R v At

[2020] NSWDC 954

District Court

New South Wales

Medium Neutral Citation:

R v AT [2020] NSWDC 954

Hearing dates:

Friday 21 August 2020

Date of orders:

Monday 31 August 2020

Decision date:

31 August 2020

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

Formal Sentence Orders:
 

(1) The offender is convicted on all substantive offences.

(2) For the offences involving TL: An aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 7 years with an aggregate non-parole period of 4 years and 9

(3) For offences involving KT: The offender is sentenced to a non-parole period of 5 years with parole thereafter of 4 years giving rise to an overall term of imprisonment of 9 years.

(4) Overall sentence 12 years with overall non parole period 8 years.

Catchwords:

CRIME — Child sex offences — Maintain unlawful sexual relationship with child under – max penalty life imprisonment — Aggravated sexual assault of a child under the age of 16 — Aggravated indecent assault of a person under 16 years — Three substantive offences — Four Form 1 offences — Two victims aged between 10 and 13 years old — Offender was about 42 years old — Offender was the biological father of the victims — Offender engaged in a course of sexual-offending conduct against the two victims over relatively short period of time — Offences not one-off events — Offences occurred on a remote and decrepit rural property surrounded by bushland — Offender engaged in a wide range of sexual acts with victims and used manipulation and a degree of planning to commit offences — Offences in the middle of the range of objective seriousness — VIS provided and taken into account — Both victims have suffered serious psychological sequelae — Offender has criminal record but no sex offences — Early guilty plea — Actuarial assessment of recidivism assessed as low but real risk of re-offending is not low — Prospects of rehabilitation guarded.

Legislation Cited:

Crimes Act 1900 (NSW): ss 61J(1), 61M(2), 66EA;

Crimes (Sentencing Procedure) Act 1999 (NSW): s 53A.

Cases Cited:

R v VJW (2000) 112 ACrimR 1.

Category:

Principal judgment

Parties:

Regina (The Crown)
AT (The Offender)

Representation:

Counsel:
Ms. J. Krippner (The Crown)
Ms. S. Hall (The Offender)

Solicitors:
Mr. J. Lee (The Crown)
Mr. E. Renard (The Offender)

File Number(s):

2019/00153871; 2019/00153888

Publication restriction:

Non-publication Order: There is to be nothing published which identifies, or which could identify, the complainants and the offender in this matter.

Judgment

1. HER HONOUR: The offender, who I will refer to as AT or “the offender”, is before the Court for sentence on three substantive offences of child sexual assault and four additional offences to be taken into account. There are two separate files involving two victims. I will refer to these victims by the initials KT and TL.
    

2. The first file relates to a charge contrary to s 66EA of the Crimes Act 1900 (NSW), of maintaining an unlawful sexual relationship with a child under 16. Specifically, the charge is that between 1 May 2018 and 15 January 2019 at Port Macquarie the offender maintained an unlawful relationship with KT, who was then aged between 10 and 11. The offence requires a finding that on at least two occasions over any period the offender engaged in unlawful sexual acts with or towards a child. The specific sexual acts here are summarised as follows:
    

1. Forcing the victim to perform fellatio on him;
    

2. attempting penile/vaginal intercourse;
    

3. forcing the complainant to masturbate him;
    

4. sexually touching the complainant’s vagina;
    

5. digitally penetrating the victim’s vagina;
    

6. kissing the victim with his tongue, and;
    

7. performing cunnilingus on the victim.
    

3. This offence carries a maximum penalty of Life Imprisonment.
    

4. The second file covers two separate substantive counts. Sequence 11 is a charge of aggravated indecent assault of a person under 16 years. Specifically, the charge is that between 1 November and 30 November 2017 at Hillville he indecently assaulted TL in circumstances of aggravation, namely, that she was under the age of 16 years. This is an offence contrary to s 61M(2) of the Crimes Act 1900, which carries a maximum penalty of 10 years imprisonment with a standard non-parole period of 8 years.
    

5. He asks, when sentencing him for this offence, I take into account two additional offences on a schedule to a Form 1 signed by him and exhibited in these proceedings. They are sequences 13 and 14 and are both also offences of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900.
    

6. Sequence 8 is the remaining substantive offence for sentence. It is a charge of aggravated sexual assault of a child under the age of 16. Specifically, the charge is that between 1 January 2018 and 30 November 2018 at Hillville the offender had sexual intercourse with TL without her consent, knowing that she was not consenting, in circumstances of aggravation, namely, that she was aged under 16, namely, 12 or 13. It is an offence contrary to s 61J(1) of the Crimes Act 1900 which carries the maximum penalty of 20 years imprisonment with a 10-year standard non-parole period.
    

7. He asks that, when sentencing him for this offence, I take into account two additional offences also on a Form 1 signed by him and exhibited in these proceedings. They are sequence 15, a charge of aggravated indecent assault of TL, a child under 16, also contrary to s 61M(2), and sequence 9, a further charge contrary to s 61J(1) of aggravated sexual intercourse without consent, also relating to the victim TL.
    

The Facts

8. The facts for both these groups of offences are to be found in separate agreed statements of facts tendered on these sentence proceedings. Both victims are the natural daughters of the offender. As I have said, I will identify the victim of the s 66EA offences as KT. She was aged between 10 and 11 at the time of offending. The offender met KT’s mother in 1996 and they were married for a period of time between 2000 and 2008, separating in that latter year. During the marriage, the offender had a liaison with the mother of the second victim who, as I have said, I will refer to as TL, who was born in 2005 and was aged between 12 and 13 at the time of the offences against her.
    

9. The history of the offender’s relationships with the mothers of both of these victims and their joint abilities to provide any form of reasonable care for any of their children is concerning, not just because of the level of neglect exhibited by the adults involved in the lives of these two victims but also because of what would appear to have been a real lack of action on the part of welfare authorities to protect them. The offender and KT’s mother had seven children during their relationship. The oldest three children were born in February 1999, April 2000 and October 2002, and were apparently in the care of the offender and KT’s mother until 2002 when they were placed into foster care as a result of their neglect by the offender and KT’s mother.
    

10. According to information provided by the offender to the psychologist providing a forensic psychological report for these proceedings, he had already been in a relationship with another woman from the age of 19 to 21 with whom he had two children who had been removed from that mother’s care by welfare authorities after their separation because of neglect and malnutrition, but he did not take up their care and apparently has no ongoing relationship with them.
     

11. There is also material in that forensic psychological report from the offender that KT’s mother herself had two other children before their relationship started, both of whom had also been removed by welfare authorities before their relationship commenced. After their oldest three children were removed by welfare authorities, the offender and KT’s mother then had a further two children, one born in January 2004 and another in February 2006, who were placed into foster care from birth, again, it would appear, following intervention by State authorities and because of neglect on the part of the offender and KT’s mother. They then went on and had two further children, including KT who was born in February 2008 and her elder brother who was born in February 2007. These two children apparently stayed in the care of the offender and KT’s mother until they separated in 2008.
     

12. There is no evidence about whether, and if not, why not, there was any intervention on the part of welfare authorities at the time of the birth of these two children, nor any ongoing supervision or oversight of the care being given or not being given by their parents which, given the history, would appear to have been the minimum which would have been expected. It did not happen or, if it did, no one appears to have noticed the ongoing sexual abuse of KT by her father, the offender, which in the circumstances should not have come as a surprise to the authorities. At least based on the material before me on sentence, this would appear to have been a case where, at the very least, some supervision or oversight by welfare authorities might have prevented the terrible abuse of both of these young girls. In due course, I propose to refer this sentence judgment to the appropriate governmental welfare authorities.
     

13. The offender and KT’s mother separated in 2008. She apparently went on to another partner and had two further children with that man, one born in October 2009 and the other born in March 2018. It is to be hoped that State welfare authorities are providing some supervision or oversight in relation to the level of care being provided to these two girls, given the history.
     

14. As previously stated, the offender had a liaison with TL’s mother during the course of his marriage to KT’s mother leading to the birth of TL in July 2005. He then partnered with TL’s mother formally at some point in 2013 or 2014 and in about September 2017 they moved with TL to an address in Hillville. According to the Agreed Facts, the property was rural acres surrounded by bushland. On the 10 acres were a burnt-out house, a chook pen, two sheds and multiple caravans. The offender and TL’s mother lived on the property in a caravan which had in it a double bed for the two adults, a small kitchen, a single bed for TL and some cupboards. There was a shed nearby which contained a toilet and fridge. There were chickens and dogs on the property. In 2018 they put a second caravan on the property. The shed was between the two caravans.
     

15. KT and her brother would visit the offender at this property every second weekend for access after the separation. When they were there the offender, for reasons best known to himself, would apparently leave his caravan and sleep in the second caravan with KT and her brother, all in the one bed. KT and her brother visited him every second weekend on Friday and Saturday nights on access apparently arranged between the offender and KT’s mother. I am not informed in this sentence judgment whether those arrangements were ever dealt with by way of formal orders of the Court. One would like to think not, because otherwise it may well have been the case that some appropriate authority may well have examined the circumstances in which the access was being exercised before the Court ever made any orders, whether by consent or not.
     

16. As I have said, when they stayed, they all shared the one bed, with the offender sleeping in the middle, KT on one side and her brother on the other. Every time KT visited the offender there between May 2018 and January 2019, the offender sexually assaulted her, as set out in the facts on page 2. This included forcing her to go to bed when she did not want to and yelling at her until she did. When she was there and her brother was asleep, he would wake her by touching her sexually or making her suck his penis by opening her mouth with his hands and pushing her head down on his penis. She tried to resist but he kept pushing her back up and down onto his penis and kept his hand on her head with downward pressure to prevent her from lifting up her head. He would then ejaculate into her mouth.
     

17. After this occurred, he took off her pants and underpants and attempted to have penile vaginal intercourse with her, using a lubricant on his penis. These attempts hurt the victim. He was not able to penetrate her vagina properly, but he tried to do so. She told him it was hurting and told him to stop, but he did not. He also assaulted her by kissing her with his tongue, inserting his fingers into her vagina and performing cunnilingus on her, which the victim also experienced as pain.
     

18. Her brother was present every time these sexual assaults occurred over this 8-month period and on one occasion her brother, who was only one year older than her, witnessed the sexual assault occurring.
     

19. In addition to these events in the caravan at Hillville, there was an occasion when KT’s mother dropped her off to an office where the offender and his then partner, TL’s mother, were working as cleaners. Whilst his partner was upstairs cleaning, the offender went downstairs to put rubbish in the bins and the victim went with him. After he had put rubbish in the bins, he unzipped his pants and grabbed the victim’s hand, pulling her towards him so that his penis touched her belly. He forced her hand onto his penis and forced her to masturbate him until he ejaculated onto the floor. They then went upstairs.
     

20. The victim told her mother what had happened when she picked her up later in the day but, according to the victim, her mother was just very disappointed and upset but, despite this upset and disappointment, it would not appear that KT’s mother reported this to authorities or at that stage did anything to stop it.
     

21. KT told TL about some of these incidents when she was staying at Hillville and TL told her that she had also been forced to have sex with the offender.
     

22. In mid-January 2019 KT told her mother about some of the incidents and thereafter did not attend the offender’s home until about 15 January 2019. It would not appear that her complaints were brought to the notice of authorities until late April that year when she was finally interviewed by police.
     

23. She eventually made a statement to police about these events on 26 April 2019. The details of the complaint she made during her interview are to be found on pages 3 and 4 of the Agreed Facts in relation to KT and cover all of the acts, 1 to 7, which are particularised in the charge. Perhaps the saddest part of her complaint to police, it seems to me, in light of the fact that she was only a young girl, then only aged 11, was that she asked the police, “Do you think I am pregnant?” and further, “Can I have kids when I grow up?” These comments are sad and are some indication of the significant harm suffered by children when they are sexually abused by adults, let alone by their parent.
     

24. All of the same background is relevant to the offender’s involvement with TL. The facts for those charges are also before the Court by way of Agreed Facts. TL’s mother was in a relationship with a man from 1992 to about 2012. There were three children also part of that household, including two older children, one born in 1994 and the other in 1996. TL was also part of that household, raised initially as the natural child of her mother and this man. KT’s parents and TL’s parents met and became friends in about 2004. As I stated previously, it appears that the offender had had an affair with TL’s mother during the course of his marriage to KT’s mother and TL was born in July 2005. She was raised in the household with the older two children with the male in the family raising her as his natural daughter. He did not discover until 2013 that in fact she was the offender’s natural daughter born as a result of his affair with TL’s mother. He moved out with the older two children in December 2013 and left TL with her mother.
     

25. In 2013 to 2014, as I have said, the offender and TL’s mother recommenced their relationship, living first in a caravan park in Taree with TL and then moving to the address on acres at Hillville in about September 2017, and still the welfare authorities did not become involved, even though KT and her brother were visiting every second weekend and TL was living in the caravan on that property in the circumstances which I have already set out.
     

26. The first substantive offence of aggravated indecent assault involving TL occurred in November 2017 when she was about 12. She came home from school one afternoon. Her mother used to leave for work around 6pm and would leave her with the offender. Her mother was out at the time this offence occurred, at work. TL was lying on her bed doing homework and the offender got up from his bed and laid down on the bed with her. She was lying on her back near the wall and was wearing her uniform. The offender started to ask her about her homework and began trying to help. She became frustrated because she did not understand him. He hugged her and then took her books, paper and pencil case away. She crossed her arms over her chest and tried to resist him, but he pulled her arms apart, moved her arms off her chest and touched her chest with his hands on the outside of her clothing. He then took his hands from her upper chest area and put them on her breasts for about 4 seconds. He moved his hands slowly down her body, sliding them onto her stomach, upper thighs and then back up to her chest. He did this over and over. She stayed still but asked him to stop and said it was not right. He did not speak. She was 12 at the time. This is the first substantive offence involving TL.
     

27. About three days later, TL’s mother went outside to look after the animals, leaving the offender and TL inside the caravan. TL was lying down because it was hot outside. The offender told her to come over to his bed and she did. She sat on the edge of the bed, and he told her to sit on his lap. She sat sideways so that her side was facing him. He put his right arm onto her left shoulder and put his hand up the front of her shirt and onto her right breast inside her crop top. She pushed his hands off and ran outside.
     

28. She ran up to her mother and hugged her. She was crying and told her mother what had happened. Her mother approached the offender and screamed and yelled at him. The offender got in his car and drove off. This made TL frightened that he was going to attempt suicide, which is apparently something he had either done, or threatened to do, previously. He came back about 10 to 15 minutes later and told her not to tell her mother what had happened because he gets into trouble. He called TL derogatory names and asked why she had told her mother. She said because what he was doing was not right and was inappropriate, to which he replied, “Oh well, fine then,” and, according to the facts, stormed off inside.
     

29. That is the first of the Form 1 offences to be taken into account when sentencing for sequence 11. It is probably more serious than the substantive offence, but it would appear that the Crown has elected to have it dealt with as a Form 1 offence. The reason it is more serious is because there was skin-on-skin contact, which is different to the substantive offence which was touching outside the clothing.
     

30. About a week later TL woke up in bed and the offender was lying on the bed with her, spooning her, with his arm around her waist. Her mother was not home. When she woke up, she did so with a start and jumped. He said, “It’s okay. It’s just me.” She rolled onto her back because her arm was hurting. He lay on top of her. He was wearing boxer shorts but no shirt. She could feel him on top of her. He was a large man, and she could feel his chest and stomach pressing into her body as he lay on top of her. That is the second Form 1 offence and, whilst it is another offence of aggravated indecent assault which he admits committing as such by asking that it be taken into account, it is an offence in its own terms of relatively low objective criminality in the circumstances.
     

8. The second substantive offence occurred a few days before TL started year 7. Her mother had gone to work at her cleaning job. TL was trying to get things ready for school and went outside to get a drink when the offender grabbed her elbow and stopped her leaving. She pulled away from him and went to get a drink. She then came back to the caravan and saw that he was inside and had removed all his clothes. She asked him what he was doing, and he said, “Well, come in. I’ll show you.” At that stage she only had one foot inside the caravan, but he grabbed her wrist and pulled her inside forcefully. He said that he wanted her to do something for him and pulled her hands towards his penis, trying to force her to touch his penis. She said, “No,” and that it was not okay. He said it was fine and that she should just do it. She continued to say, “No,” and used all her strength to resist him. This is the first Form 1 offence connected to the substantive offence of aggravated sexual intercourse. It is an offence of aggravated indecent assault.
    

9. The offender then said, “Well, if you're not going to do that, lie on the bed,” and pushed her onto his bed so that she was lying on her back. He said, “You know what I’m going to do, don't you?” She said, “No and I don't want to know.” He pulled off her pants and undies and spread her legs apart. He positioned his body in between her legs and proceeded to have penile/vaginal sexual intercourse with her. She told him to stop many times and was hitting him. He eventually stopped and she got dressed and went outside. He came to the door of the caravan, and she told him to leave her alone and that she did not want anything from him. He told her that he wanted her and that he loved her more than he loved her mother. TL was angry and walked up the driveway, where her neighbour saw her and came over. She had been crying and her face was red. He asked if she was okay, and she said she was.
    

10. When her mother came home that afternoon, TL told her that the offender had forced her to have sex with him. Her mother asked him about that. He denied it and her mother accused TL of lying. The offender continued to have penile/vaginal sexual intercourse with TL throughout 2018 on multiple occasions. According to the Agreed Facts, it occurred so often that she has difficulty being able to recall another incident specifically. The sexual assaults always occurred when her mother was not around, at work, on a Tuesday or a Thursday when the offender was looking after her at home. This offence is the second substantive offence involving TL, the offence of sexual intercourse without consent of a person aged under 16.
     

11. The last occasion on which the offender assaulted TL was in about September 2018 when she was in year 7 and was 13 years old. She was inside the caravan on the bed wearing her school uniform. The offender was on his bed. He got up, grabbed her wrist and pulled her over to the bed and hugged her. She did not want him to hug her and went back to her own bed and continued to try to do an assignment. Her mother came inside for a while, before leaving for her work. About 20 minutes after she left, the offender was lying on his bed and told TL to come to him. He told her he had something to tell her. She went over and stood near his bed. He stood up and pushed her onto the bed. He climbed onto the bed and lay on top of her, facing her and hugging her. She tried to push him off, but he was too heavy. She tried to slide from underneath but could not do so. After a couple of minutes, he sat up and smiled at her. He put his hands on her pants at her upper thigh level. She said, “No,” and tried to hold her pants up but he was too strong for her and pulled her pants and undies off. He took off his shorts and was naked. He had hold of her legs, so she could not move. He then had penile/vaginal intercourse with her. As this was continuing, he was holding her upper arms tightly and this hurt her arms. She told him to stop and screamed at him, but he laughed and continued. This intercourse lasted for about 5 to 10 minutes, and he stood up and put his boxer shorts back on. She also got up and went outside. She was angry. The offender was not wearing a condom during this intercourse.
     

12. TL’s mother came home later that evening and TL was on the bed crying. When her mother asked if she was okay, she told her that the offender had raped her the night before, but her mother did not believe her and walked away. After that incident, TL adopted the habit of going to work with her mother at night to avoid the offender. She told her mother on various occasions about the sexual offending, but her mother did not believe her and did nothing about it.
     

13. TL went to stay with her older sister and her partner in December 2018 during the school holidays and was supposed to return home in mid-January 2019 before school went back. In late January 2019 she told her sister that she did not want to go back because she was scared of the offender and that he was violent. She shortly afterwards disclosed the sexual offending to her sister and her sister’s partner. She told them that he raped her and that he did not use condoms. Her sister took her to a doctor for a pregnancy test, which was negative. She has, according to the facts, been residing with her sister since then and did not return to the care of the offender or her mother.
     

14. Police became involved apparently in February 2019 and interviewed TL on two occasions, once in early March and the other in May. She disclosed all of the incidents during these interviews which are the subject matter of the charges involving her. At around the same time, in April 2019 police also interviewed the other victim KT.
     

15. On 16 May 2019 the offender was arrested by police and taken to Forster police station. He was interviewed in relation to the offences involving both victims. In relation to KT, he confirmed the details about living arrangements in the caravan and some other surrounding circumstances and initially made no comment about the allegations of sexual assault but ultimately denied that he had ever had sex with KT or made her touch his penis. In relation to TL, he also confirmed some of the surrounding circumstances but made no comment in response to the allegations made by her.
     

16. When police inspected the property at Hillville on 16 May, they discovered piles of rubbish and a decrepit state. There was a mattress in the second caravan on which there were no sheets. Almost certainly, it seems to me, that if any welfare authorities had attended that property in Hillville, simply on the basis of the circumstances in which one child was living fulltime and the other two children were living every second weekend, they would have had some considerable concern about the overall welfare of any child either living there permanently or visiting frequently. As I have said, given the history of the lack of parenting skills in the past by the offender and at least two of his partners, it is very difficult to understand why these checks were never made.
     

17. These offences are, of course, all very serious. In relation to the offence involving KT, the maximum penalty of life imprisonment makes that very obvious. Other factors informing the objective seriousness of this particular offence involving KT are the following:
     

1. She is the biological daughter of the accused. That increases the objective seriousness because, of all people in the world, children are entitled to trust their parents and to expect their parents will protect them from harm. It is a significant breach of trust which the offender owed to his daughter, that he would protect her and not use her for his own base sexual needs.
    

2. Further, she was under his authority as his daughter and in his care when she was visiting. That is not a statutory circumstance of aggravation but operates as a matter of factual aggravation.
    

3. Her age. She was only 10 or 11. She was only young. The objective seriousness of offences of this type is increased the younger the age of the child. In this case, KT was not especially young and it seems to me that her age is not an aggravating factor. It is just a factor to take into account in determining the objective criminality.
    

4. The length of time of the offending. This offence occurred over a period of 8 months. That is neither particularly lengthy nor particularly short and it certainly is not a period of a significant number of years of maintaining a sexual relationship with a child that is sometimes seen in similar cases.
    

5. The fact that she was there on access visits is an issue which, in my view, somewhat elevates the objective seriousness. This was an agreement between the offender and KT’s mother over which she had no control.
    

6. She was with the offender in a remote area on 10 acres, surrounded by bushland with nowhere to run, nowhere to hide and, on the face of it, except for her half-sister TL, no one to complain to, even if that would have been of any use.
    

7. The conditions in which it occurred, at least according to the description, were squalid.
    

8. The offence occurred in the presence of her only slightly older brother who was only himself 11 or 12 and who was awake for at least one of the offences. That increases the level of humiliation and the overall objective seriousness, in my view.
    

9. The sexual acts comprising the offence covered almost the whole gamut of sexual behaviour that is capable of forming part of this offence, including fellatio in which the offender ejaculated into her mouth.
    

10. There was some force used by him in the fellatio and also his attempts at penile/vaginal penetration which caused her pain.
     

41. The impact on the victim here has been serious, which I take into account. She prepared and read in court a Victim Impact Statement (“VIS”). I listened to that and have taken it into account. I am conscious that a VIS does not constitute evidence in the traditional sense and cannot be used by me to give rise to an aggravating circumstance or to give rise to a finding that the injuries suffered by a victim are at such level that they amount to an aggravating circumstance. I do accept, however, in general terms and on the basis of the knowledge, well known to the Court, that any form of an ongoing sexual abuse by a father on his child in the ways that have occurred here would give rise to a seriously adverse impact. The Court is very aware of that, and I take that into account.
     

42. In this particular case, I do accept from the VIS, and demonstrated by the victim’s actions when she read out her statement, that she has indeed been seriously affected. It seems to me it was a very sad moment in court when KT took off her hat to show her head where there are obviously large sections of missing hair. I accept that part of the impact on her has been that from time to time she has pulled out her hair as a result of distress she is suffering. That was obvious and was a very sad and patently obvious consequence to her observed by me in court when she read out her victim impact statement.
     

43. She has also suffered serious psychological sequelae. It is to be hoped that sooner rather than later she will receive help to deal with these matters, in particular, that the adults who remain in her life, including her mother, will eventually assist her to overcome this terrible crime.
     

44. There is some dispute between counsel appearing for the offender and the Crown about whether or not in these circumstances the objective seriousness is mid-range or high mid-range. Not much, it seems to me, is to be achieved by what may otherwise be seen as a semantic disagreement. It seems to me that with that combination of factors, it is at least in the middle of the range for offences capable of being charged under this section. It is not towards the top, largely because it was for a relatively short period of time and the actions which constitute the sexual acts, whilst terrible, do not have some of the hallmarks of cases which are capable of being charged under this section. As I have said, it seems to me to be about the middle of the range in terms of objective seriousness.
     

45. For both this and the sentence involving TL, I accept that there should be an element of general deterrence taken into account when determining the appropriate sentence. With respect, I adopt the dicta of Sheller J in the decision of R v VJW (2000) 112 ACrimR 1 at p 20:

“The maximum penalties the legislature has set for child sexual abuse offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim.”

46. That is the case for both of these victims, and for that reason, general deterrence must play a relatively significant part in the sentences set for both of these matters so that the community understands that behaving in this way towards children will give rise to a relatively lengthy period of fulltime custody.
     

47. For this and the other offence, the offender has pleaded guilty and done so, as I understand it, at the earliest opportunity. There is a significant utilitarian value reflected in the pleas of guilty and the time at which they were entered. There has been no need for a trial to be run and, in particular, no need for either of these two victims to give evidence at trial. In accordance with authority, I would discount the appropriate sentences by 25% to reflect the utilitarian value.
     

48. I now turn to a consideration of the objective seriousness of the offending involving TL. Sequence 7, in my view, is towards the lower end of the range in terms of objective seriousness. He was touching her in a sexual way, but it was on the outside of her clothing. One of the form 1 offences, as I have already said, would appear to be objectively more serious, touching her on her breast on a skin-to-skin basis. It must be taken into account in a meaningful way when assessing the appropriate sentence for sequence 11 but, as I have said, the Crown elected to accept the arguably more serious offence as a form 1 offence. The second form 1 offence seems to me of very low objective criminality and would not, because of that, increase the appropriate sentence otherwise.
     

49. Many of the same factors affecting an assessment of the objective criminality for the offences involving KT are the same here. TL is the natural daughter of the offender and all of those same considerations involving the significant breach of trust involved apply. As I have said, it is a significant breach of the trust which the offender owed to both his daughters where they were entitled to expect to be protected and not to be used by him for his own base sexual needs. Further for TL she was also under his authority, not itself being a statutory circumstance of aggravation. She was also young. Her age for her is also a factor but she was 12 or 13. It is not, in her case either, a factor which to any great extent informs the overall objective criminality.
     

50. Again, for her, the offending for both groups of offences took place over a period of about 8 months between May 2018 and January 2019. Neither of the substantive offences was a one-off isolated act. They both involved a course of conduct on the part of the offender. The offending against her took place in her own home, for what it was worth, but the same factor applies to her, it was in a remote area on 10 acres, surrounded by bushland with nowhere to run, nowhere to hide and absolutely no one to whom she might make a complaint, given that when she did complain to her mother she was not believed.
     

51. Further, the offender’s offending against TL involved a degree of manipulation and planning. He waited until her mother was either out of the caravan or away from home at work. In addition, he was angry with her for telling her mother, but it was also clear that he did not have much to lose, and TL must have realised that in due course because, as I have said, her mother did not believe her. I have also made a finding and I repeat that this was not isolated behaviour but was an ongoing course of conduct.
     

52. Similarly, as for KT, TL also has prepared and read out in court a VIS. I accept that she has been frightened and suffered serious psychological sequelae as a result of this ongoing sexual assault of her by her father. It manifests itself from time to time in being frightened of older men or becoming scared when relatively minor chastisement occurs in the home that she now shares with her sister and her sister’s partner. She has been required to change schools as a result of that, which always has an adverse impact on children. It is not surprising to note in her VIS that she indicates the adverse impact these offences have had on her relationship with her mother. I note at the end of her VIS she says the following:

“I want him to know that even though he did this, it’s not going to change me forever. I will overcome this.”

53. It is to be hoped that she carries through with that sentiment and that, with the assistance of authorities who have already let her down in her young life, she will ultimately come to view herself as a survivor of child sexual abuse and not a victim. She would appear to be a smart, resilient young woman and, as I have said, I hope in due course she will see herself as a survivor, not a victim, and go on to lead a productive and healthy life. The impact on her, albeit serious, does not amount to an aggravating factor.
     

54. Sequence 8 is also a very serious offence in its own terms. It seems to me that this offence of aggravated sexual intercourse without consent is of itself at least in the middle of the range in terms of objective seriousness. Further, it is not an isolated act and is put before the Court as representative of ongoing sexual intercourse that occurred over the 8-month period frequently and usually two nights a week when TL’s mother was absent. Even without those generalities, one of the Form 1 offences is itself a further offence of aggravated sexual intercourse without consent and, arguably, again, factually more serious than the substantive offence to which it is attached.
     

55. The same findings in relation to an assessment of objective criminality apply as for those to which I have already referred when dealing with the objective criminality of sequence 11. As I have said, it seems to me that that offence is at the mid-range in terms of objective seriousness, at the least.
     

56. For both substantive offences, there is a standard non-parole period. As I have said, the latter offence is about the mid-range in terms of objective seriousness. The former offence, sequence 11, is below. In any event, for both of them, the pleas of guilty mean that the standard non-parole period does not apply strictly.
     

Subjective Case of the Offender

57. I now turn to the subjective case presented by the offender on his sentence. It was before the Court largely by way of a forensic psychological report undertaken by Kris North and some of the Agreed Facts. He is now 44 and was 42 or so at the time of offending. I have already gone through the history of his relationships, and I do not propose to take that any further.
     

58. I accept that his own father left the family when he was very young, and his mother moved into an abusive relationship. He and his mother moved a lot throughout his childhood and adolescence. He was physically and verbally abused by his stepfather when he was younger than 10. His mother died when he was about 35 and it would appear that he has some unresolved grief issues surrounding that death. He seems to have about 15 siblings or half-siblings but is not close to any of them. He attended 14 different schools in his childhood and that, of course, adversely impacted his education and ability to form social relationships.
     

57. He did not have steady employment until he was about 22. He has had two jobs which he kept for about 3 years. The longest he has been in any employment was 4 years. Otherwise, he has had a number of different relatively low-level jobs.
     

58. He regularly used cannabis and alcohol in earlier times but not over the preceding 10 years. He started to address these substance issues in 2007/2008, apparently on the advice of welfare authorities who it seems were involved at some stage or other. There is no connection between his offending behaviour and substance abuse.
     

59. He had some learning difficulties and may well have had symptoms which would have allowed for a diagnosis of ADHD or autism spectrum disorder but there is no specific diagnosis of this before the Court. He has apparently been suffering from depressive symptoms since 2018 as a result of ongoing health issues. He developed multiple blood clots and a black mass in his lungs and could not work for 6 months between July and December 2018. He was diagnosed with a rare blood disease. He developed low mood, lethargy, emotional lability, social withdrawal and apparently experienced suicidal ideation. This was apparently the mental state that he was in at the time he committed the offences. It is to be noted, however, that if in fact these symptoms existed, they did so at the very time that he was frequently and regularly sexually assaulting both of his daughters and his lethargy and low mood did not appear to have prevented him from doing so, particularly TL in relation to whom he had frequent penile/vaginal sexual intercourse.
     

60. He admitted to the psychologist that he experienced sexual arousal and gratification during the offending period, that he wanted to stop but could not. He said that his sexual behaviour towards his daughters became a habit and that he was not thinking clearly.
     

61. After he went into custody, he did develop some symptoms of depression and anxiety. He had some adverse events in custody and moved into protective custody. He prefers that and appears to have coped better since being in protective custody, at least in relation to his symptoms of depression and anxiety.
     

62. He has expressed to the psychologist a motivation to engage in treatment and stated that he did not want to re-offend. I accept that he is genuine in his expressions in this regard.
     

63. He has been assessed as to his likelihood of sexual re-offending using two well-known tools, the Static-99R and the Stable 2007. They are actuarial assessment tools. These two tests indicate him as being a low risk for sexual recidivism. Whilst I accept the results as set out on p 8 of the report, I do have some concerns about some of the factors described as “protective factors”. In particular, one of those is said to be a history of long-term relationships. Whilst it is the case that he would appear to have had three long-term relationships, producing quite a number of children, it is the very fact that those long-term relationships existed and have given rise to many children which has allowed him to continue to offend in the past, particularly as the mothers of at least these two victims do not appear to have been either able or willing to intervene to protect the victims. Further, whilst he now expresses empathy for the two victims, which I accept provides some support as a protective factor for future behaviour, he showed no such empathy to either of them over the period of time when he continued to sexually abuse them.
     

64. He has a criminal record but not one of any relevance to the offences for which I sentence him here. There is a very old entry of stealing dealt with without conviction in 1994. There is a driving offence involving a suspended licence in 2001. Then a charge of having a neglected child or young person in his care in 2002, which no doubt is consistent with the social history already recited. Then there are further driving and licence matters. It is a relatively minor criminal history. He has never been to gaol before. There is no history of sexual offending on his record and no offences even vaguely approaching the seriousness of the matters before me.
     

65. His criminal record exists and, therefore, he is not entitled to any leniency on the basis of prior good character, but his criminal history does not aggravate the offending behaviour.
     

66. I accept that his actuarial risk of re-offending is low, but I do not accept in fact that his real risk of sexual re-offending is low. Whilst I am not in a position to quantify the risk, nonetheless, it seems to me that some of the dynamic factors surrounding him would elevate the risk over and above the actuarial assessment. There is a connection between his depression and the offences but, as I have said earlier, it appears hard to reconcile low mood and lethargy with the way in which he was offending constantly against both of these victims over an eight-month period. I do accept, however, from the psychological report that he qualifies as suffering from paedophilic disorder, limited to incest because of his deviant sexual interest, namely, his interest in his own daughters. He needs to engage in offence-specific treatment to address these risks and his prospects of rehabilitation will be improved, it seems to me, if he does so as soon as possible in custody and that he is supervised closely in relation to these issues on his eventual release on parole. I accept Ms North’s recommendations in relation to ideal treatment set out on page 11 of her report.
     

67. His prospects of rehabilitation are somewhat guarded because of the ongoing nature of the offending. However, he is now almost 45. He will be much older when he is released. He will not be permitted to have any contact with children generally albeit, on the evidence, he does not pose any risks to children generally but rather to his own daughters. Presumably he will not be permitted to have contact either with his own daughters and hopefully not either to any granddaughters that might then be born between now and the time of his release. In the circumstances, however, whilst his prospects of rehabilitation must be guarded, the opportunities for re-offending in those circumstances are very limited.
     

68. I accept his expressions of remorse and contrition, given as they are now. There is perhaps some insight exhibited by him in his conversation with the psychologist. I accept that his history given to the psychologist and his contrition and remorse are genuine.
     

69. There are some special circumstances, namely, that this is his first time in prison and that he will need a lengthy time on supervision albeit that the length of the terms of imprisonment themselves will probably mean that the statutory 25% on parole is more or less appropriate. Nonetheless, there will also be some partial accumulation which I take into account as special circumstances. I propose to adopt, as much as possible, an overall non-parole period of about two-thirds to give effect to these special circumstances.
     

The Sentences

72. I then turn to what the appropriate sentences are, and I deal first with the offences involving TL. Whilst sequence 4 is an offence at the lower end of the range for these offences, nonetheless, there are all of those other factors to which I have referred, including the fact that she is his natural daughter and the fact that there are two Form 1 offences, one of which is of some substance to take into account. The starting point in my view is 4 years, less 25%, giving rise to 3 years with a 2-year non-parole period. That will be the indicative sentence for sequence 11; 3 years with a 2-year non-parole period.
     

73. Sequence 8, after taking into account the Form 1 and assessing the objective criminality and all of the relevant subjective circumstances, particularly the Form 1 offence which on its face would appear to be more serious than the substantive offence, it seems to me that the starting point is 8 years, reducing that by 2 years for the 25% discount, gives rise to a 6-year term of imprisonment with 4 year non-parole period. So, the indicative sentence for sequence 8 is 6 years with a non-parole period of 4 years.
     

74. If accumulated on each other, this would give rise to 9 years with a 6-year standard non-parole period. That seems to me somewhat too much. I propose to deal with these two offences by an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 7 years with a non-parole period of 4 years and 9 months.
     

75. For the offence involving KT, the s 66EA offence, it seems to me that the starting point in the circumstances should be 12 years, less 25% discount, giving rise to 9 years with a non-parole period of 6 years. There should be some partial accumulation of these two sentences, that is, the aggravate sentence and the one involving KT.
     

76. If they were both accumulated on the other, that would give rise to 16 years with a non-parole period of 10 years and 9 months. It seems to me that is somewhat too high. I will be partially accumulating these two sentences to give rise to an overall sentence of 12 years with a non-parole period of 8 years.
     

77. The mathematics do not allow me to give effect to this whilst applying the sentences to which I have already referred because there is no individual sentence which has a parole period of four years. Whilst indicating that the appropriate sentence for the s 66EA offence is 9 years with a 6-year non-parole period, I will in fact be sentencing for that offence for 9 years with a 5-year non-parole period with some partial accumulation, purely to give effect to what I have found is the appropriate overall sentence.
     

Formal Sentence Orders

78. Therefore, I make the following formal orders, having taken into account these matters:
     

1. The offender is convicted on all substantive offences.
    

2. For the offences involving TL: There will be an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 7 years commencing 16 May 2019 and expiring 15 May 2026, with an aggregate non-parole period of 4 years and 9 months commencing 16 May 2019, and expiring 15 February 2024.

1. The indicative sentences are as follows:
   Sequence 11: 3 years with a non-parole period of 2 years.
   Sequence 8: 6 years with a non-parole period of 4 years.

2. Form 1 offences taken into account.
    

3. For offences involving KT: The offender is sentenced to a non-parole period of 5 years commencing 16 May 2022 and expiring 15 May 2027, with parole thereafter of 4 years commencing 16 May 2027 and expiring 15 May 2031, giving rise to an overall term of imprisonment of 9 years commencing 16 May 2022, expiring 15 May 2031.
    

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Decision last updated: 22 November 2022