R v Apps (a pseudonym)

[2020] NSWDC 111

District Court

New South Wales

Medium Neutral Citation:

R v Apps (a pseudonym) [2020] NSWDC 111

Hearing dates:

21 February 2020

Decision date:

21 February 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of five years and two months imprisonment. Non parole period of three years.

Catchwords:

SENTENCING – multiple sexual offences old and fresh - aggregate sentence.

 

SENTENCING – after trial – old offences - two complainants - mixed verdicts – convictions for sexual and indecent assaults - full benefit of acquittals.

 

SENTENCING - relevant factors on sentence - after trial - baby sitter - breach of trust-victim impact - young immature offender – delay - multiple offences - structure of sentence.

  SENTENCING- after guilty plea- recent offence- sexual intercourse child under 16 – child aged 15 years 11 months 3 weeks – consent – in company - age difference - child isolated - adult offender - guilty plea - custodial sentence required on other matter.

Legislation Cited:

Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Dawkins v R [2018] NSWCCA 278
DM [2005] NSW CCA 181
Hearne (2001) 124 A Crim R 451
Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150
KT v R (2008) 182 A Crim R 571
Mill v The Queen (1988) 166 CLR 59
Nelson [2016] NSWCCA 130
R v Cattell [2019] NSWCCA 297
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159.
R v Pham & Ly (1991) 55 A Crim R 128
R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
R v Todd [1982] 2 NSWLR 517
Ryan (2001) 206 CLR 267
Veen v The Queen No 2 (1988) 64 CLR 465
Wakeling v R [2016] NSWCCA 33
Weininger v The Queen (2003) 211 CLR 629

Category:

Sentence

Parties:

Steven Apps (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr P Williams (for the offender)

  Solicitors:
Jennifer Chalker Lawyer (for the offender) (for the offender)
Mr A Tonks (for Director of Public Prosecutions)

File Number(s):

2017/00173694; 2019/00063783

Publication restriction:

Pursuant to s.578A Crimes Act 1900 and s.15A Children (Criminal Proceedings) Act 1987 that there is to be no publication of the names of the offender and the complainants, any information that might identify the child complainants or that may reveal the relationship between the offender and the child complainants.

SENTENCE

1. As the publication of the offender’s name for the sentence matter would lead to identifying both the offender and the complainant’s in the trial matter (at which time he was a juvenile) I make a suppression order for the name of the offender.

2. Pseudonyms have been used for the names of the offender and child complainants. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child including the complainants and the offender. Identifying information has been removed from this version of the judgment to comply with the statute.

Introduction

3. On 15 October 2019, at Bega a jury was empanelled to try Steven Apps for 16 counts alleging sexual offences said to have been committed by him on two younger female cousins. On 23 October 2019, the jury returned with guilty verdicts on two counts and not guilty verdicts on two counts. A majority verdict direction was given. Later that day the jury returned with guilty verdicts on four more counts. The jury could not agree on eight more counts.

4. The sentence matters were adjourned until today, 21 February 2020. The matters for sentence were joined with another unrelated matter, where a guilty plea had been entered at Bega Court. That plea was accepted in full satisfaction of an indictment alleging more serious offences.

5. The matters for sentence today are trial counts 6, 7, 8, 13, 14 and 15. They relate to offences charged pursuant to, respectively, s 61J(1), s 61M(2) and s 61O(1) Crimes Act 1900 (as they then were). The sentence matter relates to an offence from 2019 charged pursuant to s 66C(4) Crimes Act.

Trial - facts for sentence

6. There were two complainants; Anna, then 13, currently 18; and Cindy, then 11, currently 16 years old. The complainants are sisters and both reside on the New South Wales South Coast. Apps is their first cousin. Apps was born on 3 March 1995.

7. The complainants informed their mother of allegations of abuse in May 2017. The police were notified. Both complainants disclosed two particular incidences where they allege that Apps sexually abused them when they were together. They were referred to at trial as the cubby house incident and the New Year's Eve incident. Cindy also disclosed an additional allegation.

8. On 9 June 2017 Apps attended Bega Police Station after a prearranged appointment was made. He was placed under arrest, cautioned and interviewed. He agreed he was present at the specific times and locations of the allegations, but chose not to comment any further.

9. Counts 10 and 11 alleged respectively that Apps had penile and anal intercourse and then penile/vaginal intercourse with Cindy without her consent in the lounge room. The prosecution case was that these acts occurred after counts 6, 7 and 8, while Anna was upstairs having a bath. As Apps was acquitted he must have the full benefit of those acquittals and I cannot have regard to them in the sentencing exercise.

10. The following are summaries of the evidence given about each count where guilty verdicts were returned. All relate to the New Year's Eve 2012, so it is 2012 to 2013, incident. I proceed on the basis that the jury accepted each child's version.

Count 6

11. While Anna was having a bath, Apps took hold of Cindy and took her into the garage of the house. Apps said, "Don't tell your mum what I'm about to do." Apps laid her on the cement floor and took off her pants. He then inserted his fingers inside her vagina. He moved his fingers around inside her vagina. He did this for some time. Cindy screamed for her mother and Apps said, "Shut up." His victim continued to cry. She was in pain.

Count 7

12. Whilst Cindy was laying on the ground, Apps removed his fingers from her vagina and licked her vagina with his tongue. He continued this for a few minutes.

Count 8

13. Apps allowed Cindy to sit up and as she did this he pulled out his penis from his pants. Apps grabbed her hand and forced her to touch his penis. He moved her hand up and down, was holding it around his penis. After about five minutes he stopped.

Counts 13 and 14

14. Apps then went to the lounge room. He first showed Cindy his laptop. He said he was going to watch an animated children's TV show. Anna came over to watch. He went onto an internet site notorious for pornography. Both Anna and Cindy were seated on the floor of the lounge room. He asked the girls if they wanted to see how babies were made, and Apps showed both girls pictures of naked people and played pornographic movies of men and women having penile/vaginal and penile/anal intercourse. Apps pulled out his penis from his pants and masturbated himself in the presence of the girls while continuing to watch the pornographic movie.

Count 15

15. After some time, Apps got off the couch and grabbed Cindy. He took her to the toilet, where he continued to masturbate himself. He ejaculated in front of her. Apps said, "That's what cum is, it goes in your vagina." Cindy began to cry. She then ran away from Apps, who appeared to her to be angry.

Sentence - Facts for sentence, 2019 Offence

16. In February 2019, Apps, by then 23 years old, arranged to take Tammy, then aged 15, out swimming and fishing. He and his then girlfriend, who faces related charges that are still before the Court for trial, picked Tammy up from her home and drove to an isolated area near Bermagui. After they parked, Apps and his then girlfriend sat with Tammy. Apps removed Tammy's clothing and had penile/vaginal sex with her while his girlfriend was present. Tammy's 16th birthday was five days later.

17. Soon after it is alleged, and I sentence on the basis that, the girlfriend also had sexual intercourse with Tammy. Tammy feared that Apps had recorded this incident on his mobile phone. Those fears were justified but no charges resulted from that act.

18. Tammy was then taken to her home. She told her grandmother what had happened. The police were called. Apps was arrested on 26 February 2019. He has been in custody since that date, as the 2009 offences breached the bail he was on in relation to the trial matters.

Charges

19. Count 6 and 7 involve sexual intercourse without consent, knowing Cindy was not consenting, while at the time Cindy was aged under 16: s 61J(1) Crimes Act 1900. Each carries a maximum penalty of 20 years. No standard non‑parole period applied as the offender was a child at the time.

20. Count 8 charged an assault and commit act of indecency on Cindy, then aged under 16; s 61M(2) Crimes Act. It carried a maximum penalty of ten years. No standard non‑parole period applied, as the offender was a child.

21. Counts 13, 14 and 15 involved acts of indecency on both Anna and Cindy, both then aged under 16; s 61O(1) Crimes Act. Each carry a maximum penalty of five years.

22. The separate matter from February 2019 involved sexual intercourse with a child under 16 while in company; s 66C(4) Crimes Act 1900. It carries a maximum penalty of 12 years and a standard non‑parole period of five years.

23. The importance of those maximum penalties, and where applicable a standard non‑parole period, is that they indicate the seriousness with which parliaments, on behalf of the community, view such offences. They provide one of many guides to the exercise of my sentencing discretion.

Objective Seriousness

New Year 2012

24. There is an absolute prohibition on any sexual activity with a child. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is serious, and is treated seriously by the courts. The guidance offered by the maximum penalties makes that clear.

25. Every sentence must be proportionate to the gravity of the crime, considered in the light of its objective circumstances. The objective seriousness of the particular offending must be determined in the light of the entirety of the facts and circumstances in question. There is no hierarchy of seriousness of kinds of sexual intercourse. Accordingly, the form of sexual intercourse does not necessarily determine objective seriousness.

26. In assessing the objective seriousness of individual matters, the act or acts done, the character of the sexual assaults and the degree of physical contact involved is of significance. In sexual intercourse matters, the degree and nature of the penetration of the child's genitalia must be considered, as must the time over which the acts occurred and whether any pain, physical hurt or harm was caused. Some degree of psychological harm is generally presumed.

27. Other matters bearing upon my assessment may include the age difference between the perpetrator and the child, the relationship of the perpetrator and the child, and the age of the child relative to the range encompassed by the offence. Where the offence occurred is also relevant. All objective factors must be synthesised along with every other relevant matter for sentence.

28. I do not need to, nor am I required by s 21A of the Crimes (Sentencing Procedure) Act 1999 to, compartmentalise these factors. Care must be and has been taken here not to aggravate a sentence by double counting relevant factors. Section 21A(2) has a list of both objective and other relevant matters that can aggravate a sentence. There is a trap in this poorly drafted provision that encourages submissions that can, if taken literally, lead to double counting of matters taken into account on sentence. I will not do so.

29. Here the offender had been trusted, as a babysitter and cousin, to take care of the children. He abused that trust, and the trust shown in him by their parents. The offences occurred in the girls' home, where they were entitled and expected to feel safe. The offender was older and much bigger than his cousins, who were respectively 11 and 13. Counts 13 and 14 occurred in the presence of both girls. Counts 13 and 14 occurred after the children had been exposed to pornography.

30. Cindy was Apps’ 11 year old cousin. When the other offences were committed against her, isolated from her sister. Her vagina was penetrated by the offender's finger. It caused her pain. She screamed as a consequence. He then performed cunnilingus on her.

31. The joint incident took some minutes and, while not as invasive of more serious examples of the offence, still were intended to and did have the effect of exposing each child to what could only be described as gross activity both on screen and by the offender himself. The indignity was compounded by the children being exposed to seeing Apps’ penis and the act of masturbation over some minutes.

32. The indignity for Cindy did not end there. She continued to be exploited by the offender. She was taken to the bathroom, where she was exposed to the offender masturbating to ejaculation.

Assessment 2019 Offence

33. Pertinent features here include that an element of the offence and one that justifies the high maximum penalty and standard non‑parole period was that it was committed in company, and that the complainant was, whilst in the car, subject to sexual intercourse with both the offender and his partner. The child was 15 and 11 months three weeks.

34. It is accepted that the complainant had indirectly asserted she was older than 17, as she had a “Tinder profile.” I am told, and accept, that to get onto that program you have to tick a box that says you're 18. I am also told, and accept, that it is notorious that that age requirement is not and cannot be enforced.

35. By his plea the offender has accepted that he had intercourse with a child under the age of 16. The penile/vaginal sex was unprotected, it went on for a period, and in circumstances where the offender showed little regard for the safety and welfare of the complainant. He was much older than the complainant.

36. I am prepared to accept the offender presumed the complainant had consented. Consent is relevant to an assessment of objective seriousness for such offences; Dawkins v R [2018] NSWCCA 278, citing Wakeling v R [2016] NSWCCA 33 and Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 at [77]. Strictly however, as Basten JA pointed out in Nelson [2016] NSWCCA 130, to describe sexual activity involving children under 16 as consensual reveals an erroneous approach, as consent is not relevant to the elements of offence itself.

37. Even though she was almost 16, the child victim was entitled to the full protection of the law. She was isolated. She was the presence of two adults, again an element of the offence that should not be double counted. Her indignity was compounded by the presence of the other person, and the photographs taken recording the other incident. Proper recognition needs to be given to the vindication of complainants in such circumstances, and the principles underpinning offences of this type. To return to Basten J in Nelson, 23:

"Persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity.

Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences".

38. The offence applies to all complainants under 16. I emphasise "all". The maximum penalty and standard non‑parole periods are relevant to all complainants under 16. The age in the offence is a red line. But it is accepted by both counsel that the very close proximity to the age of 16 is a matter I can take into account. If this offence had occurred a week later, it would not have been an offence known to law.

39. If the offence from 2019 had stood alone, it may not have justified full‑time imprisonment. Here a custodial term is justified, as content has to be given to the maximum penalty and the guidance offered by the standard non‑parole period and the objective seriousness of the offence. The offending, serious though it was, would have fallen below the middle of the range contemplated for that offence. That factor, together with the offender’s guilty plea and the subjective case justify a substantial variation from the standard non‑parole period.

Victim Impact Statement

40. Tammy did not provide a victim impact statement. The absence of a victim impact statement does not and cannot mitigate the offence; s 30E(1) Crimes (Sentencing Procedure) Act 1999. Victim impact statements were however received from each complainant in the trial matter. Cindy and Anna read them today by video link from Bega. They will be considered when I formulate the sentences.

41. Cindy told me of the effect of the offences on her life, how she still struggles and how she struggled when a young child with the consequences of what was done to her. She told me she had to take medication. She told me how dealing with the matter had interfered with her schooling and her relationship with her peers. She told me at times she felt suicidal.

42. Anna too set out the impact of the offence upon her, including eating disorders and suicidal feelings.

43. Each of the complainants indicated in careful words the impact of these offences on them; offences that they will never forget. But from what was read to me and from the way the matter was read, it is also apparent that as a consequence of surviving both the offences and the court process, each remain proud young women who are stronger for the process.

44. Each victim impact statement confirms what is known by the Court and should be known by all in the community. The effects of child sexual abuse depend on many factors, and the symptoms of such abuse similarly vary. The diversity of abuse experience means that the outcomes of child sexual abuse will also be diverse. So too will be behaviours following the experience of child sexual abuse. It is not uncommon, as here, to find such adverse outcomes, such as depression, suicidality and other behavioural impacts.

45. The sentence I impose is only one indicator of the seriousness with which the Court views the crime committed. The Court must take into account all relevant considerations. This means a direct correlation between the harm done and time served by the offender is impossible. A victim of child sexual abuse should never equate or measure her injury with the punishment actually inflicted.

Guidance

46. While every offence and every offender requires individualised treatment, Courts must in the exercise of their discretion take guidance from a number of sources. They include the maximum penalties prescribed, the decisions of other Courts, particularly those designed to give guidance, and of course the purposes of sentencing, which importantly here include the deterrence of this offender and others from committing similar crimes. They also require me to give proper recognition to the harm done to individual victims and to the community in general.

S 23 Crimes (Sentencing Procedure) Act 1999

47. An offer has been made by the present offender to give evidence at his former partner's trial. I raised the issue with both parties. There is no letter of comfort. The material provided in his statements, which were tendered, is silent on the critical issue to the prosecution at the forthcoming trial. Accordingly the offender will not be required as a witness. There are some aspects of what was offered that are self-serving, and there are details of the relationship said to exist between the two co‑offenders. In the absence of sworn evidence, I could not and will not determine those matters.

47. I am prepared to accept that the offender has prepared to facilitate the course of justice, but I am unable to find that s 23 applies to these proceedings nor am I able to quantify any sentence reduction as required by that section. Nevertheless, his willingness to give evidence is a matter going to his character and will be synthesised along with all other relevant factors.

48. At the time he committed the offences against Cindy and Anna, the offender had never before come to the notice of police or the Courts. The offence in 2019 was in breach of bail; a matter that aggravates that sentence. He made a promise to the Court, when he was granted bail, to be of good behaviour. That promise was breached.

Delay

50. There has been some delay between the commission of the offences in New Year 2012 and the matter being disposed of in this Court. Where one sentences for crimes committed after a delay, a measure of understanding and flexibility of approach is occasioned; R v Todd [1982] 2 NSWLR 517 and Mill v The Queen (1988) 166 CLR 59. Although Todd and Mill both considered lengthy delay because a person was imprisoned in another State - as I understand it, the just and principled approach outlined has not been restricted to that particulate fact situation but has more general application.

51. I accept that in some older sexual assault cases a child sex offender does not necessarily benefit from an extensive delay; R v Cattell [2019] NSWCCA 297. Each case is individual. As with many sentencing factors there is no one rule about how long delay should be taken into account. However here, for example, had this matter been dealt with in 2013, Juvenile Justice would have been involved. Greater options might have been available to the Court as to the disposition and structure of any sentence. Had the mater been dealt with earlier greater weight would have been given to the rehabilitation process given the offender’s age and immaturity at the time.

52. Offenders are entitled to have evaluated in their favour any factors deriving out of their conduct during the period which reflects to their advantage. Here, that includes Apps ability to work in the community and the absence of offending after 2012, until of course - and here the corollary applies - the advantage was lost on his commission of the 2019 offence.

Subjective case for the offender

53. The offender did not give evidence. I have the benefit of a Sentence Assessment Report, and psychologist report. What is set out in them is uncontroversial. Apps has been in custody since 26 February 2019. He suffers from asthma, and while in custody was diagnosed with diabetes. That diabetes needs to be managed. I am aware that Community Corrections will do what they can to manage the diabetes but managing such an illness in gaol is difficult. A prisoner has no direct control over their diet or their lives. His medical conditions will make his time in custody more onerous than those who are not similarly afflicted.

54. The material before me indicates that he had been in a four year relationship until it ended with his arrest in February 2019 when he was remanded in custody. On leaving school Apps was able to work and run his own business. He now suffers some social anxiety, which is entirely understandable given his position as a prisoner with a number of illnesses. The community should not underestimate the lived experience of gaol.

55. It appears he has some insight, as reflected in his plea of guilty, about the impact of this offence on Tammy. His denial regarding the offending against the other complainants does not mean he can or should be disadvantaged or punished for going for trial. He is entitled to exercise that right. But it means that while he gets the full benefit of any acquittals, he is denied the leniency sometimes given for expressions of remorse.

56. The nature and fact of multiple offending on assessments using static tools means that he is assessed a having a medium to high risk of reoffending. Dynamic factors will need to be assessed, and a file review indicates that a number exist potentially. He will need referral to a Corrective Services New South Wales psychologist and the Forensic Psychology Service when he commences serving this sentence.

57. There are other aspects of his subjective that indicate that he has pro-social supports in the community, and that he would benefit from continuing treatment while in the community. He is willing to engage with psychologists and others in child sex abuse offender treatment.

Youth

58. There is a general sentencing practice that lesser sentences can be imposed on youthful offenders than those imposed on adults who commit similar crimes. Section 6 of the Children's Criminal Procedure Act and the principles set out in it apply. The principles underpinning the practice lie in that section and in recognition of the immaturity of youth; DM [2005] NSW CCA 181, Hearne (2001) 124 A Crim R 451. I was also referred to KT v R (2008) 182 A Crim R 571. As with many sentencing principles, these principles do not all point the same way. Two themes have emerged. One involves the recognition of the community interest in the rehabilitation of an immature young person whose criminal behaviour is not well formed. The other stresses the protective function of the Court; see Simpson J, JM v R [2012] NSWCCA 83.

59. In R v Pham & Ly (1991) 55 A Crim R 128, a matter referred to by the prosecution, it was said:

“… A court must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime … must be kept … in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes…”.

60. While committed by a child on a much younger child, Apps's crimes against Cindy, in particular, were serious. They can be expected to have, and given the victim impact statement, did have serious consequences. Similarly his offences, although in lesser number and serious, against Anna.

61. Emphasis must however still be given to the offender's rehabilitation, as his crimes were committed by an immature youth, still technically a child. That said, he well knew the wrongness of his acts. While his behaviour was not as morally reprehensible as an adult, the crimes committed against Anna and Cindy mean rehabilitation must necessarily be commenced while he is in custody.

62. As I said, there was only one offence proved as against Anna. It was on its own a serious example of its type, and given custodial sentences must be imposed for the offences relating to Cindy, it too justifies a custodial sentence.

Structure of the sentences

63. I must sentence for distinct offences with different consequences to each of the three victims. I am required to impose an appropriate sentence for each offence and structure the sentences such that the overall sentence is just and appropriate to the totality of the offender's crimes. There must be some accumulation of penalty as between each victim and in the matters relating to Cindy. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending. This is particularly so where there are discrete and separate offences against discrete and separate victims; R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159.

64. The totality principle also recognises that sometimes appropriate punishment for each offence could, if simply accumulated one on the other, end up with a sentence that is unduly harsh or crushing. Measurement of the severity of a sentence is not linear. A sentences severity increases at a greater rate than the increase in the length of the sentence. For example, so far as the punitive aspect of the sentence is concerned, a sentence of two years has greater impact than a sentence of one year.

65. On release, Apps will need supervision and sex offender treatment in the community. It is unlikely he will get full access to that treatment in custody, given the waiting lists that presently apply and the advice from Corrective Services in the sentence assessment report annexure. He will require help adjusting to normal community life. With help and support and treatment, his rehabilitation is likely to be successful. His denial of the offending so far as Anna and Cindy are concerned does not preclude, as I understand it, participation in sex offender programs.

66. He is still young. He has not settled in criminal ways. The longer he spends in custody, the more likely it is he will lose contact with pro-social members of the community and the longer he will associate with those who are not pro-social. The material before me provides a basis for a finding of special circumstances. In so finding, I am mindful of a requirement that the minimum period for which he should be imprisoned must also properly reflect the gravity of the offences and the other purposes of sentencing; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704.

Submissions

67. I am indebted to Mr Fox, Crown Prosecutor, who has taken over from trial counsel Ms O'Reilly, and to Mr Williams, defence counsel, who also appeared at trial. I hope this judgment does justice to them, and we have discussed the matters to which I have just referred this morning.

Synthesis

68. I must have proper regard to the purpose of sentencing, and here, so far as the trial matters are concerned, s 6 of the Children (Criminal Proceedings) Act 1987. It is also fundamental that where there are competing factors which must be taken into account, there is no correct balance of those factors: see Veen v The Queen No 2 (1988) 64 CLR 465 at [478]. As the High Court said in Weininger v The Queen (2003) 211 CLR 629 at [23], sentencing:

“Sentencing is … a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”:

69. Mitigating factors will be given appropriate weight. They can only go so far. There is a need and obligation in sentencing to vindicate for such matters as these: to vindicate the dignity of each victim and to express the community's disapproval of the offending, and to afford such protection as can be afforded to the vulnerable against repetition, by attempting by the severity of the sentences to deter others from doing as Apps did.

70. His time in custody will, I am sure, have a deterrent impact on him. In matters involving sexual crimes against children, a significant sentencing principle is also retribution. That is the notion that reflects the community's expectation the offender will suffer punishment and that particular offences will merit severe punishment: Ryan (2001) 206 CLR 267.

Orders

71. I intend to impose an aggregate sentence. So far as the 2012 matters are concerned:

1. Count 6 Aggravated sexual assault - victim under the age of 16 years, I indicate a sentence of four years;

2. Count 7 Aggravated sexual assault - victim under the age of 16 years, I indicate a sentence of three years nine months;

3. Count 8 Indecent assault person under 16 years of age I indicate a sentence of two years;

4. Count 13 Aggravated indecency - victim under 16 & under authority, I indicate a sentence of one year;

5. Count 14 Aggravated indecency - victim under 16 & under authority, relates to Anna, I indicate a sentence of one year six months;

6. Count 15 Aggravated indecency - victim under 16 & under authority, I indicate a sentence of 1 year.

72. For the 2019 Aggravated - sexual intercourse child matter I have reduced the otherwise appropriate sentence by 25% for the utilitarian value of the guilty plea. Although it was late, the plea was in full satisfaction of the matters on the fresh indictment. The early guilty pleas scheme applies: s25D(3) Crimes (Sentencing Procedure) Act 1999. As it carries a standard non parole period I indicate a sentence of 1 year 1 month with a non parole period of 7 months.

73. Having found special circumstances and considered issues of accumulation, concurrence and totality, I am satisfied an aggregate sentence of five years and two months' imprisonment, with a non‑parole period of three years, should be fixed. The sentences should date from 26 February 2019. You will be eligible for consideration for release to parole on 25 February 2022. Your sentence expires on 25 April 2024.

**********

Decision last updated: 16 April 2020