R v Bamforth; R v Bamforth

[2024] NSWDC 45

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Bamforth; R v Bamforth [2024] NSWDC 45

Hearing dates:

17 February 2023 (J Bamforth Arraigned)
22 February 2023 (P Bamforth Arraigned, P Bamforth examination-in-chief)
9 March 2023 (Sentence Hearing, P Bamforth cross-examination)
19 May 2023 (Sentence Hearing, expert cross-examined)
13 September 2023 (P Bamforth Mention, solicitor withdrew, offender indicated intention to withdraw pleas)
9 November 2023 (P Bamforth Mention, application to withdraw pleas not pressed)
24 November 2023 (P Bamforth Notice of Motion Hearing, seeking suppression and non-publication orders - refused)
28 February 2024 (Remarks)
29 February 2024 (Remarks continued)

Date of orders:

29 February 2024

Decision date:

29 February 2024

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

P Bamforth: 32-year head sentence, 22-year 4-month non-parole period.

J Bamforth: 30-year head sentence, 19-year 6-month non-parole period.

Catchwords:

CRIME – Sentencing – Child sexual abuse by married couple – Parity – Totality – Child abuse material –

Kidnap in company.

Legislation Cited:

Crimes Act 1900

Crimes (High Risk Offenders) Act 2006

Crimes (Sentencing Procedure) Act1999

Drugs Misuse and Trafficking Act 1985

Weapons Prohibition Act 1998

Cases Cited:

Adam Jolly v R [2013] NSWCCA 76

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Baines v R [2016] NSWCCA 132

Benn v R [2023] NSWCCA 24

Burr v R [2020] NSWCCA 282

Cahyadi v R [2007] NSWCCA 1

Chamseddine v R [2017] NSWCCA 176

Corby v R [2010] NSWCCA 146

Dawson v R [2021] NSWCCA 53

Dickson v R (2017) 94 NSWLR 476

DPP (NSW) v Burton [2020] NSWCCA 54

EG v R [2015] NSWCCA 21

Einfeld v Regina [2010] NSWCCA 87

Georgopolous v R [2010] NSWCCA 246

Gillard v The Queen (2003) 219 CLR 1

Green v The Queen (2011) 244 CLR 462

Hall v R [2021] NSWCCA 220

Huynh v The Queen [2013] HCA 6

Johnson v The Queen [2004] 78 ALJR 616

Jonson v R (2016) 263 A Crim R 268

KR v The Queen [2012] NSWCCA 32

Lloyd v R [2017] NSWCCA 303

Lowe v The Queen (1984) 154 CLR 606

MarkarianvThe Queen (2005) 228 CLR 357

Maxwell v R [2020] NSWCCA 94

McAuliffe v The Queen (1995) 183 CLR 108

Miller v The Queen (2016) 259 CLR 380

Muldrock v The Queen (2011) 244 CLR 120

Postiglione v The Queen (1997) 189 CLR 295

RvABS [2005] NSWCCA 255

RvBJW [2000] NSWCCA 60

R v CMB [2014] NSWCCA 5

R v El-Hayek [2004] NSWCCA 25

R v Fisher (unrep, 29/3/89, NSWCCA)

R v Gavel [2014] NSWCCA 56

R v Goundar [2001] NSWCCA 198

R v JW [2010] NSWCCA 49

R v KNL [2005] NSWCCA 260

R v Lau [2022] NSWCCA 131

R v MAK [2006] NSWCCA 381

RvMJR (2002) 54 NSWLR 368

R v MMK [2006] NSWCCA 272

R v Oliver, Hartley and Baldwin [2003] 1 Cr App R 28

R v PGM (2008) 187 A Crim R 152

R v Simpson (2001) 53 NSWLR 704

R v Wheeler [2000] NSWCCA 34

R v Wright [2009] NSWCCA 3

RS v R [2013] NSWCCA 227

Ryan v R (2001) 206 CLR 267

Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77

The Queen v De Simoni (1981) 147 CLR 383

WG v R [2020] NSWCCA 155

WG v R (28 October 2018, unreported)

Youkhana v R (2015) 249 A Crim R 424

Texts Cited:

Criminal Sentencing Bench Book

Principles of Sentencing 2nd ed, Heinemann, London, 1979

Category:

Sentence

Parties:

Rex (Crown)
Paul Robert BAMFORTH (Offender)
Julia Ann BAMFORTH (Offender)

Representation:

Counsel:
Mr O’Connor (Crown)
Mr O’Sullivan (J Bamforth)
Mr Juhasz (P Bamforth previous counsel)
Mr Calokerinos (P Bamforth)
Solicitors:
Mr Allan (Crown)
Mr Kelly (J Bamforth)
Mr Phan (P Bamforth previous solicitor)
Mr Hamowi (P Bamforth)

File Number(s):

2021/00056259
2021/00055980
2021/00065786
2021/00056317

Publication restriction:

Non-publication order re identity of complainant and any matter which may lead directly or indirectly to the identification of the complainant, including the names of relatives.

Suppression order in respect of name of complainant and any other young person referred to in these remarks whose names will be anonymised.

Non-publication and suppression order in respect of the neuropsychological report of Dr Pulman dated 27/01/2023 and the victim impact statement of the victim’s mother.

INDEX

INTRODUCTION

DELAY

CHARGES FOR SENTENCE

MAXIMUM PENALTIES

STANDARD NON-PAROLE PERIOD

CHARGES ON FORM 1 DOCUMENTS

REPRESENTATIVE COUNTS

SENTENCING FOR CHILD SEXUAL ASSAULT OFFENCES GENERALLY

SENTENCING FOR CHILD SEXUAL ABUSE MATERIAL GENERALLY

OBJECTIVE SERIOUNESS

STATUTORY AGGRAVATING FACTORS (s21A(2))

AGREED FACTS AND FINDINGS REGARDING OBJECTIVE SERIOUSNESS

JOINT CRIMINAL ENTERPRISE

IMPACT ON VICTIM

PAUL BAMFORTH’S SUBJECTIVE CASE

JULIA BAMFORTH’S SUBJECTIVE CASE

STATUTORY MITIGATING FACTORS (s21A(3))

PURPOSES OF SENTENCING

S5 THRESHOLD

TABLES OF INDICATIVE TERMS AND OBJECTIVE SERIOUSNESS

PARITY GENERALLY

TOTALITY, CONCURRENCY AND ACCUMULATION

STANDARD NON-PAROLE PERIODS NOT ADOPTED

SPECIAL CIRCUMSTANCES FOUND

SENTENCE

EXPLANATION OF SENTENCE TO OFFENDERS

HIGH RISK OFFENDERS WARNING

JUDGMENT

INTRODUCTION

1. The offenders Paul Robert Bamforth and Julia Ann Bamforth appear today to be sentenced. As the facts will reveal, they were both responsible for the sexual abuse of a single child victim over a period of 5 years. The victim was aged 12-16 years. The male offender has wavered as to his acceptance of responsibility for the offending, twice indicating applications to withdraw the guilty pleas entered in the Local Court. Ultimately, neither application was pressed. Mrs Bamforth has maintained her guilty pleas from the time they were first entered in the Local Court.

Paul Bamforth

2. Paul Bamforth is to be sentenced in relation to 46 counts contained on an indictment version 7.4. The indictment contains 65 counts, however upon the offender indicating that he would maintain the guilty pleas he entered in the Local Court, 19 counts were placed on Form 1 documents. There are also 2 related charges on a section 166 certificate.

3. The 46 charges for sentence can be summarised as follows:

• 1 charge of possess child abuse material pursuant to s91H(2) Crimes Act 1900 (Count 1);

• 1 charge of use child under 14 years to make child abuse material pursuant to s91G(1)(a) Crimes Act 1900 (Count 2);

• 12 charges of aggravated sexual intercourse with a person aged 10-14 years pursuant to s66C(2) Crimes Act 1900 (Counts 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 19, and 21). In respect of each of the 12 charges, the relevant circumstance of aggravation is that the offending took place in company (s66C(5)(c));

• 4 charges of indecent assault of a person aged under 16 years pursuant to s61M(2) Crimes Act 1900 (Counts 6, 18, 20 and 27);

• 1 charge of commit an indecent act on a child under 16 years which was filmed pursuant to s61O(2A) Crimes Act 1900 (Count 24);

• 1 charge of use child aged 14-16 to make child abuse material pursuant to s91G(2)(a) Crimes Act 1900 (Count 22);

• 10 charges of aggravated sexual intercourse with a person aged 14-16 years pursuant to s66C(4) Crimes Act 1900 (Counts 23, 26, 31, 34, 35, 37, 41, 44, 46, and 48). In respect of each of the 10 charges, the relevant circumstance of aggravation is that the offending took place in company (s66C(5)(c));

• 4 charges of intentionally sexually touch a child aged 10-16 years pursuant to s66DB(a) Crimes Act 1900 (Counts 29, 32, 43 and 49);

• 11 charges of aggravated sexual assault of a victim with a cognitive impairment pursuant to s61J(1) Crimes Act 1900 (Counts 51, 53, 54, 56, 57, 58, 59, 60, 61, 63, and 64);

• 1 charge of specially aggravated take and detain pursuant to s86(3) Crimes Act 1900 (Count 65). This offence differs from the offence of kidnapping simpliciter in that the offender was in the company of other persons and actual bodily harm was occasioned to the victim.

4. Four of the nineteen charges on Form 1 documents are charges of intentionally sexually touch a person in circumstances of aggravation (Counts 50, 52, 55, and 62), the relevant circumstance of aggravation being that at the time of the offence the victim had a cognitive impairment.

5. On the section 166 certificate there are two related charges:

• possess prohibited drug (3 tubes of Androforte (testosterone) pursuant to s10(1) Drugs Misuse and Trafficking Act 1985;

• possess or use prohibited weapon without permit (Zombie sword) pursuant to s 34(1) Weapons Prohibition Act 1998.

Julia Bamforth

6. Julia Bamforth is to be sentenced in relation to 46 counts contained on indictment version 24.9. The indictment contains 67 counts, however upon the offender indicating that she would maintain the guilty pleas she entered in the Local Court, 21 counts were placed on Form 1 documents. There are also 4 related charges on a section 166 certificate.

7. The 46 charges for sentence can be summarised as follows:

• 1 charge of possess child abuse material pursuant to s91H(2) Crimes Act 1900 (Count 1);

• 1 charge of use child under 14 years to make child abuse material pursuant to s91G(1)(a) Crimes Act 1900 (Count 2);

• 13 charges of aggravated sexual intercourse with a person aged 10-14 years pursuant to s66C(2) Crimes Act 1900 (Counts 4, 6, 7, 8, 9, 11, 12, 13, 14, 16, 17, 20, and 23). With the exception of count 7, the relevant circumstance of aggravation is that the offending took place in company (s66C(5)(c)). In relation to count 7, the circumstance of aggravation relied upon in the indictment is that the victim had a cognitive impairment (s66C(5)(f));

• 4 charges of indecent assault of a person aged under 16 years pursuant to s61M(2) Crimes Act 1900 (Counts 5, 19, 22 and 29);

• 1 charge of commit an indecent act on a child under 16 years which was filmed pursuant to s61O(2A) Crimes Act 1900 (Count 26);

• 1 charge of use child aged 14-16 years to make child abuse material pursuant to s91G(2)(a) Crimes Act 1900 (Count 24);

• 11 charges of aggravated sexual intercourse with a person aged 14-16 years pursuant to s66C(4) Crimes Act 1900 (Counts 25, 28, 31, 34, 37, 38, 40, 44, 47, 48, and 51). With the exception of count 37, the relevant circumstance of aggravation is that the offending took place in company (s66C(5)(c)). In relation to count 37, the circumstance of aggravation relied upon in the indictment is that the victim had a cognitive impairment (s66C(5)(f));

• 3 charges of intentionally sexually touch a child aged 10-16 years pursuant to s66DB(a) Crimes Act 1900 (Counts 32, 46 and 52); and

• 11 charges of aggravated sexual assault of a victim with a cognitive impairment pursuant to s61J(1) Crimes Act 1900 (Counts 54, 56, 57, 59, 60, 61, 62, 63, 64, 66, and 67).

8. Four of the 21 charges on Form 1 documents are charges of intentionally sexually touch a person in circumstances of aggravation (Counts 53, 55, 58, and 65), the relevant circumstance of aggravation being that at the time of the offence the victim had a cognitive impairment.

9. On the section 166 certificate there are four related charges:

• possess prohibited drug (2.07 grams Methylamphetamine [ice]) pursuant to s10(1) Drug Misues and Trafficking Act 1985;

• possess or use a prohibited weapon without permit -T2 (Zombie Sword) pursuant to s7(1) Weapons Prohibition Act 1998;

• possess or use a prohibited weapon without permit -T2 (Taser) pursuant to s7(1) Weapons Prohibition Act 1998;

• possess or use a prohibited weapon without permit -T2 (Folding knife with knuckle guard) pursuant to s7(1) Weapons Prohibition Act 1998.

10. A further 7 charges on a s166 certificate have been placed on Form 1 documents attaching to the above section 166 charges.

DELAY

11. Providing these remarks on sentence has regrettably been delayed. The reasons for the delay include the sheer number of charges in respect of which the offenders are to be sentenced, Mr Bamforth’s indication to the Court on two occasions of his intention to withdraw his pleas, the change of legal representation by Mr Bamforth, and issues relating to the availability of both the Court and the legal representatives of the offenders.

12. Both offenders have been in custody awaiting sentence. Given the nature of the charges, I accept that the time in custody has been, at least, challenging for both. In relation to Mrs Bamforth, her circumstances were exacerbated following a diagnosis of Acute Lymphocytic Leukemia in September 2023. Plainly, her medical condition has made and may continue to make her time in custody more onerous than it would otherwise be, and that itself justifies a finding of special circumstances.

CHARGES FOR SENTENCE

13. The maximum penalties, standard non-parole periods and findings as to the objective seriousness for reasons given in these remarks are set out in two Tables which are attached to and form part of these remarks. The Tables also set out the charges placed on the Form 1 documents as they attach to the primary charge for sentence.

MAXIMUM PENALTIES

14. The maximum penalties and the standard non-parole periods are guideposts for sentencing Judges as to the seriousness with which the community through parliament views offending of this type. There is no doubt that this offending is extremely serious and calls for stern punishment.

15. In Markarian v The Queen (2005) 228 CLR 357 at [30]–[31], Gleeson CJ, Gummow, Hayne and Callinan JJ said:

“Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance …

It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.”

STANDARD NON-PAROLE PERIOD

16. The standard non-parole period is a matter to be taken into account as part of the determination of sentence. The legislation in Part 4 Division 1A of the Crimes (Sentencing Procedure) Act specifies that the standard non-parole period applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors, and without bringing to account any matters that are unique to the offender or the class of offenders.

17. Ultimately though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise, together with the objective and subjective matters. This process of instinctive synthesis, as described by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51], mandates that a sentencing judge:

“identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case”.

18. In a single judgment, all justices of the High Court in Muldrock v The Queen (2011) 244 CLR 120 held at [17]:

“It remained, and remains, essential to recognise, however, that the fixing of a non-parole period is but one part of the larger task of passing an appropriate sentence upon the particular offender. Fixing the appropriate non-parole period is not to be treated as if it were the necessary starting point or the only important end-point in framing a sentence to which Div 1A applies.”

19. Even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will apply, nor that there shall be a percentage calculation performed where the offence might be found lower on the scale of seriousness.

20. The process is not arithmetical but more intuitive, however the law requires that I determine where on the scale of objective seriousness the offence does fall. The precise positioning of the offence along the scale is a matter of judgment and is not easy to identify. While I am not compelled to impose a standard non-parole period, s 54B(3) of the CSP Act requires a sentencing judge to make a record of reasons for setting a non-parole period that departs from the standard non-parole period, as well as identifying the factors taken into account when doing so.

21. For reasons provided later in these remarks, I do not intend to impose a standard non-parole period in respect of any charges for sentence.

CHARGES ON FORM 1 DOCUMENTS

22. There are 15 Form 1 documents signed by Mr Bamforth and 19 by Mrs Bamforth.

23. By signing the certificates to those documents, I confirm that I have taken those charges into account in sentencing for the principal charges to which they attach. Charges on Form 1 documents are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal charges. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence. The second is the community’s entitlement to exact retribution for serious offences: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [42].

24. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences. Rather, as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51]-[54], it takes these matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted and sentenced.

25. In this particular case the offences on the Form 1 documents are of some considerable significance as most of them are either equivalent to or at least similar to the offences to which they attach in terms of seriousness.

REPRESENTATIVE COUNTS

26. There are a number of representative counts for sentence. The facts for these counts reference further offending that occurred on the same day, either in the same or additional videos, which provide context to the offending and highlight the repeated and continuous nature of the conduct.

27. I am mindful of the authorities relating to uncharged acts, including Baines v R [2016] NSWCCA 132, where at [5] it was said:

“It would, of course, be wrong in sentencing an offender for a specific offence to increase the penalty on account of other misconduct, whether separately charged or not. However, it is not an error to assess the seriousness of the specific offence by reference to surrounding circumstances, including other offending which is established beyond reasonable doubt.”

28. The position in Baines references and confirms the earlier position in Einfeld v Regina [2010] NSWCCA 87 where Basten JA (with whom Hulme and Latham JJ agreed) said at [146]:

“… a course of unlawful conduct may well give rise to a number of possible charges. If the prosecution proceeds on one count only, it does not follow that the surrounding conduct cannot be taken into account in sentencing. The surrounding conduct cannot give rise to a more serious offence, but it can demonstrate the degree of seriousness with which the charged offence should be viewed.”

29. I have applied these principles when considering the representative counts. Namely, those counts attract some greater seriousness given that they occurred in the context of uncharged acts. That is not to say that the offender is being sentenced for uncharged acts.

SENTENCING FOR CHILD SEXUAL ASSAULT OFFENCES GENERALLY

30. The following has been extracted from the Criminal Sentencing Bench Book (CSBB) at [17-400].

31. The abhorrence with which the community regards the sexual molestation of young children and the emphasis attached to general deterrence in sentencing offenders is reflected in the judgment in R v BJW [2000] NSWCCA 60 at [20], where Sheller JA stated:

“The maximum penalties the legislature has set for [child sexual assault] 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. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A Crim R 151 at 154.”

32. The case of R v Fisher (unrep, 29/3/89, NSWCCA) at [6] is also frequently cited:

“This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations …

This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults …

Tampering with children of tender years is a matter of grave concern to the community: R v Evans (unrep, 24/3/88, NSWCCA).”

33. The courts have recognised a change in community attitudes to child sexual assault. In R v MJR (2002) 54 NSWLR 368 at [57], Mason J expressed the view that there has been a pattern of increasing sentences for child sexual assault and that this:

“… has come about in response to greater understanding about the long-term effects of child sexual abuse and incest; as well as by a considered judicial response to changing community attitudes to these crimes.”

34. In R v ABS [2005] NSWCCA 255 at [26], Buddin J, with whom Brownie AJA and Latham J agreed, said:

“Offences involving acts of significant sexual exploitation against children are almost without exception met with salutary penalties. Moreover, the legislature has in recent years provided for increased penalties in respect of many such offences. It is an area in which the need to protect children from exploitation and to deter others from acting in a similar fashion assume particular significance.”

35. These legal principles have continued to evolve over the past 20 years since that judgment.

36. In Ryan v R (2001) 206 CLR 267 Kirby J stated at [118]:

“A fundamental purpose of the criminal law, and of the sentencing of convicted offenders, is to denounce publicly the unlawful conduct of an offender. This objective requires that a sentence should also communicate society’s condemnation of the particular offender’s conduct. The sentence represents ‘a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law’. In the case of offences against children, which involve derogations from the fundamental human rights of immature, dependent and vulnerable persons, punishment has an obvious purpose of reinforcing the standards which society expects of its members.”

37. In R v Gavel [2014] NSWCCA 56 at [110]:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can do”. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at [3], [26]-[39].”

38. In EG v R [2015] NSWCCA 21 at [42] it was said:

“General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.”

39. In Maxwell v R [2020] NSWCCA 94 at [112]:

“The commission of one offence of this type is grave enough for a young victim, let alone the destructive effect of multiple offending such as this upon the victim's childhood years.”

40. And in R v Lau [2022] NSWCCA 131 at [178] and [82]:

“…a message must be sent to those who offend against children intentionally and repeatedly that their actions will not be tolerated, and that they will receive significant punishment.”

“Although the time over which the individual instances of offending took place may not have been an entirely irrelevant consideration, it was of limited significance. It has been observed by this Court on numerous occasions that offending of this nature is capable of having profound, long-term, and generally deleterious effects upon victims, both physically and psychologically.”

41. I note that s25AA of the Crimes (Sentencing Procedure) Act1999 dictates that for child sexual offences the offender must be sentenced in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offences.

SENTENCING FOR CHILD SEXUAL ABUSE MATERIAL GENERALLY

42. R v Oliver, Hartley and Baldwin [2003] 1 Cr App R 28 at [20]:

“There are specific factors which are capable of aggravating the seriousness of a particular offence. We identify these as follows:

(i) If the images have been shown or distributed to a child.

(ii) If there are a large number of images. It is impossible to specify precision as to numbers. Sentencers must make their own assessment of whether the numbers are small or large. Regard must be had to the principles presently applying by virtue of R v Canavan, Kidd and Shaw [1998] 1 Cr App R 79.

(iii) The way in which a collection of images is organised on a computer may indicate a more or less sophisticated approach on the part of the offender to trading, or a higher level of personal interest in the material. An offence will be less serious if images have been viewed but not stored.

(iv) Images posted on a public area of the internet, or distributed in a way making it more likely they will be found accidentally by computer users not looking for pornographic material, will aggravate the seriousness of the offence.

(v) The offence will be aggravated if the offender was responsible for the original production of the images, particularly if the child or children involved were members of the offender's own family, or were drawn from particularly vulnerable groups, such as those who have left or have been taken from their home or normal environment, whether for the purposes of exploitation or otherwise, or if the offender has abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader.

(vi) The age of the children involved may be an aggravating feature. In many cases it will be difficult to quantity (sic) the effect of age by reference to the impact on the child. But in some cases that impact may be apparent. For example, assaults on babies or very young children attract particular repugnance and may, by the conduct depicted in the image, indicate the likelihood of physical injury to the private parts of the victim. Some conduct may manifestly (that is to say, apparently from the image) have induced fear or distress in the victim, and some conduct which might not cause fear or distress to an adolescent child, might cause fear or distress to a child of, say, 6 or 7.”

(emphasis added as observations apposite here).

OBJECTIVE SERIOUNESS

43. As I proceed through the agreed facts, I propose to annotate those facts with my findings as to the objective seriousness in respect of each charge. The findings will be italicised and readily distinguishable from the facts. Those findings are also set out in the two Tables.

44. In considering objective seriousness in the context of these two offenders, I am mindful of two important considerations. The first are the general legal principles applicable to offending of this type. The second matter is to have close regard to the offenders’ respective roles in the criminal enterprise.

Assessment of objective seriousness in child sexual offences generally

45. The following factors are often relevant to the assessment of gravity in relation to child sexual offending. To the extent that any of these factors apply in the present matters, I have had regard to them in determining the seriousness of the offending, except where the factor is an element of the offence:

1. the nature of the sexual offence, noting that there is no strict hierarchy of sexual acts in terms of their seriousness and that some forms of sexual activity may be regarded as more serious than others (R v PGM (2008) 187 A Crim R 152 at [26], per Fullerton J). The nature of the sexual act should not be considered in isolation and the objective seriousness is not necessarily less because the nature of the sexual act was oral intercourse (Adam Jolly v R [2013] NSWCCA 76);

2. the age of the child with within the age range covered by the relevant statutory provision, “the younger the child the more serious the offence” (R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [42]);

3. the age difference between offender and victim (Corby v R [2010] NSWCCA 146 at [77]). Mr Bamforth was 31 years 3 months older than the victim. Mrs Bamforth was 30 years 8 months older than the victim. These both represent a considerable age disparity;

4. any humiliation or degradation accompanying the offending. Although the offending may have caused the victim some humiliation or embarrassment, there is no clear evidence of that and I have not taken this factor into account in relation to the sexual offending;

5. whether there was any degree of intimidation by the offender(s) of the victim. There is no evidence of this in this case;

6. whether there was any threat or offer made by the offender to the victim. The only evidence of anything like an offer being made to the victim was the supply to him of illicit substances including marijuana, methamphetamine and MDMA. I note that the absence of physical violence, force or threats does not serve to mitigate child sexual offending (Burr v R [2020] NSWCCA 282 at [174]-[175]);

7. the duration of the offending. It is a long-standing principle that the fact that instances of child sexual offending are relatively short in duration does not reduce objective seriousness (Chamseddine v R [2017] NSWCCA 176 at [52]-[55]);

8. whether the offending was repeated or took place over a period of time, noting that repeated sexual offending over a period of years against a child will have a destructive effect upon a victim’s childhood (Maxwell v R [2020] NSWCCA 94 at [112]-[113]). Further, where there has been a pattern of repeat offending, an offender will be deprived of a claim for leniency that might have been available if the offending was spontaneous and isolated (RS v R [2013] NSWCCA 227 at [47]). The charged offending in this instance took place over a prolonged period of time from 2016 through to early 2021, when the victim was aged 12-16 years;

9. where the offending took place, in this case the home of the offenders. This is a statutory aggravating factor, addressed below;

10. any relationship between the offender and the victim. Here the victim may best be described as a family friend. His father was close friends with at least the male offender and the victim appears to have been part of the same friendship group as the offenders’ own son;

11. whether the offender was in a position of trust vis-à-vis the victim. This is a statutory aggravating factor, addressed below;

12. whether the victim was under the authority of the offender. This is a statutory aggravating factor, addressed below;

13. whether the sexual assault occurred in company. Where this is a statutory aggravating factor or an element of the offence it will not be taken into account in assessing objective seriousness;

14. whether the victim had a cognitive impairment. In some instances this is an element of the offence and in those cases it is not taken into account in assessing seriousness, otherwise it is a statutory aggravating factor, addressed below.

Assessment of Objective Seriousness in Child Abuse Material Offences Generally

46. The starting point are the specific factors referred to in Oliver, Hartley and Baldwin, supra.

47. Also relevant is the seriousness of the sexual offending captured by the recordings and the extent of the offender’s involvement with it. In this particular case, it is significant that the child abuse material charges cover an expansive period, rather than a specific, isolated occurrence. There is a well-established pattern of conduct.

48. For both offenders, count 1 is a charge of possessing child abuse material being videos and literature. The offending period was from 12 May 2016 to 26 February 2021.

49. Count 2 is a charge of producing child abuse material (namely videos) for a child under the age of 14 years. The offence period is 12 May 2016 to 28 March 2018.

50. For Mr Bamforth, count 22 relates to the production of child abuse material (namely videos) using a child of or above the age of 14 years. The offence period is 29 March 2018 to 28 March 2020.

51. For Mrs Bamforth, the same charge appears at count 24.

52. Upon forensic examination of Mr Bamforth’s mobile phone, police detected 697 notes, consisting of approximately 300 notes described as stories written by both Paul and/or Julia Bamforth. The stories range in length and the specific sexual details they go into vary. Some of the stories captured are from 2016 and contain in excess of 2500 words. The details of these stories will be addressed later in these remarks.

53. The facts reveal that there were 61 video files containing child abuse material from 12 May 2016 to 25 March 2020.

54. The period of time over which the material was produced, the number of recordings and the number of stories constituting child abuse material bear directly upon the objective seriousness of the offending.

Caution to be exercised

55. Some of these objective factors are elements of the offences. Care will be taken not to elevate the seriousness of the offending where a factor is an element of the charged act or offend the principle laid down in The Queen v De Simoni (1981) 147 CLR 383.

Submissions regarding objective seriousness

56. Before setting out the agreed facts and making findings as to objective seriousness, I note that I have had regard to the parties’ submissions in relation to that matter. I note the Crowns submissions regarding objective seriousness are set out in respect of each count in Exhibit D.

57. In respect of Mr Bamforth, the following submission was made (MFI 3):

“The offending occurred over a period of approximately 5 years. There is no evidence of the use of physical force upon the child to perform the sexual acts. It is submitted that the offender’s role in the offending is lesser than that of the co-offender. That this (sic) should be reflected in the objective seriousness of the offending of this offender. It is submitted that the objective seriousness of the offending falls slightly below the mid-range.”

58. In relation to the s86(3) offence the following submission was made on behalf of Mr Bamforth:

“The child can be seen being punched, kicked, and manhandled by other young persons, one of which (sic) is the offender’s son. Some of the physical attacks upon the child are in the presence of the offender. The offender is seen in the footage chastising and pointing at the child, while he was sitting on a couch. There is no evidence that the offender struck the child but he was present while other young persons were hitting the child. It is submitted that this offending falls below the mid-range but is above the low range of objective seriousness.”

59. I cannot accept this submission. The facts demonstrate that Mr Bamforth was largely in control of the situation, on at least one occasion kicked the victim with his right leg to the face and attempted to stab the victim in the legs with a screwdriver. In any event, the principles relating to joint criminal enterprise make Mr Bamforth criminally responsible for the conduct of all others involved.

60. On behalf of Mrs Bamforth the following submission was made regarding objective seriousness:

“the Agreed Facts reveal objectively very serious offending & would fall above mid-range”.

61. At the Sentence Hearing on 17 February 2023, counsel for Mrs Bamforth conceded that for the offences which the Crown submitted were in the high range of objective seriousness the offending could be characterised as well above the mid-range but falling short of the worst category.

62. I have adopted the Crown’s approach of making findings of objective seriousness in relation to each of the charges. Neither offender has done this. In making such findings, I have borne in mind the submissions made for the offenders.

STATUTORY AGGRAVATING FACTORS (s21A(2))

63. Before turning to the facts, in the course of making findings about objective seriousness I refer to relevant objective statutory aggravating factors. In respect of such factors, I make the following findings to which I will have regard in assessing objective seriousness. I intend to apply these findings without repeating them throughout the remarks. I will refer to the applicable statutory aggravating objective factors which is a reference back to these findings if the factor is enlivened by the facts surrounding the offending.

(cb) the offence involved the offender causing the victim to take, inhale or be affected by a narcotic drug, alcohol or any other intoxicating substance

64. The victim’s statement referred to in the facts, refers to the fact that Mr Bamfoth would take him to their room, give him a pipe, Mrs Bamforth would get undressed and “then it would start from there” and his recollection that, “I used to get free pot, free ice, free MDMA off him, for, to do that… to fuck, root his wife.” Based on the victim’s statement I find the offending took place in an environment where the offenders had caused or permitted the victim to take an intoxicating substance, namely pot, ice and/or MDMA. I find that it is an aggravating factor in relation to all of the offending under s21A(2)(cb).

(d) the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences)

65. Both offenders have a criminal history involving a variety of offences, none of which involve like offending. In the circumstances, I decline to find their criminal history an aggravating factor, but it does disentitle to them to any leniency which might otherwise flow to an offender without a history of convictions.

(e) the offence was committed in company

66. Almost all of the offences were committed in the company of the co-offender. This is an aggravating factor I have taken into account only in those instances where “in company” is not an element of the offence.

(eb) the offence was committed in the home of the victim or any other person

67. All the offences were committed by the offenders in their home, a location where, given the amount of time the victim spent there and the friendship between the victim’s father and the offenders, the victim was entitled to feel safe and secure. Relevantly, the Court in Jonson v R (2016) 263 A Crim R 268 at [40] recognised that “the aggravating factor is not limited to the home of the victim but extends to the home of any other person.” On that basis, I have considered the offending occurring within the offender’s home an aggravating factor. I note that counsel for Mrs Bamforth did not challenge this submission and counsel for Mr Bamforth was silent as to the matter. The predatory behaviour changed what should have been a house of security for the victim into a house of horror.

(g) the injury, emotional harm, loss or damage caused by the offence was substantial

68. Whilst the emotional harm and damage caused to the victim is both clear and substantial, I accept the Crown’s submission that it would be “impossible and artificial to attempt to make findings of fact in relation to what harm each individual offence caused”. On that basis, I have examined this factor through the lens of section 3A(g) and when considering the appropriate aggregate sentences, rather than considering the factor under s21A(2) as an aggravating factor.

(k) the offender abused a position of trust or authority in relation to the victim

69. I am mindful of the distinction between a position of trust and a position of authority as discussed in DPP (NSW) v Burton [2020] NSWCCA 54 at [31]:

“A position of trust is not a precise term, but may be understood as covering relationships involving an obligation of care and protection, as compared with relationships involving authority over another. Thus, parents, child minders, health workers and other similar relationships may constitute positions of trust.”

70. The age of this victim and his relationship to the offenders warrants a finding that this is an aggravating factor. The offenders were trusted adults to the victim from when he was a young child, a position characterised by the offender’s friendship with the victim’s father and the victim frequently visiting the offender’s house to see their son. The relationship between the victim and the offenders is probably best described in a statement by the victim’s father dated 1 April 2021 (Exhibit C):

“From a young age (the victim) became friends with Paul’s son ZB. They are similar ages and pretty much grew up together as mates. We moved to Wyoming which was close to Paul and Julia’s house and (the victim) would go there once or twice a week.

I was working during the days, sometimes seven days a week and (the victim) would often go to the house to spend time with ZB. Sometimes he would stay there overnight.”

71. I have had regard to the offenders’ abuse of their position of trust as an aggravating factor to all offences except those where having the care of a child is an element of the offence (s91H(2) and s91H(2)(a)).

(l) the victim was vulnerable

72. The offending was further aggravated by the fact that the victim was vulnerable. The expert evidence established that the victim suffered a disability, including Autism Level 2, an IQ in the extremely low range, and a mild to moderate intellectual disability. I will in these remarks outline the knowledge the offenders’ had about the victim’s vulnerability. One example is that they referred to him as an array of names including “the retard”. The vulnerability of the victim will be taken into account in assessing objective seriousness for all offences except those where the cognitive impairment of the victim is an element of the offence.

AGREED FACTS AND FINDINGS REGARDING OBJECTIVE SERIOUSNESS

Merged Facts

73. Initially, and perhaps customarily, there were 2 separate sets of agreed facts, one for each offender. In most regards they were identical. I undertook the task of combining the 2 documents before seeking the agreement of the legal representatives for the parties that the agreed merged facts were entirely consistent with the statement of agreed facts signed by the respective clients. I note that Mr Bamforth has today signed the agreed merged facts, and I expect that prior to the sentence being pronounced, Mrs Bamforth will do the same. I note that her health conditions has made signing the document difficult. I note that a declaration at the end of the document by the legal representatives for the offenders confirms both the accuracy of the facts stated in the document and their respective client’s adoption of same. A copy of the merged facts signed by the legal representatives for the offenders adopting the document has been tendered as an exhibit in both matters.

Caution to be exercised

74. In sentencing the offenders, I have had regard to the facts pertaining to them separately. Unless the facts are common, I have not taken into account the facts agreed by one offender when sentencing the other offender.

75. The offenders are criminally responsible in respect of each of the alleged offences on a joint criminal enterprise basis, save for:

1. the offender Paul Bamforth is solely criminally responsible in respect of sequence H78550740/11 (Count 65), as principal; and

2. the offender Julia Bamforth is solely criminally responsible in respect of sequences H78439722/57 (Count 7), H78439722/61 (Count 10) & H78439722/102 (Count 31), as principal.

76. In addition, both offenders are to be sentenced separately for the s166 related offences.

Background to offending

77. The offenders in these matters are Paul BAMFORTH and Julia BAMFORTH.

78. The victim in this matter is young person, ZR (‘the victim’), born 29 March 2004. The victim has been diagnosed with ADHD and autism.

79. The offenders in this matter are married and resided on the Central Coast. Also living at the premises were the son of the offenders, ZB and also the mother of one of the offenders. The offending seemingly took place with ZB and the mother being present in the home on most occasions although there is no evidence concerning that question and no suggestion that either the son or the mother were aware of what was occurring.

80. On 26 February 2021, a search warrant was executed at their home. In the case against PAUL BAMFORTH, a number of items were seized, as follows:

1. 1 x zombie sword in bedroom 1 (X0005050501) (s.166 Related matter - H80993016/1 – use prohibited weapon contrary to prohibition order). Having regard to the nature of the weapon, and the types of weapons covered by the offence provision, I find the objective seriousness falls just above the mid-range;

2. 3 x tubes of AndroForte (a testosterone) in bedroom 1 (XD000186405) (s.166 Related matter - H80993016/2 – Possess prohibited drug). Having regard to the quantity and type of drug,I find the objective seriousness falls at the low range.

81. In the case against JULIA BAMFORTH the following was seized:

1. a clear bottle containing clear liquid in the wardrobe of bedroom 1 (XD000186410);

2. a black taser in a safe (X0004185526) (s.166 Related matter – H81236284/6 – Possess prohibited weapon). Having regard to the nature of the weapon, and the types of weapons covered by the offence provision, I find the objective seriousness falls just below mid-range;

3. 2 x knuckle dusters (taser) in the wardrobe of bedroom 1 (X0004185527) (Form 1 matter – H81236284/8 – Possess prohibited weapon) (Form 1 matter – H81236284/9 – Possess prohibited weapon);

4. a flick knife in the wardrobe of bedroom 1 (X0004185528) (Form 1 matter – H81236284/10 – Possess prohibited weapon);

5. a box of assorted lasers in the wardrobe of bedroom 1 (X0004185529);

6. 1 x folding knife with knuckle guard in the wardrobe of bedroom 1 (X0004185530) (s.166 Related matter – H81236284/11 – Possess prohibited weapon). Having regard to the nature of the weapon, and the types of weapons covered by the offence provision, I find the objective seriousness falls just below the mid-range;

7. 3 x vials of assorted steroids in the wardrobe of bedroom 1 (XD000186421) (Form 1 matter – H81236284/4 – Possess prohibited drug);

8. 1 x zombie sword in bedroom 1 (X0005050501) (s.166 Related matter – H81236284/5 – Possess prohibited weapon). Having regard to the nature of the weapon, and the types of weapons covered by the offence provision, I find the objective seriousness falls at the low range;

9. 2 x Swann CCTV hard drives in bedroom 1 (X0004050502);

10. 1 x Apple iPhone mobile phone in bedroom 1 (X0004050503);

11. 2g of white powder in a resealable bag in bedroom 1 being Methylmethamphetamine (XD000186402) (Form 1 matter – H81236284/2 – Possess prohibited drug);

12. 2 x small containers containing white crystal in bedroom 1 (XD000186403);

13. 1 x skittle box containing USB/laser pointer in bedroom 1 (X0004050506);

14. 3 x tubes of androforte (a testosterone) in bedroom 1 (XD000186405);

15. 2 x blue tablets in bedroom 1 (XD000186406) & 1 x blue tablet in bedroom 1 (XD000186404) being Methyl methamphetamine (MDMA) (Form 1 matter – H81236284/3 – Possess prohibited drug);

16. 1 x resealable bag containing 2.07g white crystal in bedroom 1 being Methyl-amphetamine (ICE) (XD000186407) (s.166 Related matter – H81236284/1 – Possess prohibited drug). Having regard to the quantity and type of drug, I find the objective seriousness just below the mid-range;

17. 1 x tick list in bedroom 1 (X0004050507);

18. $715 Australian currency in bedroom 1 (XD000186408);

19. 1 x taser in bedroom 1 (X0004185523) (Form 1 matter – H81236284/7 – Possess prohibited weapon);

20. 1 x swisse vitamin container containing 16 white capsules in bedroom 1 (XD000186409); and

21. 1 x green laser pointer in bedroom 1 (X0004185524)

82. Photographs of the seized items were tendered as Exhibit B.

83. After the offenders’ arrest, a neighbour, AS, was at the house cleaning up. During the clean AS located seven hard drives, the first five were in a shoe cupboard underneath rubbish, together in a bag. At this stage AS had heard about the charges and was concerned, so she put them aside. She located two more taped to the bottom of the bedside table, and again put them aside.

84. AS asked a friend to check on the contents of the hard drives, and following this, decided to take them to police.

85. A review of some of the electronic devices, including one belonging to Paul BAMFORTH contained child abuse material, showing Paul and Julia BAMFORTH engaged in sexual acts with a young child, estimated to be between 10 and 13 years of age.

86. As a result, Strike Force BLOOMSBURY was formed.

87. The victim first met Paul and Julia BAMFORTH through the victim’s father. The victim’s father was friends with Paul BAMFORTH. The victim was a young child when he first met the co-offenders.

88. The victim would go to the co-offenders’ house and said it was, “made out to see ZB” (the offenders’ son) but every time, “it was always to fuck his wife, but I didn’t want to, but I had to.” ZB would be home, but the victim did not tell him, saying, “if I did, he would bash me.”

89. The victim recalls that they would give him, “ice to fuck his wife.” The victim says, “I used to get free pot, free ice, free MDMA off him, for, to do that… to fuck, root his wife.”

90. The victim says “he’d feed me up on the M, which makes you really horny.” The victim said then Paul BAMFORTH would take him into his room, give him a pipe, and then would get Julia BAMFORTH to get undressed and, “then it would start from there.”

Complaint

91. When the victim was around 14 or 15, he disclosed to his father that Paul BAMFORTH had asked the victim to “fuck” Julia BAMFORTH, and the victim begged his father not to say anything. The victim’s father immediately confronted the offender Paul BAMFORTH, who denied it, and said, “what do you think I am?” and “How long have we been mates for?” It was around this time that the victim’s father discovered Paul BAMFORTH had been giving the victim ‘ice’.

92. The victim was interviewed where a large number of disclosures were made. The victim disclosed that there had been ongoing sexual abuse by the co-offenders from the time he was 7 years old. This included penile-vaginal intercourse with Julia BAMFORTH, Julia BAMFORTH performing oral sex on the victim and Julia BAMFORTH masturbating the victim.

93. The victim further disclosed that he had been forced to perform oral sex on Paul BAMFORTH and that Paul BAMFORTH had performed oral sex on the victim.

94. The victim disclosed that he was supplied with prohibited drugs by the co-offenders from 7 years of age, in the form of pot, ice and MDMA.

95. The victim’s father recalls observing Paul BAMFORTH, on one occasion, watching pornography that involved acts of bestiality. The victim’s father recalls that the co-offenders were always watching pornography.

96. The victim’s father also recalls that several children would stay at the co-offenders’ residence, particularly children who were vulnerable. He believes one of these children was LG, and other children called, “Harry” and “Max”.

97. There are numerous text messages between the co-offenders discussing offending against the victim. In one such text, Julia BAMFORTH commented, “making me feel so dirty like a pedo”. The texts capture the planning by the co-offenders to offend against the victim and how it created sexual gratification for the co-offenders. They also reveal the extreme depravity of both offenders.

98. The analysis of the phones of the co-offenders revealed several text message exchanges. During these exchanges it is clear that the co-offenders were aware of the cognitive impairment of the victim.

99. The co-offenders refer to the victim as the “retard” throughout these exchanges. An example of the exchanges is extracted below:

PAUL BAMFORTH: “his a (sic) ugly little cry baby retard the (sic) you flirted so much with”

JULIA BAMFORTH: “I want your cock and you want to fuck this just to tease the retard”

JULIA BAMFORTH: “now sexy I still love our threesomes we had with (the victim) but it’s time now for younger blood and even logan is too old and even though he is another retard he isn’t a true 10-year-old that wants my old horny cunt”

PAUL BAMFORTH: “yes I’ll still double cock it with you sexy and the retardo”

JULIA BAMFORTH: “being in the pool was another time I touched the retard’s cock”

JULIA BAMFORTH: “Yes I do want to fall pregnant to that ugly little retard so we can molest the child or children”

PAUL BAMFORTH: “And I remember all the things we used to do with retard boy”

PAUL BAMFORTH: “So next time your mouth will be sucking his foreskin cock and I will join in after I watch you eat his dick because the retard is so dumb he doesn’t care if it’s a girl or boy on the end of his prick”

The victim turned 12 years old on 29 March 2016

RE PAUL BAMFORTH:

Count 1, H78550740 /127 – S 91H(2) Crimes Act1900, Possess child abuse material-T1, 12 May 2016 to 26 February 2021 – LPC: 78660

Count 2, H78550740 /53 – S 91G(1)(a) Crimes Act 1900, Use child under 14 years to make child abuse material, 12 May 2016 to 28 March 2018 – LPC: 73036

RE JULIA BAMFORTH:

Count 1, H78439722 /140 – S 91H(2) Crimes Act 1900, Possess child abuse material-T1, 12 May 2016 to 26 February 2021 – LPC: 78660

Count 2, H78439722 /48 – S 91G(1)(a) Crimes Act 1900, Use child under 14 years to make child abuse material, 12 May 2016 to 28 March 2018 – LPC: 73036

100. In respect of Count 1 for each offender the crown relies on the 61 videos described in these facts as well as the 300 debauched stories described in these later in these facts.

101. I have had regard to the Crown’s submission that the objective seriousness falls towards the upper end of the mid-range of objective seriousness.

102. For Mr Bamforth, in respect of count 1 I find the objective seriousness just above the mid-range having regard to the following factors:

1. the period of time over which the material was possessed, almost 5 years;

2. the age of the victim during this period, 12 to 16 years;

3. the nature of the sexual offending depicted;

4. the fact that the material involved a real child, namely the victim;

5. the relationship between the victim and the offenders;

6. the number of stories and videos;

7. the fact that the child abuse material was created, sorted and managed by Mr Bamforth;

8. any applicable statutory aggravating objective factors, identified above (s21A(2)(cb),(eb),(k),(l)).

103. For Mrs Bamforth, in respect of count 1, the second last factor referred to above does not apply and for that reason, I find the objective seriousness of her offending falls at the mid-range.

104. In respect of Count 2 for each offender the crown relies on the 26 videos described in these facts up until the victim was 14 years of age.

105. I have had regard to the Crown’s submission that the objective seriousness falls towards the upper end of the mid-range of objective seriousness.

106. I find the objective seriousness in respect of count 2 for both offenders falls just above the mid-range having regard to the following factors:

1. the age of the victim, 12 to 13 years;

2. the nature of the sexual acts the subject of the video files;

3. the number of videos;

4. the period of the offending, almost 2 years;

5. the fact that the material was stored across a number of devices;

6. any applicable statutory aggravating objective factors, identified above (s21A(2)(cb),(e),(eb),(k),(l)).

12/05/2016

RE PAUL BAMFORTH:

Count 3, H78550740 /51 – S 61M(2) Crimes Act 1900, Indecent assault person under 16 years of age – LPC: 67803

RE JULIA BAMFORTH:

Count 3, H78439722 /47 – S 61M(2) Crimes Act 1900, Indecent assault person under 16 years of age-T1 – LPC: 67803

107. A video file was retrieved from a silver ‘Passport HDD’ (exhibit X0002226975) named “IMG_0341.MOV”. This file is dated 12 May 2016.

108. The video depicts JULIA BAMFORTH, PAUL BAMFORTH and THE VICTIM seated on the lounge watching television. PAUL BAMFORTH films JULIA BAMFORTH as she masturbates THE VICTIM.

109. THE VICTIM was 12 years old at the date of the recording.

110. I have had regard to the Crown’s submission that the objective seriousness falls towards the lower end of the high range of objective seriousness.

111. For both offenders I find the objective seriousness falls just above the mid-range having regard to the following factors:

1. the respective roles of the offenders, with Mrs Bamforth masturbating the victim and Mr Bamforth filming;

2. the age of the victim;

3. the age differential;

4. the age of the victim relative to the offence provision, being 12 years old, 4 years below the provision’s ceiling;

5. the nature of the sexual offending, masturbation;

6. any applicable statutory aggravating objective factors, identified above (s21A(2)(cb),(e),(eb),(k),(l)).

12/08/2016

RE PAUL BAMFORTH:

Count 4, H78550740 /54 – S 66C(2) Crimes Act 1900, Aggravated sexual intercourse person >=10 & <14 years-SI – LPC: 51429

RE JULIA BAMFORTH:

Count 4, H78439722 /49 – S 66C(2) Crimes Act 1900, Aggravated sexual intercourse person >=10 & <14 years-SI – LPC: 51429

112. A video file was retrieved from a ‘HP Pavillion Laptop’ (exhibit X0003986111) named “IMG_4730.MOV”. This file is dated 12 August 2016.

113. The video depicts PAUL BAMFORTH instructing a naked JULIA BAMFORTH to perform oral sex upon THE VICTIM who is sleeping in another room. JULIA BAMFORTH (naked) enters the room and pulls down the shorts of THE VICTIM (who is still sleeping) and performs oral sex on THE VICTIM.

114. THE VICTIM was 12 years old at the date of the recording.

115. I have had regard to the Crown’s submission that the objective seriousness falls towards the lower end of the high range of objective seriousness.

116. For both offenders I find the objective seriousness just above the mid-range having regard to the following factors:

1. the respective roles of the offenders, with Mr Bamforth instructing Mrs Bamforth to perform the act;

2. the age of the victim;

3. the age differential;

4. the age of the victim relative to the offence provision, being 12 years old, at about the halfway point;

5. the nature of the sexual offending, fellatio;

6. the fact that the victim was asleep and therefore in a vulnerable state at the commencement of the offending;

7. any applicable statutory aggravating objective factors, identified above (s21A(2)(cb),(eb),(k),(l)).

13/08/2016

RE PAUL BAMFORTH:

Count 6, H78550740 /35 – S 61M(2) Crimes Act 1900, Indecent assault person under 16 years of age-T1 – LPC: 67803

Count 5, H78550740 /36 – S 66C(2) Crimes Act 1900, Aggravated sexual intercourse person >=10 & <14 years – LPC: 51429

RE JULIA BAMFORTH:

Count 5, H78439722 /52 – S 61M(2) Crimes Act 1900, Indecent assault person under 16 years of age-T1 – LPC: 67803

Count 6, H78439722 /56 – S 66C(2) Crimes Act 1900, Aggravated sexual intercourse person >=10 & <14 years – 51429

Video 1

117. A video file was retrieved from the ‘iPhone 11 Pro Max’ (exhibit X0004050503) of Paul BAMFORTH. This file is dated 13 August 2016 at 03.24am. The victim was 12 years old at the date of the recording.

118. The video depicts JULIA BAMFORTH and PAUL BAMFORTH engaged in sexual intercourse on a bed. JULIA BAMFORTH is naked and straddling PAUL BAMFORTH. PAUL BAMFORTH appears to be recording on his mobile phone.

119. PAUL BAMFORTH says, “Look who’s next to us” and the video pans to the victim laying immediately next to the co-offenders on the bed. The face of the victim is clearly depicted, the victim is fully clothed at this stage wearing a black t-shirt with blue shorts. This video ends.

738. It is also not my intention to impose sentences which are unduly harsh or crushing. I acknowledge that the sentences which I intend to impose, even after applying principles of totality, are greater than sentences which may be imposed for more serious crimes, including those with a maximum penalty of life imprisonment. Having carefully considered the matter I am satisfied that the sentences are appropriate in all the circumstances, reflecting the criminality involved and the large number of charges for sentence. Indeed, I have gone to great lengths in applying the concept of totality to do so.

STANDARD NON-PAROLE PERIODS NOT ADOPTED

740. Even though most of the findings made regarding objective seriousness would engage the standard non-parole periods, their adoption would, in my opinion, result in a crushing sentence in the case of both offenders. The indicative non-parole periods set out in the Tables have been adjusted accordingly.

SPECIAL CIRCUMSTANCES FOUND

741. Sections 44(2) and 44(2B) of the CSP Act provide that the non-parole period for either a single sentence or an aggregate sentence must not fall below three quarters of the term of sentence unless there is a finding of special circumstances and, in the event such a finding is made, reasons for doing so are recorded.

742. A finding of special circumstances is a discretionary finding of fact: R v El-Hayek [2004] NSWCCA 25 at [103]. The full range of subjective considerations can warrant a finding of special circumstances: R v Simpson (2001) 53 NSWLR 704 at [46]. It will be comparatively rare for an issue to be incapable, as a matter of law, of ever constituting a “special circumstance”.

743. For Mr Bamforth, although he has been in custody previously, that was almost 20 years ago. I find special circumstances on the basis that he has returned to custody after a long period of time in the community. I have also considered the impact of COVID-19 in determining his non-parole period. I have varied the statutory ratio just slightly on account of these factors.

744. I acknowledge the submission by counsel for Mr Bamforth that his prospects of rehabilitation would be improved if the statutory ratio was altered to allow him to receive further therapeutic treatment while on parole. I reject this submission as even the unaltered statutory ratio enable the offender to obtain whatever treatment he may accept and to assimilate himself back into the community.

745. Further I consider it unlikely that Mr Bamforth will ever have sufficient insight into the gravity of his debased offending or his responsibility to participate in any form of rehabilitation in the community.

746. For Mrs Bamforth, I consider that a greater adjustment to the non-parole period is justified for a number of reasons. First, this is the offender’s first time in custody. Secondly, by reason of the diagnosis made September 2023 her time in custody has been and may continue to be more onerous. She would warrant extra time on parole to participate in whatever rehabilitation or counselling is recommended to her.

747. It was submitted by counsel for Mrs Bamforth that I should have regard to the impact of the Covid-19 pandemic on imprisonment, that “prison time is now harsher than it was prior to the onset of the pandemic” due to its impact on physical visits, access to courses, counselling and rehabilitation programs, and extended cell lockdowns. I accept those submissions. This is another reason for the reduction in the non-parole period for both offenders.

SENTENCE

Paul Bamforth

748. Mr Bamforth please stand. You are convicted of the 46 offences to which you have pleaded guilty. For those convictions I sentence you to a term of imprisonment comprising a head sentence of 32 years imprisonment, commencing 26 February 2021, expiring 25 February 2053 with a non-parole period of 22 years 4 months imprisonment, which will expire on 25 June 2043, at which time you will be eligible for consideration of parole.

749. The backup charge (H78550740/12) is withdrawn and dismissed.

750. Consideration was given to sending the report by Dr Lennings to corrective services. In view of the fact that little or no weight can be attributed to the report, I have declined to do so.

Julia Bamforth

751. Mrs Bamforth please stand. You are convicted of the 46 offences to which you have pleaded guilty. For those convictions I sentence you to a term of imprisonment comprising a head sentence of 30 years imprisonment, commencing 26 February 2021, expiring 25 February 2051 with a non-parole period of 19 years 6 months years imprisonment, which will expire on 25 August 2040, at which time you will be eligible for consideration of parole.

752. I order that copy of the report by Lee Knight, Forensic Mental Health Clinican, dated 7 February 2023 be placed in a sealed envelope addressed to The Governor of the correctional facility where the offender is located. It should be marked “Confidential, only to be opened by the Governor”.

EXPLANATION OF SENTENCE TO OFFENDERS

753. Mr Bamforth, do you understand the sentence? You will be eligible to be considered for release on parole on 25 June 2043. Your head sentence will expire on 25 February 2053. I acknowledge that your sentence is harsher than that applied to your wife. There are good reasons for that based on sound legal principles including that you have been sentenced for the detain offences and that your wife’s non-parole period has been reduced more than in your case.

754. Mrs Bamforth, do you understand the sentence? You will be eligible to be considered for release on parole on 25 August 2040. Your head sentence will expire on 25 February 2051.

HIGH RISK OFFENDERS WARNING

755. I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006, which applies to “serious offences” including some of the offences for which you have been sentenced.

756. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention beyond the end of your sentence if the court considers you would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.

757. It is, therefore, in your interests to engage in rehabilitation opportunities whilst in custody.

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Table 1: Addendum to Remarks – Paul Bamforth –  P BAMFORTH TABLE

Table 2: Addendum to Remarks – Julia Bamforth – J BAMFORTH TABLE

I CERTIFY THAT THIS JUDGMENT AND THE ATTACHED TABLES ARE A TRUE COPY OF THE REASONS FOR SENTENCE HEREIN OF HIS HONOUR JUDGE WILSON SC.

T Behl-Shanks

Associate

Amendments

29 February 2024 - Addendum tables attached

29 February 2024 - Grammatical amendments

01 March 2024 - Grammatical amendment

Decision last updated: 01 March 2024