Offender’s first experience with incarceration. In combination with separation from his family and his heightened anxiety and depression, I am satisfied that the Offender’s hardship during incarceration is to some degree greater than that of other prisons. The Offender is entitled to some mitigation of sentence on account of this special circumstance.

Offender’s Life Circumstances

The Offender was born and raised in the Republic of the Philippines. He told Dr Nielssen that his father was a gambler and an alcoholic. The Offender was often the target of his father’s anger. The Crown appropriately acknowledges that it is open to the Court to find as a special circumstance that the Offender was subject to physical abuse as a child, inflicted by his father. The SAR observed that the Offender, “Appears to have entrenched attitudes which are supportive of the use of violence against male children as a means of punishment while simultaneously minimising its severity as he compares it to his own reported victimisation.”
The effects of deprivation or hardship during childhood may persist throughout life. It is inherent in each of the sexual assault offences against A that there is an element of violence and cruelty to which, having so suffered as a child, the Offender may be to some degree desensitised in comparison to a person who has not suffered that abuse. In regard to the Common Assault offending in the Form 1 matters and the primary Sequence 22 offence against B, his experience of suffering violence as a child and that desensitisation more directly meets the observation of the author of the SAR. In regard to the Form 1 offences against A and B, they being common assault offences, and his primary Sequence 22 offence, the Offender is entitled to some mitigation of sentence for that reason. A lesser degree of mitigation is accepted in relation to the primary sexual assault offences against A.

The Offender is one of 6 siblings who all completed high school. Only he continued to college where he obtained a diploma in computer skills, but he worked as a sausage-maker and fisherman afterwar graduating. Later he worked as a debt-collector. He told Dr Nielssen that he is of heterosexual orientation and denied being sexually attracted to children. From his previous long-term partner, he has two children who live in the Republic of the Philippines. He viewed pornography, but told Dr Nielssen, “[N]ot too much… no kids because it’s not allowed.” He enjoyed a good sexual relationship with M at first. He drank alcohol but never used illicit substances. He told Dr Nielssen that he does not remember being affected by alcohol at the time of the offences.
Whilst living in the Republic of the Philippines, he never required psychological treatment or counselling, and in this jurisdiction received counselling only in relation to issues with M threatening to send him back to the Republic of the Philippines. The counsellor was able to calm the Offender down by speaking to him. In Australia, in accordance with the terms of his Visa, the Offender was unable to work for some time but, for a period, obtained work at a cosmetics factory. He told Dr Nielssen that he had originally planned to stay in Australia for only 3 months. He had already met M beforehand, and she had travelled with A and B to meet him in the Republic of the Philippines. He was unable to return after the borders were shut due to the Covid-19 Pandemic. His visa was extended allowing him to stay 3 years. His last substantial employment was as a debt collector for 5 years prior to coming to Australia.
Dr Nielssen observed:

“Factors that may have conveyed an increased risk of depression include the affect of growing up in poverty, and the physical and other abuse he received from his father, the breakdown of his relationship with [M], difficulty adjusting to life in Australia and some aspects of his relationship with [M], a woman on whom he was financially dependent.”

However, Dr Nielssen did not opine that life circumstances or deprivations experienced by the Offender contributed in any way to his offending. Specifically, Dr Nielssen observed:

“However, the main cause of his current [mental health] symptoms is the effect of being charged with this offence.”

In my assessment, based on the evidence, the Offender is not entitled to mitigation of sentence on the basis of special circumstances of mental health experienced in his life prior to his arrest.
In my assessment, the Offender is entitled to some degree of mitigation of sentence on account of the special circumstances of his growing up in poverty and suffering the violence of his father.

Rehabilitation

On behalf of the Offender, it is submitted that he has good prospects of rehabilitation for the following reasons:

he has achieved the age of 40 years with only one prior criminal offence, being the Common Assault committed in 2021 and for which he was fined in the Local Court on 13 February 2023;

he is willing to undertake professional counselling designed to meet his criminogenic needs;

he has been compliant with Corrective Services whilst incarcerated and he has elected to regularly attend religious activities whilst incarcerated;

he has, whilst in prison, already taken steps toward his rehabilitation, including the following:

“CSI Working Safely” - A Guide To Safe Working Practices Training;

Use Digital Technologies To Communicate In A Work Environment;

Crossroads Certificate Of Achievement Who Are You course;

Taking 4 bible courses with the EMMAUS Correspondence School NSW:

been baptised as a Christian.

The SAR reports that, whilst incarcerated, the Offender has worked as a textiles general hand at Goulburn Correction Centre. He has shown a good work ethic and maintains good relationships with custodial staff and peers. He is willing to engage in interventions with Community Corrections and Correctives Psychology Services regarding his sexual offending and utilisation of violence. He is both willing and able to participate in Community Services work should it be required on a Community Order.
If in the community, he would be supervised at the T3/Medium Supervision Level of the Service Delivery Standards, meaning that he would be required to have contact with a Community Corrections officer every 2 weeks. The SAR recommends a supervision plan, including that he be referred to Correctives Psychology in the community for further assessment related to his dynamic risk factors and to advise on interventions, be referred to a General Practitioner to obtain a Mental Health Care Plan and further psychological support in the community. Community Corrections would undertake verification checks with his community supports, Police and external service providers as required to monitor his behaviour in the community and his participation in offence-targeted interventions and any required treatments.
Ultimately, the SAR reported that the Offender is “unsuitable” to undertake Community Service work because he will have no fixed address upon release.
My assessment that he is of limited remorse for his offending and in particular his victim blaming and his complaining of his environment in Australia and as partner of M as if his environment offered some real hardship worthy of amelioration of his offending conduct, causes me to assess his prospects of rehabilitation with caution. Nevertheless, bearing in mind that this, his first experience with imprisonment, has caused him to commence his direction by those steps toward rehabilitation, I accept his prospects of rehabilitation are a special circumstance entitling him to some adjustment down of the non-parole period in ratio to the parole period.

Recidivism Risk

Both the SAR and Dr Nielssen assess the Offender’s risk of recidivism as low. The Offender has no stable accommodation in this jurisdiction to which he would go when re-entering the community. The SAR reports that he would not be eligible for temporary accommodation due to his current immigration status. Nevertheless, the Offender informed the author of the SAR that, when released to the community, he intends to reside in the Blacktown area to facilitate an offer of employment from his friend.

COMPARABLE CASES

There is a necessary mathematical relationship between the statutorily provided maximum penalty and standard non-parole period and the assessment of objective seriousness to be borne in mind when sentencing: R v RJ [2023] NSWCCA 273 (“R v RJ”). In this case, when determining appropriate indicative sentences, it is be borne in mind that s 66A(1) provides for a maximum penalty of life imprisonment and a standard non-parole period of 15 years’ imprisonment, whereas section 66C(2) provides for a maximum penalty of 20 years’ imprisonment and a standard non-parole period of 9 years’ imprisonment.
Reference to comparable cases can be of assistance when determining a sentence. Nevertheless, it is important to bear in mind the limitations on the use that can be made of comparable cases. Obviously, individual justice is required in each sentence and the facts and circumstances of no two cases are identical. As Adamson J (as her Honour then was) observed in Vandeventer v R [2013] NSWCCA 33 at [45], which was applied in Du Plessis v R [2024] NSWCCA 164 at [79]:

“One cannot judge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely…”

As her Honour stated, differences in the facts and circumstances affect the utility of the comparative exercise. Further, the range of sentences imposed in the past do not fix boundaries within which a present judge must, or even ought to, sentence. Rather, past sentences merely provide a yardstick against which to evaluate a proposed sentence: Hili v the Queen (2010) 242 CLR 520.
In R v RJ, at [67]-[68], her Honour Adamson JA explained that prior sentences, when applied, require only a consistency of principle rather than a consistency of result. Whilst in that case Basten AJA and Sweeney J came to different determination of indicative sentences and in the ultimate aggregate sentence, Adamson JA’s statements of principle and observations were agreed to. They are instructive and of assistance to me in my determination of the Offender’s sentence.
The Offender’s threats to A, use of punishment and violence directed at her and B on occasion in their mutual presence and the contextual circumstances in which the offending occurred, show an established relationship of the Offender’s abuse of power over A and B to avoid reporting of the offending to M. This can be properly viewed as attempting to thwart the administration of justice. I respectively adopt Adamson JA’s statement in R v RJ at [78]-[79] in this sentencing exercise, with allowance for the fact that the Offender was not a family member, but M’s Partner, that:

"[W]here the complainant is a family member of the accused… particularly when the complainant is a minor… and emotionally dependent on the accused… the forces arrayed against the complainant to incline her not to report offending conduct, not to give evidence of offending conduct and not to attend the trial may be monumental. The likely effect of a complainant reporting an offence, particularly in a recorded interview and giving evidence at trial may be cataclysmic.… the courage and fortitude of complainants… ought not be underestimated. Without such courage and fortitude, the administration of justice is thwarted and the offences such as those for which the [Offender is to be sentenced] are not pursued and a complainant's fear and silence (while understandable) have the effect of granting immunity from prosecution to sexual offenders such as [the Offender].”

I note that her Honour was dealing with pressure placed by the offender in that case on the victim in breach of s 319.
Her Honour also said in R v RJ at [90]-[92] that:

“'In a case such as this where the total (aggregate) sentence is required to reflect the multiple separate instances of offending against the victim over a period of years, more than two years in the present case, when applying the principle of totality, it is necessary to ask whether the sentence for one offence can comprehend and reflect the criminality of another. Accordingly, this Court, in determining the appropriate sentence, is obliged to apply the totality principle and consider whether the aggregate is a just and appropriate measure of the criminality involved.

And, quoting from Nguyen v the Queen [2020] HCA 23 at [64] (Gageler, Nettle and Gordon JJ), that:

"Ultimately, the object of the sentencing exercise is to impose individual sentences, that so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as is possible, accurately reflects the totality of criminality comprised in the totality of offences.… it is something about which sentencing judges may take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency.”

In R v RJ, the offender was the father of the victim. The offences were committed when the victim was between 11 and 13 years of age. The Crown submitted that the aggregate sentence for the sexual offending, which included frequent penile-anal intercourse and forced fellatio under significant aggravating circumstances, was manifestly inadequate. The Offender did not plead guilty, there were no significant mitigating factors and multiple substantial aggravating factors were present, including the absence of remorse or contrition. The Crown was successful in the appeal. On resentencing, Adamson JA came to different indicative sentences and a different aggregate sentence to Basten AJA and Sweeney J, who were in agreement.
For the s 66C(2) penile-anal sexual intercourse, Adamson JA determined indicative sentences ranging between 11 and 12 years and 8 months’ imprisonment with non-parole periods of 8 years. For the fellatio sexual intercourse, her Honour determined indicative sentences of 9 to 10 years’ imprisonment with a non-parole period of 7 years to 7 years and 6 months. Her Honour assessed the appropriate aggregate sentence for ss 66C(2) and (4) offences and the s 61 assaults of 20 years’ imprisonment with a non-parole period of 14 years and 6 months.
Their Honours Basten AJA and Sweeney J instead determined indicative sentences for the s 66C(2) penile-anal sexual intercourse ranging between 9 years and 10 years imprisonment with non-parole periods of 7 years to 7 years and 6 months. For the fellatio sexual intercourse, they determined 7 years imprisonment with non-parole periods of 5 years. They determined an aggregate sentence for all the ss 66 C (2) and (4) offences and the s 61 assaults of 16 years imprisonment with a non-parole period of 11 years and 6 months.
In PC v R [2022] NSWCCA 107, Bell CJ, Kirk J and Price J dismissed an appeal advanced on the ground, amongst others, that the sentence was manifestly excessive. The offender had entered pleas guilty to 2 counts of sexual intercourse with a child under the age of 10 years against s 66A(1), 4 counts of sexual intercourse with the child when above the age of 10 years and under the age of 14 years against s 66C(2) and one count of indecent assault on a person under the age of 16 years. There were 7 charges taken into account on a Form 1, including 5 charges of sexual intercourse with a child against s 66C(2) and 2 charges of indecent assault on a person under the age of 16 years. The offender was the father of the victim who was aged between 8 or 9 years and 12 years at the time of the offending. The indicative sentences determined at first instance before applying a 25% discount for plea ranged as follows:

Section 66A(1) - victim between 8 and 9 years – between 10 and 12 years with a non-parole period of between 6 years and 7 years and 1 month (rounded down to the month).

Section 66C(2) - victim between 10 and 11 years – between 6 years and 8 years with a non-parole period between 3 years and 6 months and 4 years and 9 months.

The aggregate sentence was imprisonment of 16 years with a non-parole period of 9 years.
In PN v R [2024] NSWCCA 86, Wilson, Chen and Huggett JJ rejected an appeal based on the grounds that, amongst others, the sentence was manifestly excessive. The offender entered pleas of guilty to an indictment containing 15 counts, which included 14 State offences and a further 13 offences on 2 Form 1 documents, as well as 1 Commonwealth offence, and asked that a second charge be taken into account when sentence was passed for that offence. The Court considered indicative terms determined at first instance after 25% discount for early pleas of guilty. The sentence imposed at first instance, which was not overturned on appeal, was for the State offences an aggregate term of 37 years with a non-parole period of 25 years. Taking into account the Commonwealth offence, the total effective sentence was 38 years imprisonment with a total effective non-parole period of 26 years. The facts of the offending conduct which occurred over years by the victim’s paternal uncle, who was a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW) because he had been convicted in 2009 for a prior child sex offence which occurred when he was residing with the victim's family for about 13 or 14 months before moving to a separate address in the regional town. He maintained regular contact with the victim’s family after moving to the separate address and frequently offered to assist with caring for the victim and her brothers so as to continue with his offending.
The level of grooming (from when the victim was aged 6 years) and depravity including exploitation of the victim niece for media, distinguishes the seriousness of offending by degree, from this case. PN’s subjective case was negligible (at [73]). Sentences for s 66A(1) ranged between 13 years and 16 years imprisonment with non-parole periods of between 10 years to 12 years and 4 months imprisonment. The victim was between 8 and 9 years of age. The Court considered the sentence to be “stern” and perhaps “severe”, but not manifestly excessive. As such, the Court’s decision illuminates the severity of sentence which might be imposed for offending against s 66A(1), apposite the severe statutory maximum penalty and standard non-parole period.
Wilson J (Chen and Huggett JJ agreeing) at [51] identified the importance of the statutory yardsticks of maximum penalty of life imprisonment and standard non-parole period of 15 years for s 66A offences, as follows:

“A maximum penalty of life imprisonment signals the gravity with which the parliament and the community regard offences such a this; a s 66A offence is, together with murder and some particularly grave drug offences, among the most serious crimes that can be committed. This is a feature that must be reflected in the sentence imposed.”

SYNTHESIS

I commence by recognising the statutory yardsticks for offending against s 66A(1) are a maximum penalty of life imprisonment and standard non-parole period of 15 years imprisonment, and for offending against s 66C(2) a maximum penalty of 20 years imprisonment and a standard non-parole period of 9 years imprisonment.
It is important that sentencing for the s 66A(1) offences and for the s 66C(2) offences reflects the statutory yardstick differentiation. The parliament and the community, by those yardsticks, have expressed abhorrence warranting more severe penalty for sexual intercourse against children under the age of 10 years, and less severe but still very stern penalty for aggravated sexual intercourse against children between ages 10 and 14 years. In the present case, s 66A(1) crimes when A was in the relatively upper range of age for offending of that type, in my view, in order for the Court to comply with those statutory yardsticks, must be penalised more severely than the offending when A, on her 11th birthday, suffered sexual intercourse when in the lower age range for offending against s 66C(2).
In arriving at what I determine to be appropriate sentences I bear in mind that the context of offending facts to which I have referred include uncharged acts. The Offender is not to be punished for uncharged conduct. In this case those Agreed Facts are composed in the establishment of the fact that the charged acts were not aberrations or purely spontaneous and occurred when the Offender knew that the victim, the subject of the charged act, was vulnerable because of the commission of those other acts.
The parties agree that the s 5 threshold is crossed. Nevertheless, I am not satisfied that the s 5 threshold is crossed in respect of the offending against B. As such, with the exception of Sequence 22 Common Assault offence against B, taking into account the Form 1 matters, the appropriate sentence for every offence (offences against A) is full-time imprisonment. It would be wrong, however, given the lengthy full-time sentence required to be imposed, if the Offender’s sentence in relation to the Sequence 22 offending be served in the community: Wardell v R [2025] NSWCCA 26 at [128]-[131].
Section 54A(2) of the CSP Act defines the standard non-parole period for an offence as that, taking into account only the objective factors affecting the relative seriousness of the offence, which is in the middle of the range of seriousness. In accordance with section 54B(2) of the CSP Act I take into account the standard non-parole period for each offence.

In these reasons, I have assessed the objective seriousness for each offence bearing in mind the gross cruelty, levels of grooming and depravity unfortunately present in more serious offending against ss 66A(1) and 66C(2) as well as those cases where the offending is less serious. The assessment was made by reference only to the nature of the offending and without reference to matters personal to the offender or to any class of offenders: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel And Bell JJ). I have considered the nature of each offence and the circumstances of the Offender. I have allowed a 25% discount on account of the offender’s early pleas. In relation to Sequence 2 and Sequence 22 I have taken into account the Form 1 matters attaching to each of those principal offences in my assessment of the need for personal deterrence and retribution. The Agreed Facts establish uncharged acts, the principal offences and the Form 1 offences showing the course of conduct of the Offender, establishing as I observed earlier in these reasons, that the offending was in no way an aberration or instances of spontaneous and out of character lack of judgment or restraint. The history of that conduct, set out in the Agreed Facts, warrants a need for serious personal deterrence and retribution. It is well established that the Offender not only knew of the vulnerability of Victim A, but abused his position of power to indoctrinate her and her brother B to accept that opposing him or exposing him by report would carry adverse consequences including his violent punishment. By humiliating and degrading B in this way, he further secured the compliance and indoctrination of A. By assaulting each of them, he deliberately caused them to fear him and not oppose him.
Unlike, as unfortunately is the fact in other cases; in the present offending, fortunately, neither victim suffered physical injury. There is no medical evidence of psychological injury; but, the harm done to the children, in particular Victim A is recognised, may be permanent and deserves a sentence denunciating the offending in that regard. Nevertheless, the evidence does not show that harm to be out of the ordinary for this type of offending.
I have determined the Offender to be entitled to some degree of mitigation on account of his very qualified remorse and insight in respect of the offending against A. He does not have sufficient insight of his offending against B to appreciate the wrongfulness of it. In relation to his offending against A and against B he has failed to provide unqualified acceptance of responsibility for his actions or acknowledgment of the injury, loss and harm caused to them. Of course this is more serious in relation to Victim A. I have found him entitled to a degree of mitigation on account of good character, but not so much as if his antecedent history did not include an offence of violence. He is entitled to some mitigation of sentence on account of the special circumstances of hardship during incarceration on account of heightened anxiety and separation from family as well as this being his first experience with full-time incarceration. The poverty and violence of his upbringing entitles him to some mitigation of sentence.
After considering these features of his subjective case, and my acceptance, with caution, of his prospects of rehabilitation, I am satisfied of special circumstances entitling him to an adjustment down of the non-parole period in the ratio of parole to non-parole period. The assessment of his risk of recidivism in the low range, supports such adjustment in order to assist his reintegration into the community, for the safety of the community.
Nevertheless, after consideration of all factors, in my opinion, the appropriate sentence must be of severity required by the need for general deterrence and for specific deterrence and provide adequate punishment, retribution and denunciation including as is warranted by the harm done, particularly to Victim A.
Section 53A of the CSP Act provides for the imposition of an aggregate sentence for two or more offences. In compliance with s 54B of the CSP Act, there being standard non-parole periods prescribed for each of the Sequence 2, 4, 5, 6, 11, 12, 15 and 16 offences, I have determined for each of those offences a non-parole period shorter than the standard non-parole period.
In my view the sentence for Sequence 2 requires some increase of the period of imprisonment on account of the additional need for personal deterrence and retribution, given the Form 1 physical assaults of A.
In my view the sentence for Sequence 22 requires some increase of punishment on account of the additional need for personal deterrence and retribution given the Form 1 physical assaults of B.
A’s Victim Impact Statement was, in my opinion, balanced and measured. For a child of her current age, it was an eloquent expression of the harm she has undergone. She said that the Offender had made her “lose my happiness” and that, to her understanding, M had to sell the home she grew up in and move to another house she did not know as a result of the offending.
She said that only a few of her friends understand her and have been able to help her through her feelings. As is not uncommon in the Court’s experience, A "punished" herself for not telling M earlier and now always sleeps with M because of the nightmares the Offender “brought into [her] life.” A also stated that her relationship has changed with her brother, who has become angry because of the way(s) the Offender hurt both himself and A.
Section 25AA(3) requires the court to have regard to the trauma of sexual abuse on children. In this case, there is no expert opinion evidence of psychological affects of that trauma. In my assessment of the seriousness of offending when separately considering each offence, I have applied my acceptance of the Offender’s submission that "the psychological harm suffered by the victims is not out of the ordinary for the type of harm that would be experienced by most children who are victims of sexual assault and common assault.”
On behalf of the Offender it is properly conceded that children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties later in life caused by offences such as those committed against A. It is appropriate to consider the general observation made by Lee J in R v Dent (unreported NSWCCA 1999) at 6 (Gleeson CJ and Loveday J agreeing) that:

“… sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished… and those who engage in this evil conduct must go to jail for a long period of time, not only to punish them but also in an endeavour to deter others who may have similar inclinations.”

I am aware that following the Offender’s incarceration, his bridging visa was cancelled and his application for a Partner (Subclass 801) Visa was refused. Whilst it might be expected that the Offender will be deported from Australia once he is released from prison, consideration of his deportation is irrelevant in this sentencing exercise: Afful v R [2021] NSWCCA 111 at [51]-[52].
In my opinion the following indicative sentences would be appropriate to be imposed had I proceeded by separate sentences:

INDICATIVE SENTENCES – AFTER 25% DISCOUNT FOR PLEA
SEQUENCE NUMBER	HEAD SENTENCE	NON-PAROLE PERIOD
Victim A 2	10 years, 6 months	7 years, 12 days
Victim A 4	9 years, 9 months	6 years, 6 months, 11 days
Victim A 5	10 years, 10 months	7 years, 3 months
Victim A 6	10 years, 6 months	7 years, 12 days
Victim A 11	6 years, 9 months	4 years, 6 months, 8 days
Victim A 12	6 years, 4 months	4 years, 2 months, 26 days
Victim A 15	5 years, 7 months	3 years, 8 months, 22 days
Victim A 16	5 years, 7 months	3 years, 8 months, 22 days
Victim B 22	1 year fixed term

Howie J in Cahyadi v R [2007] NSWCCA 1 said at [27] (a statement approved in R v Ryn [2016] NSWCCA 1 at [231]) that:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two’s offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that, where the offences are discreet and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

The appropriate aggregate sentence must in application of the principle of totality, consider whether the sentence for any one offence can comprehend and reflect the criminality of another. In this regard, significant concurrence of sentence is appropriate in relation to the Sequence 5 and 6 offences, the Sequence 11 and 12 offences and the Sequence 15 and 16 offences because they, in those pairings, occurred in single events. The Court is obliged to consider whether the aggregate sentence is a just and appropriate measure of the total criminality involved.
In my assessment, an aggregate sentence of 16 years and 6 months imprisonment with a non-parole period of 11 years and 1 month is appropriate.
The offender has been incarcerated since 28 August 2023 solely on account of the subject offending. The parties submit, and I agree, that it is appropriate to backdate the sentence of imprisonment to commence on 28 August 2023.

Orders

You are convicted.
You are sentenced to a term of imprisonment of 16 years and 6 months commencing 28 August 2023 and expiring on 27 February 2040 with a non-parole period of 11 years and 1 month expiring on 27 September 2034.
You will become eligible for release to parole on 27 September 2034.
As the offences occurred while the Victims and Offender were in a domestic relationship and were domestic violence offences as per s 11(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I direct, pursuant to ss 9(1) and 9(2) of that Act, that the offences are to be recorded on the Offender’s criminal record as domestic violence offences.
You must comply with all reasonable directions of the Community Corrections Service.
I recommend that on release to parole:

you be referred to psychological assistance for further assessment related to your dynamic risk factors of reoffending and identification of appropriate interventions;

you be referred to a general practitioner, registered medical officer, for the purpose of obtaining a Mental Health Care Plan and further psychological support in the community;

you be subject to supervision of Community Corrections including verification checks of your community supports, NSW Police CPR program facilitators and external service providers, as required, to monitor your behaviour in the community and your participation in offence targeted interventions and any required treatments. I recommend you be categorised as a serious sex offender under the Crimes (High Risk) Act 2006 and mandatory electronic monitoring conditions be included in your parole;

you not be permitted to be in the company of a female person under the age of 16 years unless accompanied by a responsible adult as determined by your Community Corrections Supervisor;

you not be permitted to engage with written or electronic communication (including by social media) with any female person under the age of 16 years, other than those approved by your Community Corrections Supervisor; and

in the event that you are released from immigration detention, or are otherwise in the community, that you must report to Community Corrections in NSW within 7 days.

**********

Decision last updated: 27 May 2025

Medium Neutral Citation:	R v Abarra [2025] NSWDC 191
Hearing dates:	28 April 2025
Date of orders:	21 May 2025
Decision date:	21 May 2025
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	(1) You are convicted. (2) You are sentenced to a term of imprisonment of 16 years and 6 months commencing 28 August 2023 and expiring on 27 February 2040 with a non-parole period of 11 years and 1 month expiring on 27 September 2034. (3) You will become eligible for release to parole on 27 September 2034. (4) As the offences occurred while the Victims and Offender were in a domestic relationship and were domestic violence offences as per s 11(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I direct, pursuant to ss 9(1) and 9(2) of that Act, that the offences are to be recorded on the Offender’s criminal record as domestic violence offences. (5) You must comply with all reasonable directions of the Community Corrections Service. (6) I recommend that on release to parole: (a) you be referred to psychological assistance for further assessment related to your dynamic risk factors of reoffending and identification of appropriate interventions; (b) you be referred to a general practitioner, registered medical officer, for the purpose of obtaining a Mental Health Care Plan and further psychological support in the community; (c) you be subject to supervision of Community Corrections including verification checks of your community supports, NSW Police CPR program facilitators and external service providers, as required, to monitor your behaviour in the community and your participation in offence targeted interventions and any required treatments. I recommend you be categorised as a serious sex offender under the Crimes (High Risk) Act 2006 and mandatory electronic monitoring conditions be included in your parole; (d) you not be permitted to be in the company of a female person under the age of 16 years unless accompanied by a responsible adult as determined by your Community Corrections Supervisor; (e) you not be permitted to engage with written or electronic communication (including by social media) with any female person under the age of 16 years, other than those approved by your Community Corrections Supervisor; and (f) in the event that you are released from immigration detention, or are otherwise in the community, that you must report to Community Corrections in NSW within 7 days.
Catchwords:	CRIME – Sentence – Pleas of Guilty – 4 offences of sexual intercourse with child under the age of 10 years, namely 8 and 9 years, against s 66A(1) Crimes Act 1900 (NSW) – 4 offences of sexual intercourse with child under the age of 14 years, namely 10 and 11 years against s 66C(2) Crimes Act 1900 (NSW) – 1 offence of common assault against s 61 Crimes Act 1900 (NSW) – aggravation of abuse of position of authority by action in breach of position of trust – principles – s 66C(2) – aggravation by abuse of position of trust or authority s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 (NSW) – Form 1 offences and uncharged acts – principles of approach – indicative sentences – aggregate sentence – where offender was victims’ mother’s partner and offended when she was absent
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentence and Procedure) Act 1999 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW)
Cases Cited:	Afful v R [2021] NSWCCA 111 Al Dhaifa v R [2024] NSWCCA 108 Cahyadi v R [2007] NSWCCA 1 Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 DPP v Burton [2020] NSWCCA 54 Du Plessis v R [2024] NSWCCA 164 Hili v the Queen (2010) 242 CLR 520 LN v R [2020] NSWCCA 131 MRW v R [2011] NSWCCA 260 Nguyen v the Queen [2020] HCA 23 PC v R [2022] NSWCCA 107 R v Dent (unreported NSWCCA 1999) R v RJ [2023] NSWCCA 273 Vandeventer v R [2013] NSWCCA 33 Wardell v R [2025] NSWCCA 26
Category:	Sentence
Parties:	Rex (Crown) Abarra (Offender)
Representation:	Counsel: S Beaumont (Crown) M Gallagher (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Jessie Icao (Offender)
File Number(s):	2023/00274211
Publication restriction:	Yes.