R v Baldwin-Davies

[2023] NSWDC 595

District Court

New South Wales

Medium Neutral Citation:

R v Baldwin-Davies [2023] NSWDC 595

Hearing dates:

20 September 2023, 9 November 2023

Decision date:

20 November 2023

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted on each count. Special circumstances found – 1st time in custody, need for longer period of supervised parole to assist him with rehabilitation.

Indicative sentences: [25% discount on each count]

SEQ 006: 1 year, 6 months

SEQ 007: 5 years with NPP of 3 years, 3 months

SEQ 008: 6 years with NPP of 4 years, 6 months

SEQ 009: 5 years with NPP of 3 years, 3 months

SEQ 010: 6 years with NPP of 4 years, 6 months

SEQ 011: 4 years

SEQ 012: 6 years with NPP of 4 years, 6 months

SEQ 013: 3 years

SEQ 014: 3 years

SEQ 015: 3 years

Aggregate sentence:

Sentenced to a term of imprisonment of 12 years with a NPP of 7 years and 9 months to commence on 4 January 2022 and to expire on 3 October 2029, and a balance of term of 4 years and 3 months to commence on 4 October 2029 and expire on 3 January 2034.

Catchwords:

CRIMINAL – sentence - use child aged 14 or above and under 16 years for production of child abuse material - aggravated sexual intercourse with a child of/above 14 years and under 16 years of age - intentionally sexually touch a child ten years of age and less than 16 years of age – victim diagnosed with ASD & significant intellectual limitations, slightly above the range of mild intellectual disability – objective seriousness - continuous sequence of offences, “opportunistic & predatory”, a breach of trust, taking place within the home of the victim’s aunt – subjective matters

Legislation Cited:

CrimesAct 1900

Crimes (High Risk Offenders) Act 2006

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen [2013] HCA 37

R v Gavel [2014] NSWCCA 56

Category:

Sentence

Parties:

Rex
Baldwin-Davies, Luke

Representation:

Counsel:
Defence: Mr I Fraser

Solicitors:
Crown: Mr S Morrison, Ms E Anderson - ODPP
Defence: Mr M Lindeman - Lindeman Lawyers P/L

File Number(s):

2022/000002800

JUDGMENT

1. HIS HONOUR: Luke Baldwin-Davies appears for sentence in respect of a total of ten offences. Those are three offences of use child aged 14 or above and under 16 years for production of child abuse material contrary to s 91G(2)(a) of the CrimesAct 1900. In respect of each of those offences, there is a maximum penalty of ten years’ imprisonment and no standard non-parole period.

2. There are five counts of aggravated sexual intercourse with a child of or above 14 years and under 16 years of age contrary to s 66C(4). In respect of each of those offences, a maximum term of imprisonment of 12 years is provided and there is a relevant standard non‑parole period of five years.

3. There are two offences of intentionally sexually touch a child ten years of age and less than 16 years of age contrary to s 66DB(a) of the Crimes Act. The maximum penalty in respect of each of those offences is ten years and there is no relevant standard non-parole period.

4. The date of the offences was 3 January 2022. The offender was arrested on 4 January 2022 and has been in custody since that time and only in relation to these offences. He entered a plea of guilty on 23 March 2023 at the Port Macquarie Local Court and is accordingly entitled to a discount for the utility of the plea alone of 25% in respect of each offence. The facts were agreed and are as follows.

Background

1. The offender was born on 13 November 1984, and at the time of the offences he was 37 years of age. He is now 39 years of age.

2. LT, the victim, was born on 21 March 2007. In 2013, the victim was diagnosed with autism spectrum disorder (ASD). In accordance with the diagnostic statistical manual, it was recommended that she be provided with Level 1 support. On 21 March 2021, the victim turned 14 years of age, and she was approximately 14 years and nine months at the time of each of the offences.

3. The offender had been in a domestic relationship with BJ during which they lived at premises at Lake Cathie. The offender met and spent some time with the members of BJ’s family including the victim and the victim’s mother. The victim’s mother was a cousin and a close friend of BJ. The victim regarded BJ as her aunt. The offender and BJ ceased living together around the end of 2019 and the beginning of 2020 but remained friends. The offender later moved in to live in a granny flat at the rear of BJ’s home at Lake Cathie. The offender continued to have contact with the victim as he attended family functions with BJ. While he was living in the granny flat, the victim visited BJ and stayed with her for periods of time of up to a week.

4. At the time of the offences, the offender was aware of the victim’s age, that she had behavioural problems at school and home and that she had been diagnosed with autism spectrum disorder. In July and August 2021, the victim was further assessed by a psychologist who on 28 August 2021 reported in summary,

“… that the victim was diagnosed at a young age with complex comorbid developmental disorders of ASD Level 1, attention deficit hyperactivity disorder and oppositional defiance disorder”.

The victim’s comorbid disorder significantly impacted her functioning, and cognitive assessment shows she has significant intellectual limitations, although slightly above the range of mild intellectual disability. A functional assessment showed that she has significant functional limitations across three areas (conceptual, social and practical) and that she will require support as if she has an intellectual disability.

5. The psychologist made a number of recommendations about providing the victim with support, noting:

“…due to concerns noted around her self-care and health and safety on the adaptive assessment, it is also recommended that supports include strengthening (the victim’s) daily life skills in terms of protective behaviours due to her age, social deficits and restricted fluid reasoning capacity.”

The Events of 2/3 January 2022

6. On 2 January 2022, the victim was staying with BJ at her house. The victim had her own room in the house. On the evening of 2 January 2022, the victim attended a family function with BJ and the offender. They returned to the Lake Cathie premises at about 12.30am on 3 January and all three remained awake and continued talking for some time. During this time, the victim consumed a premixed drink that included gin in the presence of the offender.

7. The victim said that at one point, the offender and BJ were smoking mushrooms. The victim said that during the later sexual offending, the offender was drunk and high. Later, BJ went to her bedroom. At this time, the victim had a conversation with the offender. Following that conversation, the victim went to the offender’s flat and while she was there, the offender engaged in sexual misconduct with her as follows; some of the sexual misconduct was recorded on the offender’s mobile telephone.

Sequence 7. Aggravated sexual intercourse with a child 14 years of age or over, and under 16 years.

8. At one point while the offender and the victim were inside the granny flat, the offender directed the victim to take her clothes off. The victim did so and lay on the offender’s bed. While she was laying down on the bed naked, the offender spread her legs apart and digitally penetrated her vagina with one or more of his fingers.

Sequences 8 and 13. Aggravated sexual intercourse with a child 14 years or over and under 16 years, and use child aged 14 or above and under 16 for the production of child abuse material.

9. The offender sat on the end of the bed and directed the victim to sit up. In an audio recording made on the offender’s mobile telephone, at about 3.51am on 3 January, the victim can be heard saying “Just don’t put the flash on,” and the offender replies, “Suck my dick right now.”

10. A video recording commenced on the offender’s phone at about 4.02am recording the offender laying on his bed while the victim was performing fellatio upon him. The victim attempted to push the offender’s phone away, but he continued recording the activity. The victim asked the offender to stop but he replied, “Be a good girl” and placed his hand on the back of the victim’s head as she fellated him.

11. During the recording, the offender also told the victim to say, “Fuck you, Dad.” The victim laughed and the offender then said, “Good girl, suck my dick.” The victim replied, “Now fuck off.” The offender recorded their activity for two minutes and 17 seconds on his phone.

Sequence 6 Intentionally touch child ten years or above and under 16 years of age

12. The offender touched and rubbed the victim’s breasts and also kissed her on the mouth and breasts. The offender told the victim that now she was doing this with him, he “owned her” and she had to do what he said.

Sequence 9 Aggravated sexual intercourse with a child 14 years or more and under 16 years of age

13. The victim lay back on the bed and the offender inserted one or more of his fingers into the victim’s genitalia three or four times.

Sequence 11 Intentionally sexually touch child ten years or above and under 16 years of age

14. The offender motioned for the victim to sit on top of him. The victim complied. The offender’s penis touched the victim’s genitalia as she was moving on top of him.

Sequence 10 Aggravated sexual intercourse with a child 14 years or above and under 16 years, and

Sequence 14 use child aged 14 or above and under 16 for production of child abuse material

15. At about 4.10am the offender took a photograph of the victim with her mouth above his erect penis, and which is the subject of Sequence 16. At about 4.11am the offender commenced a further video recording, the first part of which shows the victim fellating his penis. This part of the recording lasts for about 90 seconds. The victim stopped and said, “I feel sick from that.” She resumed fellatio for a brief period and then stopped and sat up.

Sequence 12 Aggravated sexual intercourse with a child 14 years or above and under 16 years of age and Sequence 15 use child aged 14 or above and under 16 for production of child abuse material

17. The offender continued to record the activity, and the following exchange between the offender and the victim was captured.

“Offender: Show us your pussy.

Victim: No. Stop.

Offender: Show us. I’ll put it in if you show me.

Victim: Don’t fuck around.

Offender: Pussy. Who owns it, who owns it?

Victim: You.”

Following this exchange, the offender inserted his penis into the victim’s genitalia and commenced sexual; intercourse with her. The complainant was encouraging the offender to put his penis inside her. The victim then told him “Stop filming me” and the recording ceased. The recording of the activity is four minutes and 21 seconds in duration and is the subject of Sequence 15.

3 January 2022 Disclosure to Police

18. In the early morning, BJ woke up. She went outside to have a cigarette and noticed the screen door of the granny flat was open and the TV was on. BJ entered the granny flat and saw the offender laying naked on the bed with a naked female beside him. The female was covering her face. BJ slapped the offender and asked who the female was. The offender did not answer but told BJ to get out. BJ asked if it was the victim. The offender did not respond but the victim said “Yes.”

19. BJ screamed at the victim to leave the room. The victim got up and went to the main house, still naked. The offender then left the property. At 5.38am on 3 January 2022, Ms Jolie sent the victim’s mother a message, asking her to come and pick the victim up. At about 10.30am the victim’s mother arrived at the premises to collect the victim and was told by BJ about the victim being naked in the offender’s bed.

20. The victim and her mother travelled home, and the police at Port Macquarie were contacted.

Initial Police Investigation

21. When the police arrived at her home, the victim came out and made a partial disclosure in front of her mother, father and several police officers, which was recorded on a body cam device worn by one of the police. The attending police officers took possession of some of the clothing the victim had been wearing for testing. The offender’s DNA was later detected on the inside of the victim’s underwear.

22. The victim was taken to Port Macquarie Base Hospital where an examination was completed. The victim was later interviewed by Detective Senior Constable Dean. The victim made a number of disclosures regarding the offender.

Arrest

23. On 4 January 2022, the offender was arrested in Johns River. The offender declined to participate in an interview (as he was entitled to do) and a buccal swab was taken. The offender was charged and remanded into custody.

24. The offender’s phone was seized during his arrest and on 29 March 2022, the videos referred to in the facts were discovered in the deleted items folder on the offender’s phone and preserved for use as evidence.

5. All of the offending occurred on the one night in the hours between 12.30am on 3 January and 5.30am on 3 January. In respect of each of the offences contrary to s 66C(4), the circumstance of aggravation relied on is that the victim had a cognitive impairment, as previously referred to. The fact that she had a cognitive impairment is, however, still relevant to each of the other offences, even though it does not form part of the elements of the offence.

6. In respect of each of the offences, there was an age difference between the offender and the complainant/victim; she was approximately 14 years and nine months old. Some of the offences involved the offender directing her to comply with his desires, to remove her clothing, to perform fellatio, to sit on him, and otherwise to acknowledge his dominance over her by having her agree that he owned her “pussy.”

7. As a result, the offences are all in effect a sequence of continuing offending, and there is little utility in referring to the objective seriousness of each individual offence. What occurred before or after any individual offence is relevant to understanding the seriousness of the intervening offence. The fact is that this was, on the facts, a spontaneously entered into sequence of serious offending against a cognitively impaired child, known to the offender to be cognitively impaired.

8. In circumstances where - because of the past close association between the offender and her aunt, and the ongoing association between the offender’s past partner and the child, and her frequent presence at the premises, he was in my view someone who fell within the position of being a trusted person, and each of the offences was an abuse of that trust.

9. It is also aggravated in my view by the fact that all of the offences took place in premises - although it was the granny flat attached to BJ’s premises, it was essentially part of the home to which she was used to visiting on a regular basis, and where she could expect to be safe from conduct such as this. The granny flat was effectively part of the premises of BJ. As I will refer to later, the offender has acknowledged that in effect at the time of this offending, the victim was someone who he perceived in effect to be part of the family, including himself.

10. Acts of sexual intercourse include by definition a wide variety of events. The acts included here in these charges include digital penetration, penile penetration, and fellatio. While the defining section itself makes no distinction between the different acts, depending on the circumstances in which the act is committed, the objective seriousness might vary.

11. In my view in this matter Sequences 7 and 9 involving digital penetration, can be regarded as being objectively less serious than Sequences 8 and 10 involving fellatio and Count 12 involving penile genital intercourse. Digital penetration does not carry the same risk of the transmission of disease or the risk of causing pregnancy, and in my view the digital penetration is not as significant as the fellatio or the penile penetration.

12. While the recordings referred to in Sequences 13, 14 and 15 are of varying lengths, they are each of either fellatio or penile penetration. It is the fact that they were recorded rather than the length of the recording that is significant in my view, and of course those that involve fellatio on my viewing of the recordings included showing the victim’s face.

13. While there is no evidence that the videos have been distributed or that there was any intention to distribute them, the fact that they were made is of serious concern, not simply because the offender might have wished to revisit his activities in the future in the absence of the victim, but because they may, by way of being available on his phone, have fallen into the hands of others.

14. It is a matter of serious concern to victims of sexual assaults that have been recorded that they do not know what has necessarily happened to the recordings or how far they have been dispersed, or whether in 20 years’ time they may show up on the internet to their disadvantage.

15. In this matter, there is no Victim Impact Statement. However, the Court is entitled to infer that conduct such as this is likely to have a very significant effect on the victim in the future as she matures and develops and comes to a greater understanding of the nature of the offending against her.

16. It is difficult to determine the degree of such an effect on a complainant who has been diagnosed as suffering from autism spectrum disorder, attention deficit hyperactivity disorder and oppositional defiance disorder. Despite those matters she may, however, come to appreciate the serious significance of the offending committed against her on this occasion. If so, it is likely that its impact on her will seriously affect her, not simply in the short term but for the rest of her life. However, it cannot be said that the anticipated consequences go beyond what can be ordinarily expected such as to constitute an aggravating factor.

17. The extent that any offence varies in terms of its seriousness from any other offence will be evident, and my finding therefore will be evident from the indicative sentences to be stated later in these reasons. I will simply refer to the objective seriousness in my view as being in the circumstances a very serious example of sexual offending against a child.

18. As to subjective matters before the Court, there is the New South Wales Police Force court history of convictions which indicates that in January of 2020 the offender was dealt with for the offence of stalk, intimidate, intend fear physical etcetera harm, which resulted in a 12-month Conditional Release Order. He has no other offences recorded. There is nothing before the Court to suggest that that offence relates in any way to the victim in this matter. He is, with the exception of that, otherwise a person who has been of good character until he went entirely off the rails on this occasion and spontaneously subjected an almost-15-year-old with a cognitive disability to gross acts of sexual misconduct while recording some of them.

19. In addition, there is a Sentencing Assessment Report under the hand of Kevin Howell, dated 15 June 2023, together with a Sex Offender Sentencing Consultation under the hand of Leanne Thomas, Senior Psychologist, North Coast, dated 9 May 2023. A psychological report tendered on behalf of the offender under the hand of Alan Anderson, psychologist, dated 15 September 2023, a certificate of completion dated 20 June 2022 in relation to a course of Dialectical Behaviour and Resilience, being part of the Connect Program, and a document certifying his attendance at a number of addiction support group sessions between 16 January 2023 and 3 February 2023, being courses provided by Corrective Services New South Wales, Department of Justice at the Mid North Coast Correctional Centre. A letter from Kirrily Slater dated 18 September 2023, being a person who has known the offender for five years as of 18 September 2023, and a letter to the Court from Taylah Broadrick, also dated 18 September 2023, who has known the offender for some 17 years and refers to the offender as being a father figure in her life.

5. It is unfortunate that each of the references is significantly similar to each other. Each contains this passage, word for word;

“Luke has expressed his shame and remorse for his actions when speaking and visiting him. This incident was the result of the use of illicit drugs (magic mushrooms) a hallucinatory drug mixed with alcohol.”

21. In addition. each says;

“I provide this reference in full knowledge of the charges that Luke has pled guilty to, that of sexual assault/intercourse with a disabled minor.”

22. What each of the references says about the offender is very limited, other than assertions that the behaviour is out of character, which is a reasonable comment considering that he has never been charged with anything of like nature before.

23. Ms Slater describes him as being “a loving family man, having known him for five years” and with having ties to the community, working with Aboriginal people. Ms Broadrick says that,

“He has always been so caring towards myself and family, putting us first. Luke has always made sure I felt comfortable and safe in any situation and who I was around.”

24. These are references that I would refer to as being almost proforma and carrying little weight, even if genuinely expressed by their authors, which I don’t doubt. Of concern is that clearly the offender or anyone speaking to either of those persons on his behalf has sought to diminish his responsibility for the conduct by referring to it as “This incident was the result of the use of illicit drugs (magic mushrooms), a hallucinogenic drug, mixed with alcohol.” That is a scenario that the offender has been pushing forward from an early time, including when he gave evidence on sentence.

25. There is no evidence before the Court that the offender consumed such a sufficient quantity of alcohol that he would be unable to remember the events of the night, nor is there any evidence before the Court that the so called “magic mushrooms” cause memory loss, or that the combination of alcohol and magic mushrooms causes memory loss.

26. It is frequently the case that offenders coming before the Court in relation to their offending behaviour seek to diminish their responsibility for it by asserting that they cannot remember anything at all about it, and in my view that is what the offender is doing in this case. He was capable of committing the various acts of sexual misconduct, operating a mobile phone in order to record them and was astute enough to understand that once he had been discovered by BJ in the morning there was a high prospect that the matter would be reported to the police, and in those circumstances what he had recorded, which was known to the complainant, was likely to be used as evidence against him, and in those circumstances he deleted the files. Fortunately, they were capable of being recovered.

27. Contrary to the so-called remorse and contrition referred to in the psychological report and the references, the offender said on sentence the following:

“That he consumed some mushrooms at about 4.00pm at the family gathering although he could not say how much and that he had consumed some more later that evening when it was dark. As to the effects, he said he did not feel any but after he arrived home at BJ’s premises, he saw BJ and the victim standing there and he started to feel physically there but mentally not and asserted that he then had no control over what he was doing. He said he could remember about 10 minutes”.

28. My note refers, and I accept that it may be a mis-recording, to ‘10 minutes” but it may have been “a short period”, having ecstasy and otherwise chopping up marijuana and smoking it with BJ in front of the victim. He said he went into his flat, and 10 minutes later, the victim walked in to his flat and said, “I want to have sex with you” and he said, “No” and asked her to leave. He agreed that he had read the facts as I have previously referred to and said that he could not remember what had happened after asking her to leave. He simply remembered walking away from her and sitting on the lounge, and that his next memory was being slapped the next morning by BJ. As to the recordings on his phone, in effect his evidence was that after he left the premises that morning in his car, he had looked at his phone and realised that the recordings were on the phone and deleted them immediately, in effect because he realised he should not have them.

29. In my view the offender was endeavouring to explain away his own conduct by claiming not to recall it or to not know what he had done and to have had no control over what he had done. That may be for the purpose of trying to attract a lesser sentence or it may simply be for the purpose of protecting his own personality and concept of himself by pretending that it was in effect not him that committed the offending, but the alcohol and/or magic mushrooms.

30. As to his offending, he said that he was terribly sorry to the victim and her family, that this should not have happened, that he was:

“I’m a good guy generally…This shouldn’t have happened…. I feel terrible. I've done something that’s unforgiveable and it’s going to stay with me for the rest of my life.”

31. He also claimed to have drunk some ten beers before getting home that night. One of his comments in cross-examination [T26 Line 40-45] was so totally unbelievable as to reflect badly on any evidence given by him that is supportive or tends to assist in obtaining a lesser sentence.

32. As to his feelings in respect of LT on that evening he stated:

“I was not sexually attracted to her that night...I was heavily affected by drugs and can’t remember what happened.”

33. My note includes that he went on to say, “the mushrooms had a big part of it.”

34. While I do not accept that the offender was somehow not aware of what he was doing - and I note that self‑induced intoxication is not an excuse for sexual offending - it does of course not necessarily mean that an offender cannot be remorseful and contrite in relation to the offending. Indeed, false claims as to total lack of memory can usually be regarded as an acceptance by the offender of a realisation of the seriousness of the offending and are not necessarily simply to try and mitigate the sentence that might be imposed, because most offenders would realise it is not likely to have that effect.

35. The Sentence Assessment Report notes that the offender minimised his culpability by attributing his actions to alcohol and drug use, and that he claimed to the Sentence Assessment Officer to have no recollection of committing the offences, linking it back to the effects of his substance use. Although he accepted responsibility for the offences, he minimised his culpability by stating he had no recollection of them. As to his insight into the impact of his offending, he is said to have expressed his realisation of the harm his offending had on the victim and her whole family, and voiced his remorse for his actions and a belief that they will affect the victim for some time, and she will need counselling to manage the affects. They note that he has done the EQUIPS Addiction Support and Connect programs, and his engagement was apparently reported as good by the program facilitator. Of course, I note that neither of those programs has anything to do with sexual offending.

36. He was assessed by the Sentence Assessment Officer as being a medium to low risk of reoffending, according to the Level of Service Inventory - Revised. He was assessed as being a medium risk of sexual reoffending according to the Sex Offender Sentencing Assessment Report I previously referred to. The offender has no significant medical or psychiatric history.

37. He is an Indigenous person, having been born in the Belmont, Newcastle area, before leaving at the age of six to live on the Mid‑North Coast. He was reared by his mother and step‑father; however, his mother was murdered when he was aged 16 years, apparently being murdered by her then‑boyfriend in a murder‑suicide. I accept that that is a tragic event which no doubt had a significant effect on him, leaving him with unresolved trauma. He also said that his mother had been a serious alcoholic for most of his childhood, and irresponsible in terms of caring for him, causing him to have to rely on his own means.

38. He attended school at Camden Haven and went through the educational system from kindergarten and completed Year 12. He described himself as a moderate student, somewhat good at maths but excelling at sports, playing a variety of them. He was apparently not a problem student and graduated at Year 12. He has worked a variety of jobs beginning as a roof tiler, moving to fencing, then in the produce and liquor departments of Woolworths. There were several other positions that he held before commencing work in the solar power industry which he had worked in for the last 15 years with three different companies prior to this offending.

39. He began to drink and use cannabis throughout the age of 17 and dabbled later with speed and cocaine. However, illicit drug use is said to not appear to have been a significant feature in his life. He married at the age of 18 and has four children, including 16-year-old male twins and a son aged 13 as well as a stepdaughter aged 18 from one of his prior marriages. He has had three long term relationships, the last one lasting for a period of around five years. He does however not see his older children but has some relationship with his 13-year-old son who he was seeing every week before his arrest and has had contact with him every second week while in custody.

40. The person he says he perceives as his father is Stan Davies, who is not his biological father. He didn’t find that out until he was approximately 16 years of age. He described a happy childhood with no physical or sexual abuse during his developing years. He did not report any mental illness in the family or in himself, although he suggested that his younger son may have an Aspergers condition.

41. As far as medication is concerned, over his life he took antidepressants for a period in 2016, but that is the only mental health medication he has ever been prescribed. He has always maintained a high degree of fitness, and while in custody he trains every day.

42. He was assessed by Mr Anderson as being a low risk of future re-offending. Considering that he has no previous like offences and his age at the time of this offending, I accept that it is reasonable to assess his risk of re-offending as being moderate to low; also taking into account in that regard his good work history since leaving school and of course his lack of criminal history.

43. Mr Anderson opines that:

“With on-going counselling and monitoring it is my professional opinion based on the testing undertaken, other information read such as the sentencing report and my opinion on interpreting clinical assessment on the PAI puts Mr Baldwin-Davies in a situation where the prospects of rehabilitation have to be regarded as being very good.”

44. I am unable in the circumstances to find that his prospects of rehabilitation can be properly referred to as “very good.” I accept however, despite his attempt to disassociate himself from the offending, considering his history, that there is at least a reasonable prospect that he will not re-offend and a reasonable prospect that he can be rehabilitated. That will in my view however depend on him finally acknowledging to himself his full responsibility for the offending conduct, rather than trying to hide from himself behind assertions of it being the alcohol and/or the mushrooms that did it.

45. I note, relevant to sentence, that during the time that the offender has been in custody as a result of his arrest, the prison system has suffered a number of lockdowns because of COVID-19. To the psychologist, he referred to having spent time alone in his cell which would have been upward of 60% of the total time of each week over the last 18 months prior to the report.

46. I accept that serving time in recent years while COVID-19 has been present in the community has created significant problems for prisoners, not only in terms of lockdowns but also in terms of their ability to communicate with the wider community, their relatives and friends. There is nothing contained in the offender’s past history which satisfies the considerations of Bugmy or any other matter that might be relevant to reducing his moral culpability.

47. It is, in effect, entirely inexplicable that a man who was 37 years of age at the time of this offending, who had no previous criminal history other than the one stalk intimidate charge in 2020 could so seriously go off track and commit this relatively horrendous series of offences against a cognitively impaired child. I can find no explanation for his conduct in any of the material before me but accept that it was relatively spontaneous in the circumstances that then arose. There is no information or sign in the evidence that the offender had tried to cultivate the victim prior to this offending.

48. One of the most appalling features in relation to the sentence hearing is the offender’s endeavour to directly blame the victim for the offending by suggesting that she asked him or informed him that she wanted to have sex with him, and the absurd suggestion during cross-examination on sentence that he was not sexually interested in her that night, which is of course completely at odds with the offending, the nature of the individual offences and the period of time over which they occurred. The offending was both opportunistic and predatory.

49. I have taken into account all of the matters that I referred to including matters supplied by the Crown that I have not previously referred to, such as the sentencing statistics and the cases referred to as part of the Crown bundle. As the Court of Criminal Appeal has frequently referred to, the sentencing statistics are a blunt tool. Individual cases may be helpful, but each case turns on its individual matters that are perceived by the sentencing judge to be relevant to sentence. So, while I have perused those cases, I have not individually referred to them, rather than simply taking account of them.

50. I have also taken into account, as previously referred to, the effects on children of this type of offending, particularly as referred to in R v Gavel [2014] NSWCCA 56 which affirmed the principles as to the impact of sexual assault offences on children, and I have of course taken into account the expected trauma of sexual abuse on children in accordance with s 25AA(3).

51. While there is no Victim Impact Statement, I am entitled to take into account that harm to a victim in matters such as this is inevitable. Even if the victim is cognitively impaired, she was fully cognisant of what happened to her and it is likely to remain with her for a very significant period of her life, if not throughout it.

52. I have also referred to the fact that in my view each of the offences involved a breach of trust, and each occurred in the home of the victim, or any other person as provided by s 21A(2)(eb). The granny flat was where the offender was residing, but was part of BJ’s premises, and premises at which the complainant had a right to feel safe and secure. As has been said, a person, and in particular, a child, should be safe and feel safe in the home of a family friend or relative, particularly when that home is so proximate to their own. It should be a sanctuary from the potential dangers outside the home and that factor aggravates each of these offences.

53. Taking all of those matters into account, I intend to proceed by way of an aggregate sentence. Accordingly, I am required to provide an indicative sentence in relation to each individual offence and where that offending has an applicable standard non-parole period, an indicative non-parole period.

54. First of all, I indicate in relation to each of the indicative sentences the 25% discount for the utility of the plea has been allowed. I intend to find special circumstances and will vary the statutory relationship between the non-parole period and the balance of term by making the non-parole period 65% of the sentence term. Accordingly:

55. Sequence 6: s 66DB(a) Crimes Act, rubbing her breasts and kissing her, the indicative sentence is one year, six months’ imprisonment.

56. Sequence 7: aggravated sexual intercourse with child between 14 and 16 years, s 66C(4) digital genital penetration, the indicative sentence is five years, and the indicative non-parole period is three years, three months.

57. Sequence 8: aggravated sexual intercourse with child again, s 66C(4) of the Crimes Act, fellatio, the indicative sentence is six years with an indicative non-parole period of four years, six months.

58. Sequence 9: aggravated sexual intercourse with a child, again s 66C(4), digital genital penetration, the indicative sentence is five years with an indicative non-parole period of three years, three months.

59. Sequence 10: aggravated sexual intercourse with a child, again s 66C(4), fellatio, the indicative sentence is six years with an indicative non-parole period of four years, six months.

60. Sequence 11: intentionally sexually touch child, s 66DB(a), that is, his penis touching her genital area, the indicative sentence is four years.

61. As to Sequence 12: aggravated sexual intercourse with a child 14 to 16, s 66C(4), penile-genital intercourse, the indicative sentence is six years with an indicative non-parole period of four years, six months.

62. Sequence 13, 14 and 15, each being use child aged 14 or above under 16 for the production of child abuse material - Sequence 13 relating to the conduct already the subject of Sequence 8; Sequence 14 already being the recording of the conduct referred to in respect of Sequence 10, and Sequence 15 being the recording of the conduct already referred to in respect of Sequence 12 - in each case, the indicative sentence is three years.

63. Having determined each of the indicative sentences and where appropriate an indicative non-parole period, I have turned my mind to the aggregate sentence, and I have taken into account the concept of totality and the fact that the offending was a single sequence of events from some period between 12.30am and 5.30am. The aggregate sentence is one of 12 years. I have again applied the ratio of 65% to the relationship of the non-parole period to the total term of imprisonment, having found special circumstances, being the offender’s first time in custody, and the fact that in my view there is some reasonable prospect of rehabilitation, if not good, and that the offender will be assisted in returning to a normal and non‑criminal lifestyle should he have an appropriate level of supervision when released on parole.

64. Accordingly, the non-parole period will be seven years and nine months. So, I have slightly rounded those figures down.

65. The non-parole period of seven years and nine months will date from the time that he went into custody, 4 January 2022 and the non-parole period will expire on 3 October 2029. The balance of term is four years, three months which will commence on 4 October 2029 and expire on 3 January 2034. So that is a term of imprisonment of 12 years with a non-parole period of seven years, nine months.

Madam Crown, am I required to give him a warning in relation to the non -parole period and the ability of the authorities to extend it?

ANDERSON: I don’t believe so, your Honour, unless my friend‑‑

HIS HONOUR: I don’t think it falls into that category, it’s too low.

ANDERSON: That’s my understanding, your Honour.

HIS HONOUR: I’m not sure where the cut‑off point is though.

ANDERSON: Unless my friend has a different view.

FRASER: Is your Honour referring to the Crimes (High Risk Offenders) Act and the warning in that regard?

HIS HONOUR: Yes. I don’t think it comes under that but‑‑

FRASER: It does, I think it does, your Honour but I can - I do practise in that jurisdiction, I just have to check. Because it’s offending in respect of a child‑‑

HIS HONOUR: Yes, you’re probably right.

FRASER: It’s s 5, at least the aggravated sexual assault matters comprise serious sex offences under that Act.

ANDERSON: Yes, your Honour, I have just confirmed that myself. I apologise.

HIS HONOUR: All right, so I’m required to inform them since the offences fall under the Serious Sexual Offences‑‑

ANDERSON: Section 5 of the Crimes (High Risk Offenders) Act, your Honour.

HIS HONOUR: --that the period of his non-parole period may be extended by the authorities?

FRASER: On application.

HIS HONOUR: On application.

ANDERSON: On application, yes.

HIS HONOUR: All right, thank you.

ANDERSON: Apologies, your Honour.

HIS HONOUR: I’ll ask you to explain that to him.

FRASER: Your Honour, I was just standing to say that I will explain the effect of that.

HIS HONOUR: Yes, thank you, I had realised I needed to look at that because it wasn’t in any of the Crown’s submissions, and then forgot to look it up.

ANDERSON: Apologies, your Honour.

HIS HONOUR: All right, now is there anything other than - well I haven’t missed that one, but is there anything else I missed that should have been referred to?

FRASER: Not from me, your Honour.

ANDERSON: Not from our perspective, your Honour.

HIS HONOUR: All right, thank you.

Mr Baldwin-Davies, do you understand that? Do you need the dates repeated at all?

OFFENDER: No, that’s fine, thank you, your Honour.

HIS HONOUR: Right, thank you.

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Decision last updated: 09 February 2024