R v Bradshaw (a pseudonym)

[2021] NSWDC 476

District Court

New South Wales

Medium Neutral Citation:	R v Bradshaw (a pseudonym) [2021] NSWDC 476
Hearing dates:	23 July 2021
Decision date:	10 September 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 12 years with a non parole period of 9 years.
Catchwords:	CRIME - SENTENCE - maintaining a sexual relationship with a child.
Legislation Cited:	Crimes Act 1900 (NSW) s66EA(1)
Cases Cited:	Burr v R [2020] NSWCCA 282; Jervis (a pseudonym) [2020] NSWDC 396
Category:	Sentence
Parties:	Regina (Crown) Mr Bradshaw (a pseudonym) (offender)
Representation:	Ms M. Knowles (Crown Prosecutor) Mr M. Tedeschi AM QC with Ms C. Newman (Offender)
File Number(s):	2020/47551; 2020/47569
Publication restriction:	Non publication and suppression orders made of the names of the (x2) victims and the offender and of any other information which might, directly or indirectly, identify any of them.

Judgment

1. Mr Bradshaw (a pseudonym), you appear for sentence in relation to two offences (sequences 7 and 4), each being that, as an adult, you maintained an unlawful sexual relationship with a child (a different child being involved in each offence). The offence is also commonly referred to as the persistent sexual abuse of a child.

2. These offences are contraventions of s66EA(1) of the Crimes Act1900 (NSW).

3. The maximum penalty for each offence is imprisonment for life. There is no standard non-parole period.

4. The offending conduct captured by sequence 7 took place between 1 January 2014 and 19 August 2017, and before the amendments to s66EA(1) which came into effect on 1 December 2018.

5. The offending conduct captured by sequence 4 took place between 1 January 2016 and 8 February 2020. Therefore, some of that conduct took place before, and some after, those amendments.

6. However, the amendments (increasing the maximum penalty from 25 years imprisonment to life imprisonment; reducing the ingredient / foundational offences from 3 to 2; and possibly changing or altering the nature of the offence – cf Burr v R [2020] NSWCCA 282 per Johnson J at [104], with whom Leeming JA and Rothman J agreed) were retrospective (cf R v Jervis (a pseudonym) [2020] NSWDC 396 per Haesler SC DCJ at [29] – [30]).

7. The facts surrounding your offending are contained in a document entitled “Agreed Facts” signed by the Crown prosecutor on 16 March 2021; and you and your “legal representative” on 6 April 2021.

8. Before turning to those facts, it is necessary (because of a dispute between you and the Crown as to the proper construction of that document to which I shall refer later in these remarks) to set out the description of the offence in each relevant Charge Certificate.

9. The description of the offence in the Charge Certificate for sequence 7 was as follows:

“Between 1 January 2014 and 19 August 2017, at Lurnea, Bringelly And Elsewhere in the State of New South Wales, [you] did maintain an unlawful sexual relationship with Ruby (a pseudonym), a child then under the age of 16 years, namely, 7 to 10 years of age, in which [you] engaged in the following two or more unlawful sexual acts: Touching the complainant on the breasts, touching the complainant on the vagina, performing cunnilingus on the complainant, digital penetration of the complainant’s vagina, slapping the bottom of the complainant, requesting the complainant to touch [your] penis.”

10. The description of the offence in the Charge Certificate for sequence 4 was as follows:

“Between 1 January 2016 and 8 February 2020, at Lurnea, Bringelly And Elsewhere in the State of New South Wales, [you] did maintain an unlawful sexual relationship with Alice (a pseudonym), a child then under the age of 16, namely, between 5 and 9 years of age, in which [you] engaged in the following two or more unlawful sexual acts: Touching the complainant on the breasts, touching the complainant on the vagina, performing cunnilingus on the complainant, requesting the complainant to touch [your] penis."

11. The facts surrounding your granddaughter, Ruby, and which involve sequence 7 can be stated as follows.

12. You maintained an unlawful sexual relationship with Ruby between1 January 2014 and 19 August 2017 when she was aged between 7 and 10 years. You were 62 years old when the offending conduct commenced.

13. During this period, and as the relevant Charge Certificate particularises, you:

1. touched Ruby on the chest (the agreed facts state “breasts”);

2. touched Ruby on her vagina;

3. performed cunnilingus on Ruby;

4. digitally penetrated Ruby’s vagina;

5. slapped Ruby’s bottom; and

6. requested Ruby to touch your penis.

14. To assist you in your offending, you insisted that she should wear dresses; and became angry if she wore jeans.

15. And on each occasion you assaulted her, you would make Ruby watch pornography on your mobile phone.

16. The first sexual acts you committed as part of this unlawful sexual activity occurred between 1 January 2014 and 31 December 2014. Ruby was in Year 3 at school and aged between 7 and 8 years. You and she were in the garage of your home which you shared with your wife in the Sydney suburb of Lurnea. You touched Ruby on her “breasts” and vagina on the outside of her clothing. You made her look at pornographic magazines and videos. Unsurprisingly, you told Ruby not to tell anyone what had happened.

17. You did similar things to her throughout the course of that year.

18. Unlawful sexual activity continued in the next year, 2015, when Ruby was in Year 4 and 8 years old.

19. You would often collect her from school and take her to either your house or her aunt’s house. You would touch her on her “breasts”; and touch her vagina with your hands on the inside of her clothing. You would also lick her vagina. You used to engage in this unlawful sexual activity on most of the occasions that you picked Ruby up from school.

20. This unlawful sexual activity continued throughout 2015 and into the start of the next year when Ruby began Year 6 at school.

21. On occasions that you were assaulting Ruby in this manner in 2015, you would take your clothes off and make Ruby look at your penis and you would try to make her touch your penis.

22. The agreed statement of facts contains the following paragraph in connection with the unlawful sexual activity which you were carrying out in 2015:

“11 The offender told Ruby that he would tell her mother what was happening and that her mother wouldn’t talk to her anymore because he would tell her that Ruby was the one that was wanting to be doing this.”

23. It is not clear to me what this paragraph was intended to mean. At face value, it doesn’t make sense. It may have been intended to state that you threatened Ruby that, if she told her mother what was taking place, you would tell Ruby’s mother that she (Ruby) was the one who wanted to do these acts; and that Ruby’s mother then wouldn’t talk to her anymore. But in the absence of a clear agreed statement to that effect, I shall effectively put that paragraph to one side.

24. During 2015 and 2017 (when Ruby was in Years 4 and 6 at school) you would occasionally ask her to sleepover at your house.

25. One of those occasions took place between 18 August 2015 and 19 August 2017. Ruby was either 9 or 10 years old. She slept over at your house – as did her older brother and an older cousin.

26. In the morning after the sleepover, Ruby was in the kitchen with her brother and cousin. You came in, spoke to the three children – and then you moved in really close to Ruby and slapped her on her bottom.

27. Not long after this incident, Ruby started to say “no” when you would sexually touch her. This is set out in paragraph 16 of the agreed facts. Unlike paragraph 11, paragraph 16 is clear:

“Close in time to when the last assault occurred, Ruby started telling the offender no when he would touch her, and the offender threatened to tell her mother what was happening if she did not comply. Ruby was scared that if her mother knew, she would be in trouble.”

28. The last unlawful sexual acts constituting the persistent sexual abuse of Ruby occurred on an occasion between 1 April 2017 and 19 August 2017. Ruby was then 10 years old and in Year 6 at school. You and Ruby were alone at the home at one of her aunts who was at work. You took off your robe and Ruby’s clothes. You penetrated her vagina with your fingers and you performed cunnilingus on her. You tried to kiss her. You made her look at your penis and you tried to get her to touch your penis – which she did not do.

29. The facts surrounding your granddaughter, Alice, and which involve sequence 4 can be stated as follows.

30. You maintained an unlawful sexual relationship with Alice between 1 January 2016 and 8 February 2020 when she was aged between 5 and 9 years. You were 64 years old when the offending conduct commenced.

31. During this period, and as the relevant Charge Certificate particularises, you:

1. touched Alice on her chest (the agreed facts state “breasts”);

2. touched Alice on her vagina;

3. performed cunnilingus on Alice; and

4. asked Alice to touch your penis.

32. The first sexual acts you committed as part of this unlawful sexual activity occurred somewhere between 1 January 2016 and 23 December 2017. Alice was either in kindergarten or in Year 1 and was aged either 5 or 6 years. You took her to the garage of your house on some innocent sounding pretext but, once in the garage, you showed her pornographic videos on your mobile phone. Whilst Alice was watching those videos, you touched her vagina and “breasts”. She was lying down. Her pants were off and her top pushed halfway up her chest. You touched her “breasts” with your hands; and your tongue, lips and hand came into contact with her vagina – but not inside her vagina.

33. On other occasions (described as “a lot”) when you and Alice were in the garage, you used to try to make her touch your penis. You would try to make her put her hand on your penis – and she would tell you she didn’t want to do that. You would take her hand and try to pull it to you – but she would pull her hand back saying she didn’t want to do that.

34. The last time you touched Alice in the garage was sometime between 25 December 2019 and 8 February 2020 (and it would seem this was the last time you touched her at all) when Alice was 9 years old. You asked her to come with you to the garage; she was reluctant to go but you managed to persuade her to go to the garage (notwithstanding that your wife was present in the house). Whilst in the garage, you touched Alice’s vagina on the outside / top of her clothes. Alice was insistent with you that she didn’t want you to do this to her anymore.

35. The sexual acts which constituted your persistent sexual abuse of Alice were not confined to acts in the garage of your house.

36. There were occasions in 2018 and 2019 when Alice was in Year 2 or 3 when you would pick her up from school and drive her to the home of one of her aunt’s – when no one else was at home. You would touch Alice with your hands on her vagina (referred to in the agreed facts as her “private part”) – sometimes on top of her clothes; sometimes not. It would seem that she sometimes acquiesced; sometimes not.

37. On these occasions, you also touched her “breasts”, put her hands on your penis, and showed her pornography – just as you did when you were with her in the garage of your house.

38. There were also numerous occasions in 2019 when Alice was in Year 3 when you would pick her and one of her brother’s up from school. You would make Alice sit in the front passenger seat and her brother in the back seat. You would drive to a residential area and park the car. You would give Alice’s brother an iPad to distract him and then you would show Alice pornographic videos (presumably on your mobile phone). Alice would tell you that she didn’t want to watch those movies, but you were insistent. And just as you did in the garage and at Alice’s aunt’s house, you would try to put her hand on your penis; and you touched her “breasts” and vagina.

39. In early February 2020, each of the girls made complaints against you and the police were quickly involved.

40. You were arrested on 13 February 2020 and you have been in custody continuously since that time solely referrable to your offending against these two young children.

41. It is necessary for the Court to make an assessment of the objective seriousness of each offence for an offence of its kind.

42. Before doing so, but in that context, I need to refer to an area of significant disagreement between Mr Tedeschi QC who (with Ms Newman) appeared for you and the Crown prosecutor.

43. As I have already said, s66EA(1) provides that it is an offence for an adult to maintain an “unlawful sexual relationship” with a child.

44. Relevantly, “unlawful sexual relationship” is defined in subsection 2 as “a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period”.

45. Mr Tedeschi submitted on your behalf that you are “…to be sentenced on the basis of committing the threshold number of offences said to constitute the offence and not all of the particularised acts” (cf “Outline of Submissions on behalf of the Offender” dated 21 July 2021, at paragraph 11. (I pause to observe that that submission in that paragraph seems to be inconsistent with paragraphs 6 and 7 of the same document)).

46. As I earlier said, on 1 December 2018, the “threshold” number of offences was reduced from 3 to 2.

47. The Crown prosecutor has submitted in her oral submissions that I should look at all of the ingredient offences (i.e. as particularised in the Charge Certificate and as set out in the agreed statement of facts).

48. The submission made on your behalf seems to me to be consistent with [17-500] of the Sentencing Bench Book.

49. But that section of the Bench Book does not cite Burr v R in which, as I have already said, the Court of Criminal Appeal noted (without deciding) that the 2018 amendments possibly changed or altered the nature of the offence.

50. Although neither the Crown prosecutor nor Mr Tedeschi took me to the second reading speech or the explanatory memorandum which brought about the 2018 amendments, I have had regard to them nevertheless. It is clear (to me, at least) from the Attorney General’s second reading speech in the Legislative Assembly Hansard of 6 June 2018, and even more clearly from his speech in reply in the Legislative Assembly Hansard of 20 June 2021, that it was intended that the amendments would be substantial and give effect to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

51. I earlier referred to the obiter dicta of the Court of Criminal Appeal in Burr v R in which the Court noted that the 2018 amendments possibly changed or altered the nature of the offence.

52. Before the 2018 amendments, s66EA(1) was in the following form:

“A person who, on three or more separate occasions occurring on separate days during any period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years”.

53. After the 2018 amendments, that subsection has been in the following form:

“An adult who maintains an unlawful sexual relationship with a child is guilty of an offence”.

54. The subsection after the amendments is, on its face, substantially different. It focuses, not on “separate occasions” but on the maintenance of a relationship.

55. Accordingly, for that reason and for the reasons advanced by the Crown prosecutor in oral submissions, I shall take into account all of the particularised ingredient offences and the totality of the conduct set out in the agreed statement of facts in assessing the objective seriousness of the offences.

56. In terms of its objective seriousness for an offence of its kind, each offence is slightly below a mid-range offence.

57. Each offence is additionally aggravated because: it was largely committed in either your home or that of a relevant victim’s aunt; and it involved a gross breach of a position of trust.

58. It should not be necessary for me to say this, but apparently it is. The use of the word “additionally” indicates that those two considerations were not taken into account in my assessment of the objective seriousness of the relevant offence.

59. You did not give direct evidence at the sentence hearing. The balance of your subjective case was advanced through Justice Health and Corrective Services records; and the affidavits of your daughter, two sons, and a son-in-law.

60. You were arrested on 13 February 2020; and committed for sentence by the Local Court on 17 March 2021.

61. You first appeared in this Court on 8 April 2021, on which occasion a sentence hearing date was fixed for 23 July 2021 (the Court had many available dates well before that date; however, that date was fixed to particularly accommodate the Crown prosecutor and senior counsel then retained for you, both of whom had been involved in the matter for some time, including what I was told had been protracted plea negotiations – but neither of whom actually appeared on 23 July 2021).

62. The orders made on 8 April 2021 also contained directions for the service of any expert’s report on your behalf – but none was served.

63. Given the nature of the charges, your age, the fact that you have no prior convictions, and the contents of the affidavits from members of your family, the absence of any expert’s report is quite extraordinary. This was even more so given paragraph 11 of the affidavit made 13 July 2021 by your daughter (who is a childcare worker):

“Between 2014 and 2019, I noticed some changes in my father. He was becoming increasingly short tempered, and he always seemed to be frustrated. I thought that this was because he was frustrated because he was not enjoying retirement and had always been a very hard worker. He became somewhat withdrawn and I would frequently observe him staring into space or lost in his own thoughts for extended periods of time. I am not an expert but I genuinely believe that something in him has changed in the last 5 years and there is an underlying mental health issue”.

64. It seems to me that an expert’s report might have been of considerable assistance in the Court understanding why, so late in life, you have offended – and in this particular manner; and relatedly, in assessing your prospects of rehabilitation. The absence of such a report must have been a considered forensic decision; but I shall not speculate further about that - certainly not adversely to your interests. 

65. Such subjective material as is available is of a very minimalistic kind.

66. You are now 69 years old. As I have said, you were 62 to 65 when you committed the offence against Ruby; and 64 to 68 when you committed the offence against Alice.

67. I do not know where you were born; what your upbringing was like; what your education was like; or anything about your work history or any mental health or physical health history (other than what can be gleaned from the poorly copied Justice Health and Corrective Service records).

68. You are married – although, as a result of your offending, you are now separated from your wife.

69. You have 5 adult children, three of whom have provided affidavits on your behalf.

70. Each of the deponents of those affidavits rightly denounced your offending conduct against their nieces. They also spoke of what a loving and supportive father you had been to them and that upon your release they will continue to support you as best they can.

71. As I have said, you have no prior criminal record. But that is of considerably reduced significance in relation to offences against children.

72. You did not give direct evidence of your remorse. You have expressed remorse to your adult children who prepared the affidavits. But, in the absence of sworn evidence from you (and given the absence of any expert’s report explaining why you did these terrible things), I treat with some scepticism those second-hand expressions of remorse.

64. In these circumstances, I regard your prospects for rehabilitation as being, at best, guarded; and I am not satisfied on the balance of probabilities that those prospects would be enhanced by a longer period on parole. 

65. Both general and specific deterrence are fully engaged. And the Court of Criminal Appeal has repeatedly made clear that sexual offences against young children must be severely punished.

66. In formulating the sentence, subsection 66EA(8) is to be taken into account. It provides, as follows:

“(8) A Court (when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments) must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed”.

76. In this regard, the offences against Ruby would have engaged: s61M(2) of the Crimes Act - aggravated indecent assault (under 16 years) – the maximum penalty being 10 years imprisonment with a standard non-parole period of 8 years imprisonment; s66C(2) – aggravated sexual intercourse with a child 10 – 14 years old (under authority) – the maximum penalty being 20 years with a standard non-parole period of 9 years imprisonment; and s61N(1) – incite person under 16 to act of indecency with or towards the person – the maximum penalty being 2 years imprisonment.

77. In relation to Alice, the relevant statutory provisions were: s61M(2) of the Crimes Act – aggravated indecent assault (under 16 years) – the maximum penalty being imprisonment for 10 years with a standard non-parole period of 8 years imprisonment; s66A – sexual intercourse with a child under 10 years – the maximum penalty being life imprisonment with a standard non-parole period of 15 years imprisonment; s66DA – sexual touching, child under 10 years – the maximum penalty being 16 years imprisonment with a standard non-parole period of 8 years imprisonment; and s66DC(b) – incite child under 10 years to carry out sexual act with or towards the person – the maximum penalty being 7 years imprisonment. (The information in this and the preceding paragraph is taken from [6] of the "Crown Submissions on Sentence" (undated) which was not challenged by your counsel.

78. Each of the victims has provided the Court with a victim impact statement. Although each document is brief, its brevity does not diminish the powerful emotions which it contains. It is clear that each of your victims has been very substantially emotionally and psychologically damaged by your disgraceful criminal misconduct.

79. I intend imposing an aggregate sentence which will be backdated to the date of your arrest, 13 February 2020.

80. Accordingly, it is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence.

81. In relation to the indicative sentences, I note that you pleaded guilty at the first available opportunity and, accordingly, there will be a 25 per cent discount in relation to each of the indicative sentences for the utilitarian value of the pleas.

82. I shall not make a finding of special circumstances to vary the statutory ratio of the non-parole period to the aggregate head sentence because: I am not satisfied on the balance of probabilities that whatever physical disabilities you have cannot be adequately addressed in custody; I am not satisfied on the balance of probabilities that, even if you are in isolation whilst on remand, you will continue to be detained in that manner after sentence; and because (and notwithstanding your age) the mere fact that this is your first time in custody is insufficient to make that finding.

83. In relation to sequence 7, except for your plea of guilty, the indicative sentence would have been imprisonment for 10 years; after the discount of 25 per cent, the indicative sentence is imprisonment for 7 years 6 months.

84. In relation to sequence 4, except for your plea of guilty, the indicative sentence would have been imprisonment for 8 years 6 months; after the discount of 25 per cent, the indicative sentence is imprisonment for 6 years 4 months.

85. Mr Bradshaw, for the two offences of persistent sexual abuse of a child, I sentence you to an aggregate term of imprisonment of 12 years.

86. I fix a non-parole period of 9 years to date from 13 February 2020 and which will expire on 12 February 2029.

87. I fix a balance of 3 years to date from 13 February 2029 and which will expire on 12 February 2032.

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Decision last updated: 10 September 2021