R v Bako

Case •

[2024] NSWDC 630

•

18 October 2024

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Bako [2024] NSWDC 630
Hearing dates: 23 August 2024
Decision date: 18 October 2024
Jurisdiction:Criminal
Before: King SC DCJ
Decision:

Indicative sentences – see attached table.

Aggregate sentence:

Special circumstances found – first time in custody, likely to find it harder in custody because of nature of offences & likely place of custody etc & stress caused to family.

Sentenced to an aggregate term of imprisonment for 10 years with a non-parole period of 5 years to commence on 22 March 2024 and to expire on 21 March 2029, upon which date he will become eligible for release to parole, and a balance of term of 5 years to expire on 21 March 2034.

Catchwords:

CRIME – Sentencing – 20 counts of sexual offending by tennis coach against 3 victims – IT, aged 15-17; VM, aged 12-13; DZ, aged 8-15 – multiple, like offending occurring over 5-year period including: assault with act of indecency – indecent assault person under 16 – adult maintain unlawful relationship with child (DZ) - victims under authority - “under authority” as an element of offence where particularised as such, otherwise a statutory aggravating circumstance - breaches of trust – uncharged acts - objective seriousness of offences – subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Nolan v R [2024] NSWCCA 140

Category:Sentence
Parties: Rex
Bako, John
Representation: Counsel:
Crown: Ms K Nightingale, ODPP
Defence: Mr G Scragg
Solicitors:
Crown: Ms C Deibe, ODPP
Defence: Mr C Kenny, Mr M Wafai, Ly Lawyers
File Number(s): 2022/00265845
Publication restriction: NPO in respect of the names of the complainants or anything that might tend to identify them.

JUDGMENT

  1. HIS HONOUR: The matter of John Bako.

  2. Mr Bako appears for sentence after trial, the trial having commenced on 26 February 2024 and having completed with verdicts on 22 March 2024. The indictment contained 23 counts. Counts 1, 3, 4 and 6 were all in relation to IT and contrary to s 61L of the Crimes Act 1900, being offences of assault with an act of indecency. The maximum penalty provided for those offences is five years in each case, and there is no standard non-parole period. There are a further two offences in relation to IT, Counts 2 and 5, being offences contrary to s 61N(2) of the Crimes Act in respect of which the maximum penalty provided is 18 months, and there is no relevant standard non-parole period.

  3. There are nine offences pursuant to s 61M(2) of the Crimes Act concerning VM, being Counts 7, 8, 9, 10, 14, 15, 16, 17 and 18. Each of those offences carries a maximum penalty of 10 years and has a relevant standard non-parole period of eight years. Also, in relation to VM there were a further four offences, Counts 11, 12, 13 and 19, contrary to s 61O(1) of the Crimes Act, in respect of which the maximum penalty is five years.

  4. In addition, there was a count in respect of DZ contrary to s 66EA(1) of the Crimes Act, being Count 20 on the indictment, an offence of adult maintaining an unlawful relationship with a child. The particulars for that offence were effectively in relation to three offences contained as alternative counts on the indictment. Those are Counts 21, 22 and 23. Count 21 and Count 23 were offences contrary to s 61M(1) being acts of indecency in circumstances of aggravation, that is, the victim being under 16 years of age at the time, and Count 22, also being an aggravated act of indecency, the aggravation being that the victim was under the accused’s authority. As the jury convicted him of Counts 1 to 20 on the indictment, they did not need to turn to the alternatives to Count 20. The maximum penalty for an offence contrary to s 66EA(1) is life imprisonment, and there is no relevant standard non‑parole period.

THE OFFENCES

  1. In relation to IT, as to Counts 1 to 5, the offences occurred in the period between 30 November 2009 and 29 November 2011, and concerned two separate incidents, two offences arising from the first incident and three from the second. There was a third incident which related only to Count 6, and that was an offence committed in the period between 30 November 2010 and 24 November 2012.

  2. In respect of VM, Counts 7 and 8 occurred in the period between 1 January 2011 and 1 August 2011. Counts 9 and 10 were in the period between 1 March 2011 and 1 August 2011. Counts 11, 12, 13, 14, 15, 16, 17, 18 and 19 were in the period between 8 June 2011 and 7 June 2012. All of the counts were committed across five separate incidents.

  3. At the commencement of the offending period, from 30 November 2009 to 27 September 2014, the offender was almost 38 years of age. He is now some 52 years of age and will turn 53 in approximately one and a‑half months.

  4. All of the offending occurred over approximately a five-year period.

  5. The facts are as follows:

IT – Date of Birth: November 1994

  1. IT’s family and the Bako family saw each other regularly.

First Incident – Family Event

1. Ms IT felt comfortable talking to the offender about teenage issues like boys and body image. When she was 16 years of age, she was at a function at a relative’s house. At some point during the afternoon, she was in the spare room with the offender and spoke to him about wanting to look after her body and keep slim and trim. She had recently recovered from an eating disorder and had ongoing self-esteem and body image issues.

2. The offender suggested that she do abdominal exercises, which he had also recommended to other tennis students her age that he coached. In order to assess her abdominals, he asked her to lay down on the ground, to lift her top and pull down her pants to expose her abdomen. Ms IT pulled her pants down enough to see her vulva region. The offender kneeled next to her. He asked her to tense her abdominals and used his thumb and pointer finger to apply pressure to her stomach area all the way down her body. Ms IT said:

“He wanted me to tense my abdominals, so I was trying to be as strong as possible in the situation. Like, just - he - he worked his way down, so I guess the last place that he applied these fingers were on either side of my body in between basically where the thighs end, and the vulva begins.”

While this was happening, the offender said repeatedly, “Are you offended?” Ms IT said, “Oh, no,” quietly, but felt shocked and speechless but did not want to say anything in such a compromising position. He touched her abdominal area for about five minutes. (Count 1 - Assault with an act of indecency - s 61L Crimes Act; s 80AF Crimes Act 1900)

3. The offender wanted Ms IT to conduct the same assessment on him. The offender then lay on the floor and pulled down his shorts and underpants to the top of his thighs. His penis was exposed. He asked Ms IT to assess his abdominals and instructed her to do what he did to her and press with her fingers. The offender guided her fingers down his body until Ms IT’s fingers were on either side of his genitals. (Count 2 - Commit an act of indecency toward person 16 years or over - s 61N(2) Crimes Act)

Second Incident - Offender’s Residence

4. A few months later, Ms IT and her parents and her younger brother and sister visited the offender and his family at their Roselands home. Her father, V and H went to get charcoal chicken from a local shop. Ms IT stayed home with the offender, her brother and sister and the offender’s daughters. The children were busy playing, and Ms IT sat on the lounge in the living room with the offender.

5. Ms IT spoke to the offender about sex education topics, as she was inquisitive about the functioning of the male genitalia. The offender said that the penis gets erect. Ms IT asked if a penis grew while that happened, and the offender said it did. After some further conversation, the offender suggested they go into his bedroom to do an abdominal exercise. Ms IT laid down on the floor next to the bed and pulled down her pants, exposing her upper thigh and vulva. Ms IT said:

“He asked me to tense my abdominals again, as he had done previously, and he - and he applied pressure to my abdominal area all the way down to my inner thigh. Again, just covering my vulva.”

At some point, the kids came in, and the offender got up and took them back to the sunroom. The offender returned and continued to touch Ms IT with his fingers. When he finished, Ms IT pulled her pants up. (Count 3 - Assault with act of indecency - s 61L Crimes Act; s 80AF Crimes Act)

6. The offender then lay down on the ground and pulled his pants down to his thighs. His penis was exposed. Ms IT touched his abdominal area with her fingers. The offender touched his penis while Ms IT touched his abdominal area down to a point where her fingers were either side of the top of the offender’s penis. He then grabbed Ms IT’s wrist and guided it to his penis. He said, “Do you want to make it grow?” She said, “No,” and pulled her hand away. She then said, “You do it.” (Count 4 - Assault with act of indecency - s 61L Crimes Act; s 80AF Crimes Act)

7. The offender pulled his pants up and got off the floor. He asked Ms IT to follow him to the laundry that had a second toilet. Once in the laundry, the offender pulled down his pants. Ms IT stood in the open doorway. The offender started to masturbate over the toilet while standing. He had one hand on his penis and one hand on the wall. He looked at Ms IT while he masturbated. He then ejaculated into the toilet. When he finished, he cleaned his penis with toilet paper and then went back into the loungeroom and waited for the others to come back with the chicken. (Count 5 - Commit an act of indecency towards person 16 years or over - s 61N(2) Crimes Act; s 80AF Crimes Act)

Tennis Lesson

8. Ms IT had just turned 17 and received a tennis lesson from the offender. The offender and Ms IT entered the shed, and the offender asked to see her abdominals. The offender asked her to lift her top and pull down her pants. Ms IT followed his directions, and her pants were pulled down to her mid-thigh area. The offender stared at her exposed body, particularly her genital area, and he touched her with his index finger and thumb down her stomach and focused on the lower part of her body between the inner thigh and vulva. (Count 6 - Assault with act of indecency - s 61L Crimes Act; s 80AF Crimes Act)

VM – Date of Birth: June 1998

9. The offender is the husband of a relative of VM's. The families were close and saw each other regularly.

10. In 2011, Ms VM was aged 12 and in Year 7. She was interested in learning to play tennis. Her father asked the offender, who was a tennis coach at the time, to train her.

11. Ms VM commenced tennis lessons with the offender at the tennis courts in Young Street, Penshurst. This was around April/May 2011. Ms VM had weekly lessons from the offender for about six months.

First Incident

12. During a lesson in 2011, about one month after she had started lessons, the offender told Ms VM that they would do some stretching in the shed. This was around April/May 2011, when she was still 12 years of age. The offender and Ms VM entered the shed, and the offender closed the door.

13. The offender asked Ms VM to lay down on the ground, because this is what professional tennis players do. The offender told Ms VM to lift her T‑shirt, exposing her sports bra underneath. The offender said, “Lift up your bra, as well.” Ms VM did so, exposing her breasts. The offender placed his hands under her exposed breasts and squeezed and pinched her breasts for about 30 seconds to a minute. The pressure applied by the offender hurt. (Count 7 - Indecent assault person under 16 - s 61M(2) Crimes Act; s 80AF Crimes Act)

14. The offender then told Ms VM to pull her shorts and underwear down, and she complied with this direction. Ms VM’s genitals were exposed. The offender grabbed and pinched the sides of Ms VM’s genitalia. The offender squeezed and pinched the outside of her labia for about 30 seconds to a minute. (Count 8 - Indecent assault person under 16 - s 61M(2) Crimes Act; s 80AF Crimes Act)

15. The offender stopped and told her to pull up her clothes. They were in the shed for about five or ten minutes. Then they went back out to the tennis court and continued the lesson.

16. Ms VM thought it was weird at the time but did not say anything to anyone. She feared the offender. During a tennis lesson, the offender had told her that he was good at karate and that, during a martial arts session, he had broken a girl’s arm.

Second Incident In The Shed

17. Ms VM recalls an incident a few weeks to a month after her thirteenth birthday. As with the first incident, Ms VM had a tennis lesson with the offender. During the lesson, the offender pinched and squeezed Ms VM’s breasts and genital area. She said it was “the exact same”:

“He told me, ‘We’re going to go into the shed,’ and that we were going to do these stretches. He told me to do the exact same. He instructed me to pull up my shirt and my bra, and he did the same squeezing and pinching under my breasts, and he did the same on my genitals. He told me to pull down my pants - or my shorts - and my underwear, and then he told me - and then he did the squeezing and pinching motion again. Every time that it was just me and him in that shed, it was the exact same pinching and squeezing of my breasts and then on my - my genitals, as well.”

(Count 9 - Indecent assault person under 16 - s 61M(2); s 80AF Crimes Act and Count 10 - Indecent assault person under 16 - s 61M(2) Crimes Act and s 80AF of the Crimes Act).

Further Similar Incidents In The Shed

18. The same indecent assaults occurred every fortnight in the shed for another four or five times. The offender pinched and squeezed Ms VM’s breasts and genital area. Ms VM’s father was always sitting outside the shed on a chair.

Incident With Another Student

19. At one lesson, Ms VM arrived at the tennis court, and the offender had another student, being a young male of approximately the same age as Ms VM, who she had never met before. There was some overlap in their lessons.

20. The offender said to both students that they would do some stretching in the shed together. They went into the shed, and the offender told Ms VM to lie down and to pull up her top and pull down her pants. He told the boy to do the grabbing and squeezing motions to her. The boy grabbed Ms VM's breasts and genitals and squeezed them as instructed by the offender. (Counts 11 and 12 - Incite aggravated indecency - s 61O1 of the Crimes Act, s 80AF of the Crimes Act.)

21. The offender then told the boy to lie down and pull down his pants. The offender told Ms VM to squeeze and pinch the boy just above his scrotum and under his penis and Ms VM did as she was instructed. (Count 13 - Incite aggravated indecency - s 61O(1) of the Crimes Act, s 80AF of the Crimes Act.)

First Incident During A Boxing Lesson

22. Towards the end of the six months, in about August, the offender organised with Ms VM's parents for her to do boxing lessons with him to increase her strength.

23. One Saturday morning, the offender picked Ms VM up and they went to his mother's house. The offender's mother was at home at the time. The offender and Ms VM went to the garage where there was a punching bag hanging from the ceiling. The offender and Ms VM used the punching bag for about 20 minutes. The offender then took Ms VM inside the house and into his old bedroom, telling her that they would do some stretching.

24. The offender told Ms VM to lie on the floor and lift her top and bra and to lower her pants and underwear. Ms VM did as she was instructed. The offender pinched her breasts and her genitals as he had on other occasions. (Count 14 and 15 - Indecent assault, person under 16 - s 61M(2), s 80AF of the Crimes Act.)

25. The offender then laid on the floor and pulled off his shorts and underpants. He told Ms VM to grab under his penis towards the top of his scrotum, and squeeze and pinch. He told her to touch the tip of his penis. He said: "You can feel the difference of the skin." The offender grabbed her finger and moved it around the tip of his penis. (Count 16 - Indecent assault, person under 16 - s 61M(2) of the Crimes Act and s 80AF of the Crimes Act.)

26. The offender took Ms VM home.

Second Incident During A Boxing Lesson

27. Ms VM had one more boxing lesson with the offender about two weeks later. After about 30 minutes boxing in the garage, they went into his bedroom. Ms VM lay on the floor, lifted her top and pulled down her shorts and underpants. The offender squeezed her breasts and genitals. (Counts 17 and 18 - Indecent assault, person under 16 - s 61M(2) of the Crimes Act, s 80AF of the Crimes Act.)

28. The offender then lay on the floor, pulled down his shorts and underpants and Ms VM squeezed under his penis and above his scrotum. (Count 19 - incite aggravated indecency - s 61O(1), s 80AF.)

29. Ms VM finished lessons at the end of 2011 or the beginning of 2012 when she was 13.

DZ - Date of Birth: September 1998

(Count 20 - persistent sexual abuse of a child - S 66EA(1))

30. DZ started playing tennis when he was about 10 years of age. He started one-on-one tennis lessons with the offender. DZ's mother met the offender through a friend and knew the offender's wife.

31. The offender coached DZ once a week at a tennis court behind a house in Young Street in Beverly Hills. His mother would mostly take him to the lessons and stay. She would sit on a chair next to the shed on the side of the court and watch the tennis lesson.

The First Incident

32. Within the first year of his tennis lessons, after warming up and stretching his arms and legs on the court, the offender took DZ into the shed on the basis that they would do a breathing exercise.

33. The offender laid down and told DZ to put his hands together and put pressure on the offender's chest down to his stomach area, first on top of his shirt and then the offender raised his shirt and told DZ to, again, press his hands from his chest area down his body.  DZ then laid down and the offender did the same to him.

34. The offender and DZ did these breathing exercises in the shed weekly for a couple of weeks.

Second Incident

35. After a couple of weeks, they went into the shed. After doing the same applications of pressure to the offender's chest and abdomen, the offender said there was an extra bit to the exercise: "the secret thing that the professionals use." The offender told DZ not to tell anyone. The offender laid down and pulled down his pants, exposing his penis. The offender said that there were more pressure points around the bladder area and around his penis and testicles. The offender used two fingers to press on the bladder area and either side of the penis in three positions: above the penis, under the penis and then under the testicles. The offender then instructed DZ to do this, and DZ complied with his direction.

36. After this, DZ laid down and the offender put his hands on his chest and worked down to his stomach. He asked DZ to pull up his top and expose his bare chest. The offender repeated the touching and pressure on his chest area. The offender then told DZ to pull his pants down, which he did. His penis was exposed. The offender used his two fingers to press on DZ's bladder area and around his penis.

Weekly Incidents In The Shed

37. This continued every week during DZ's lessons. At some stage, about two years later, they moved to a different court, in Arcadia Street, Penshurst. There was also a shed there, and the touching continued.

38. At the time, DZ did not think anything of it as the offender made it sound like it was normal. DZ asked the offender if his mother knew about it. The offender said: "Of course, she knows."

39. On one occasion, when they were training in Arcadia Street and DZ was in high school, DZ had lost a competition on the weekend. During his Monday lesson, the offender was angry and frustrated. They went into the shed for exercises and the offender flicked DZ's penis out of the way instead of asking DZ to move it.

40. On another occasion, in the shed, after DZ had lost a competition, the offender stroked his penis with his index finger and thumb and said: "Remember this next time you lose."

41. DZ continued weekly tennis lessons with the offender until he was 19. The incidents in the shed continued on a weekly basis until he stopped training with the offender due to work commitments.

Incident During A Boxing Lesson

42. When DZ was 17, the offender suggested that he do boxing training with him to build his stamina and learn to defend himself. DZ went a couple of times for boxing training to the offender's house at Roselands, where he had a punching bag in the garage.

43. After some time of using the boxing bag, the offender closed the garage door and said that they should do the exercises. The offender laid down and made DZ touch him first and then the offender touched him, “like every other time.” This occurred on at least three occasions.

OBJECTIVE SERIOUSNESS

  1. As to the seriousness of the offences in relation to the three victims, the offending occurred over the period that has been previously referred to in relation to each individual victim, and there were multiple occasions of like offending in respect of each. Much of the offending fell into what might be referred to as the low end of the spectrum of objective seriousness. It is of course more objectively serious where the offence includes not simply the exposure of the genital area but touching of the breasts and/or the genitals, whether the victim was male or female, and whether it was the victim’s or the offender’s genitalia. The age of the individual victim at the time of the offending and where it falls into an age range as provided by the legislation are also relevant factors to be taken into account, as is the age disparity between the offender and each of the individual victims at any time during the course of the offending.

  2. Some of the offences, such as Counts 11, 12 and 13, involve as an element of the offence that they were “under authority”. “Under authority” is also a statutory aggravating circumstance in relation to every other offence but is not taken into account by the nature of the individual charge that does not have “under authority” as an element.

  3. In relation to DZ and Count 20, “under authority” is taken into account in respect of the offending particularised which is also the subject of the alternative Count 22. The aggravating circumstance in respect of the other particularised offences specified as the foundation for Count 20 and their respective alternates, Counts 21 and 23 is specified as “under the age of 16”. In relation to DZ, the offending the foundation of Count 20 was not simply limited to the three particular offences relied on by the Crown in specifying what was relevant to Count 20, as the Crown is not required to particularise every particular offence that may have occurred relevant to s 66EA, although it is recognised in recent decisions of the NSW Court of Criminal Appeal that it would be appropriate if the prosecution did so. Nolan v R [2024] NSWCCA 140

  4. In relation to each victim during the offending, the offender was their tennis coach. They were children, although their ages varied, and he relied on his authority as their coach to enable him to commit the offences of which he has been found guilty. Also relevant, in effect, although not pleaded as an element of any offence, is the concept of a breach of trust, which is generally closely linked to offences involving a breach of authority. Each of the victims trusted him as their tennis coach, and it was because he was able to rely on that trust and his authority as their tennis coach that he was enabled to carry out this offending over the five-year period in relation to the three separate victims.

  5. In short, “breach of authority/trust” is relevant to each of the offences against each of the victims whether it is referred to as an element of the offence or is only relevant as a statutory aggravating circumstance provided by s21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999.

  6. In the case of each victim the evidence was that there were offences on other occasions which are not the subject of charges. He cannot be sentenced for those offences which were not the subject of charges, although they are relevant to an assessment of the overall seriousness of the offending against any individual victim in that they indicate that the charged offences did not occur in isolation.

  7. Victim Impact Statements have been provided from IT and VM. Those Victim Impact Statements eloquently set out the unfortunately expected adverse effects that offending of this nature against children has.

  8. Ms IT indicates that it was really hard to talk about these matters; she feels traumatised and has trust issues. She has apparently had years of psychotherapy to help address her problems and to help her feel more confident around people. She has high social anxiety and has had for as long as she can now remember. The psychotherapy has assisted her but not repaired her. She refers to her relationship with her parents as with her mum being “hot and cold,” and with her father becoming distant when he remarried. It is difficult to determine if her current relationship with her parents is a consequence of the offending, her maturing, or changes in the family circumstances. She refers to herself in relation to her family relationship as having been, in effect, the offender's “perfect target.”

  9. She refers to herself having been low in confidence and feeling incredibly vulnerable and being groomed while she was mentally suffering. She perceives this as having had an effect on her adult life, becoming involved in emotionally abusive relationships and having difficulty trusting, particularly men. She says that not only did it affect her, but it affected her relationship with her father once she revealed what had been happening. This apparently compromised his level of support due to his closeness to the offender and the offender's family, straining their relationship.

  10. Ms VM indicates that there is not a single day that goes by where she does not think about what he did. She wishes to crawl out of her own body and into another one that has not been touched or violated. She said that she became, as a result, unmotivated, developed self-esteem issues that have affected her work and she closed herself off to her family and friends and has in the past been terrified of being alone with men. She states:

"John stole my childhood, my innocence and my identity from me, things I once enjoyed are now forever tainted by what happened to me. I never stepped foot on a tennis court again… This trauma is something that will never go away or be forgotten and something that I will have to carry with me for the rest of my life."

  1. It has become apparent, particularly since the Royal Commission into child abuse, that offending of this nature has serious effects on child victims, and that it does affect them for many years, if not for the entirety of their lives, and it may well be that psychotherapy will assist each of them, but in my view it is unlikely to enable them to return to the state they would have been in psychologically if these offences had never occurred. They are likely to continue to be affected for at least a significant period of time into the future, if not for the balance of their life.

  2. There is no Victim Impact Statement from DZ, however I note that when first approached by police to see if he could be of any assistance to them in relation to these matters, he quickly denied that there had been any offending against him. That was, on his evidence, a lie, and it was subsequent to having lied to the police that he determined that it was appropriate for him to come forward, and he did so. I have no doubt that the lie he told to the police was influenced very much by his gross embarrassment about what had happened and what in fact he had, in effect, not objected to in circumstances where the offending commenced when he was a child, and he continued to be trained by the offender up to the age of 19.

  3. The fact that there is no Victim Impact Statement does not mean that I cannot consider the likely effects on DZ as these effects are now well known to the courts, and I have no doubt, even in the absence of a Victim Impact Statement, that he has been seriously affected and will continue to be seriously affected by this offending against him.

  4. As I have said, many of the individual offences can be referred to as falling towards the lower end of the scale of objective seriousness, although some are more serious. They are of course more serious when there is actual touching of the genital area by the accused of a victim, or having a victim touch his penis, or when he deliberately masturbated to ejaculation in the presence of the victim or encouraged the participation of others such as the unknown boy to touch VM's genitals and her to touch the boy’s genitals, or directing/guiding a victim to touch his genitals. That increases the objective seriousness in each case, but my view in relation to the individual offences is that there is no particular offence where the offending rises above or can be referred to as towards the mid-range of objective seriousness.

  5. It is normally expected that judges will analyse each individual offence as to where it might fall in terms of objective seriousness. In my view that is not necessary in the case where there are a number of offences against the same victim, as long as in determining the sentence, the difference in objective seriousness of the individual offences is taken into account by the sentence imposed, which in itself can indicate the degree to which a judge feels that one offence is more or less serious than another.

SUBJECTIVE MATTERS

  1. Before the Court is a Sentencing Assessment Report prepared at the Court's request, together with a New South Wales Department of Corrective Services Presentence Consultation. The Sentencing Assessment Report is under the hand of Victoria Rushton, dated 23 May 2024. The Presentence Consultation Psychology Report is under the hand of Katie Stephens, dated 8 May 2024. In addition, tendered on sentence by the Crown is the offender’s criminal history which indicates that he has no previous record of offending of any nature. In addition, the Crown has tendered the New South Wales Department of Corrective Services Conviction, Sentences and Appeals Report which is dated up to 13 May 2024. There is no more relevant or updated report, but in relation to this matter he went into custody at the conclusion of the trial and has been in custody since, and there is no evidence of any breach of prison regulations. Indeed, the Sentencing Assessment Report indicates that he has caused no management issues.

  2. The Sentence Assessment Report indicates that he was residing with his wife and his two teenage daughters prior to the trial; that he enjoys the ongoing support of his wife, and I will presume his children, as they have visited him while he has been in custody.

  3. He is said to have the benefit of a large prosocial network of friends, which I accept from the significant number of references that have been tendered on his behalf; and that he has a consistent employment history since completing the Year 12 Higher School Certificate. He has apparently worked in the finance sector for over 20 years, and at the time of arrest was employed as an insurance underwriter as well as running his tennis coaching business, which he ceased in 2017.

  4. I note, however, that this was a defended trial. There can be no discount for a plea in those circumstances. Mr Bako, essentially having been charged with all the offences, elected to bury his head in the sand and contest everything. The Sentence Assessment Report indicates that he continues to maintain his innocence, despite having now heard all the evidence and the cross-examination of the victims and being aware that on that evidence the jury returned verdicts of guilty.

  5. He also indicated to the sentence assessment officer that it was his intention to appeal the conviction. He was assessed as being in the average risk range of reoffending, using the Static-99 risk assessment tool. As to the insight into the impact of his offending, his only insight was into the emotional and financial impact of his legal predicament on himself, his wife and family.

  6. Following being charged in 2022, he has apparently engaged in obtaining the services of a psychologist. That was not to assist him in relation to the likelihood of any reoffending or understanding himself any better, but to assist him with managing the stress caused by the allegations made against him and the fact, obviously, that he was to stand trial in respect of them. That indicates that there is no remorse or contrition, and his ongoing denial of the offences will, of course, limit the efficacy of any offence-targeted intervention.

  7. I accept, however, considering his history, that he is in fact a low risk of reoffending, although I note that Community Corrections has overwritten the risk of reoffending and stated it as “medium” because of his average risk score and Static-99R. However, in my view, there is in fact a low risk of reoffending considering his history and, at least for many of these offences, the relatively low objective seriousness of them.

  8. In addition, the Court has the benefit of a report from Ann-Marie De Santa Brigida, psychologist, dated 17 August 2024, and a significant number of referees. I note that, at trial, Lisa Cachia was called to give evidence, the offender being a coach of her daughter, and she indicated that she had no complaints about the offender and saw him as being very professional. There was also evidence at trial from Natalie Pasalich, who also had no complaints and described him as being a fantastic coach.

  9. In addition, there are a number of references - I will leave out the dates - from: Lazarus Madentzoglou, a friend of 45 years; Andrea Nicholson, a friend for 38 years; Effie Skalkos; a friend of 40 years; Emmanuel Katheklakis, a person the offender has helped during a difficult time in that person’s life; the offender’s wife, Helen; the offender’s daughter, Jessica; and a further written reference from Natalie Pasalich; a reference from Nick Kamberos, a friend of 30 years; and the offender’s daughter, Nicola; from Father Leslie Kostoglou; Stella Stathakis, a friend of 25 years; Silvia Kazamia, who has known the offender for his entire life; and Vicki Alexakis, a relative of one of the complainants.

  10. Subjective matters have been drawn from that material. I have already referred to his criminal history and his unblemished record while in custody, at least up to the date of the report. It is evident that he has, in the past, coached a Special Olympics squad, being a squad of tennis players suffering from a disability. Those who have provided references continue to hold the offender in high esteem despite their knowledge of his offending.

  11. I note that, according to the assessment of his risk of reoffending, he would not be eligible in custody for the serious offender’s program to deal with sex offending. I note that he was referred to as being the victim of childhood physical abuse from his father, and that he has been diagnosed with PTSD; and that, in relation to what he informed Ms De Santa Brigida of, his malingering and deception scales demonstrated that his replies and participation in the assessment were genuine. She assessed him as being a low range for sexual recidivism and a low range in relation to general recidivism. He was apparently not diagnosed with any paraphilic traits, disorders or conditions. His PTSD arose from his childhood physical abuse and domestic violence.

  12. I have already indicated that I accept that he is, in my view, unlikely to commit further offences of this nature, and he has no history of committing offences of any nature. In my view, despite his denial and continuing denial of the offences, and lack of remorse and contrition, I am of the view that there is, in fact, a low prospect of him committing further offences and a good prospect of him being rehabilitated.

  13. I note that his family will suffer because of the main breadwinner being absent, and that the mortgage repayments are not exactly small, and will no doubt create problems for his wife and children, to the extent that it may be necessary to sell the property. He was, apparently, when he first went into custody, denied some visits from his daughters, although that changed.

  14. As I said very early in these reasons, he is now approximately one and a half months short of turning 53. Although I have found that there is no evidence of remorse or contrition, in my view, that is simply because the offender does not wish to acknowledge what he has done, as it would significantly affect his own personal image of himself and he has since the trial, just as he did before the trial commenced, simply buried his head in the sand.

  15. I will in due course proceed by way of providing an indicative sentence in relation to each of the individual offences. The variation of those sentences will indicate the extent to which I believe one offence is more objectively serious than another, taking into account the variations I have already referred to.

  16. The repealed s 25AA of the Crimes (Sentencing Procedure) Act applies, and not s 21B, which applies to historical child sexual offences for proceedings commenced on or after 18 October 2022. Section 25AA applies to VM and DZ only, as VM was over the age of 16 at the time of the offending relating to her, when one takes into account the period covered. In respect of VM, I apply the sentencing patterns at the time of the offending.

  17. I have taken all of those matters into account and, when determining the aggregate sentence, I will take into account the concept of totality, as referred to in the case law. I note that s 25AA(3) - provides that the Court must take into account what is currently known as to the effects of sexual offending against children, as now known.

  18. As I propose to provide indicative sentences and an aggregate sentence, I have prepared a schedule of the individual offences with relevant information. I note the first column refers to the particular incident, as according to the individual complainant; the second column in the table of charges refers to the JusticeLink sequence number which is, of course, only relevant to my associate, who has to make entries in relation to each and every matter. There is then under “Charge” a short summary of the nature of the charge, such as: assault with an act of indecency, or commit act of indecency with person over 16 years, together with a very short, and not meant to be definitive, description of the incident or the offending conduct. That was meant simply as a shorthand reminder to me, to assist me when determining the indicative sentences rather than having to repeatedly trawl back through the evidence in order to find individual matters, there being 20 counts to be taken into account.

  19. The next column provides the section number of the Crimes Act as at the time of the offending that is relevant to the charge. The next column refers to the offence date as referred to in the individual count, that is, the range of dates during which it is said that the offending occurred, such as, for instance, Count 1, 30 November 2009 to 29 November 2011. The next column refers to the victim by name and their age as to date of birth and their age accordingly within the period of time covered by the individual range of dates and charge/s. The next column provides for the maximum penalty which was available under the legislation at the time, and the next column states the standard non-parole period, where there is one that applies. The last column will contain the indicative sentence.

  1. So, there is no need for the parties to make detailed notes of this because I will hand down a schedule at the conclusion of these reasons. Mr Kenny, we will forward it by email to you. I note the schedule will be appended to my reasons, and as I have already indicated, the names of the victims will be anonymised in those reasons and in the schedule. The ages of the individual victims have been determined according to the age range and the charge, or where there is specific evidence in the trial as to their age at the time within the date range covered by the charge - the actual age.

  2. In relation to Count 20, being in relation to DZ (adult maintaining an unlawful relationship with a child - s 66EA) I have included under the charge each of the three alternate counts as they were; in effect, the particulars as supplied in relation to the charge which would have come into play had the jury not found him guilty in respect of Count 20. And I note in respect of each of those three alternate counts the ages of DZ were between eight and 12 years of age, whereas the s 66EA count covered a period from eight years of age to 15 years of age.

  3. All right, I will now indicate the individual charge or count number and section, the victim and the indicative sentence.

  • Count 1 - assault with an act of indecency, s 61L, IT, six months’ imprisonment.

  • Count 2 - commit an act of indecency with person 16 years or over 61N(2), IT, nine months’ imprisonment.

  • Count 3 - assault with an act of indecency s 61L, IT, six months’ imprisonment.

  • Count 4 - assault with an act of indecency s 61L, IT, 18 months’ imprisonment.

  • Count 5 - commit an act of indecency towards person 16 years or over s 61N(2), IT, one year of imprisonment.

  • Count 6 - assault and commit act of indecency s 61L, IT, six months’ imprisonment.

  • Count 7 - indecent assault person under 16 years of age s 61N(2), VM, ten months’ imprisonment with an indicative non-parole period of five months.

  • Count 8 - indecent assault person under 16 years of age s 61N(2), VM, 18 months’ imprisonment with an indicative non-parole period of nine months.

  • Count 9 - indecent assault person under 16 years of age s 61N(2), VM, ten months’ imprisonment with an indicative non-parole period of five months.

  • Count 10 - indecent assault person under 16 years of age, s 61N(2), VM, 18 months’ imprisonment with an indicative non-parole period of nine months.

  • Count 11 - incite aggravated indecency on victim under 16 and under authority of offender, s 61O(1), VM, 18 months’ imprisonment.

  • Count 12 - incite aggravated indecency on victim under 16 and under authority of offender, s 61O(1), VM, 18 months’ imprisonment.

  • Count 13 - incite aggravated indecency on victim under 16 and under authority, s 61O(1), VM, 18 months’ imprisonment.

  • Count 14 - indecent assault person under 16 years of age, s 61M(2), VM, 10 months’ imprisonment with an indicative non-parole period of five months.

  • Count 15 - indecent assault person under 16 years of age, s 61M(2), VM, 18 months’ imprisonment with an indicative non-parole period of nine months.

  • Count 16 - indecent assault person under 16 years of age, s 61M(2), VM, two years’ imprisonment with an indicative non-parole period of one year.

  • Count 17 - indecent assault person under 16 years of age, s 61M(2), VM, 18 months’ imprisonment with an indicative non-parole period of nine months.

  • Count 18 - indecent assault person under 16 years of age, s 61M(2), VM, 18 months’ imprisonment with an indicative non-parole period of nine months.

  • Count 19 - incite aggravated indecency in victim under 16 and under authority of the offender, s 61O(1), VM, two years’ imprisonment.

  • Count 20 - adult maintain unlawful relationship with child, s 66EA(1), DZ, six years’ ‘imprisonment with an indicative non-parole period of three years.

  1. Having considered all of those matters and taking into account all of the matters that I have previously referred to, including the need for some concurrency and the concept of totality, I will indicate that it is clear from those indicative sentences where I have expressed an indicative non-parole period as required, that I have made the indicative non-parole period half, that is 50% of the indicative term, having found special circumstances.

  2. This is the offender’s first time in custody. In my view, he is likely to find it difficult, considering the nature of the charges, and if not already in protective custody, he is likely to find himself there in the long term in the prison system. Offenders with offending of this nature recorded against them are generally harshly dealt with by other prisoners.

  3. I also take into account the stress that will be caused to his family by his incarceration as relevant to reducing the individual indicative non-parole period and the aggregate non-parole period below the statutory relationship of 75%. Accordingly, the aggregate sentence is one of 10 years with a non-parole period of five years. The sentence will commence from the day he went into custody on 22 March 2024. I note that he will be first eligible for parole on 21 March 2029, and the full term of the sentence will expire on 21 March 2034.

  4. I note, Mr Bako, that your release at the earliest possible time, being on the expiry of the expressed non-parole period on 21 March 2029, will depend upon what the authorities make of you while in custody.

  5. It is essential to ensure that you are released at the earliest possible time that you convince them that you are someone who abides by the prison regulations at all times and is willing to accept such treatment and assistance as can be provided through the prison system. If you do that, it is likely you will be released at the earliest opportunity. If you do not, they may well delay your release beyond that point. Now, is there anything anyone would like to raise?

DEIBE: There’s nothing from the Crown, your Honour.

HIS HONOUR: All right.

KENNY: Nothing from the Defence, your Honour.

HIS HONOUR: All right. Then in due course, Mr Kenny, you will get a copy of that schedule. We will send it to you in the non-anonymised form. But eventually it will be attached to my reasons with appropriate anonymization.

KENNY: Thank you, your Honour.

BAKO TABLE OF CHARGES (68886, docx)

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Amendments

19 February 2025 - Adjustments made to text to fully comply with the NPO in force regarding the names of the complainants or anything that might tend to identify them.

20 February 2025 - Further adjustment re NPO.

Decision last updated: 20 February 2025

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Nolan v The King [2024] NSWCCA 140