R v Brown (a pseudonym)

[2024] NSWDC 618

District Court

New South Wales

Medium Neutral Citation:

R v Brown (a pseudonym) [2024] NSWDC 618

Hearing dates:

1 November and 17 December 2024

Date of orders:

17 December 2024

Decision date:

17 December 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 20 years with a non-parole period of 14 years

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child over 10 and under 16 — Persistent sexual abuse of a child pursuant to s 66EA — Maintaining an unlawful sexual relationship with a child —

— Indecent assault child under16 — Circumstances of aggravation — Incite person under authority to an act of indecency — Circumstances of aggravation — Child abuse material

SENTENCING — Guidelines for sentencing — Role of guidelines

SENTENCING — Mitigating factors — Plea of guilty

SENTENCING — Penalties — Imprisonment ­ — Life imprisonment ­— Approach to assessment of objective seriousness

SENTENCING — Relevant factors on sentence — Form 1 offences — Deterrence — General deterrence — Moral culpability — Objective seriousness — Multiple offences — What is a ‘crushing’ sentence — Special circumstances

SENTENCING — Subjective considerations on sentence — Age of offender — Health issues — Multiple mental disorders — Learning deficits in childhood

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2013] NSWCCA 115

Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58

Burr v R [2020] NSWCCA 282

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

GP (a pseudonym) v R [2021] NSWCCA 180

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Hillman v R [2012] NSWCCA 43

Hoskins v R [2016] NSWCCA 157

MAK v R; MSK v R [2006] NSWCCA 381

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59

MK v R [2024] NSWCCA 127

Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Burrell (2000) 114 A Crim R 207

R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41

R v Clinch (1994) 72 A Crim R 301

R v Fisher [2024] NSWCCA 191

R v Harris [2007] NSWCCA 130; 171 A Crim R 267

R v Herring (1956) 73 WN (NSW) 203

R v Holder; R v Johnston [1983] 3 NSWLR 245

R vO'Connor [2014] NSWCCA 53

R v RB [2022] NSWCCA 142

R v Sellen (1991) 57 A Crim R 313

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Smith (1987) 44 SASR 587

R v Wheeler [2000] NSWCCA 34

R v XX (2009) 195 A Crim R 38

RA v R [2024] NSWCCA 149

The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Towse v R [2022] NSWCA 252

Van Ryn v R [2016] NSWCCA 1

Xerri v The King [2024] HCA 5; (2024) 278 CLR 276

Category:

Sentence

Parties:

Gary Brown (a pseudonym) (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
S Hall SC with S Howell (for the offender)
K Ratcliffe (for the Crown)

Solicitors:
Morrisons Law (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s):

2022/325721

Publication restriction:

Pseudonyms have been used for the names of the offender and the child victims. Pursuant to s15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.

JUDGMENT

Introduction

1. When he was before the Local Court, Gary Brown accepted his guilt to a number of serious sexual offences committed against two of his stepdaughters, Emily and Jane. Each offence was serious, some were very serious indeed. The offending against Emily occurred between 1988 to 1992 when she was aged 10 to 14. The offending against Jane occurred from 2013 to 2021 when she was aged from eight to 15 years.

2. When the matter was before the Local Court, Agreed Facts were prepared and signed. The following offences were admitted; some are for sentence, others will be dealt with pursuant to s 33(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) Forms 1.

Complainant Emily

3. The offences against Emily:

• Sequence 19 – Sexual intercourse with child between 10 and 16 years: Crimes Act 1900 (NSW), s 66C(2).

• Sequence 20 – Sexual intercourse with child between 10 and 16 years: Crimes Act, s 66C(2).

• Sequence 54 – Aggravated indecent assault of a child under 16 years: Crimes Act, s 61E(1A).

• Sequence 25 – Aggravated incite a person under authority to an act of indecency: Crimes Act, s 61E(2A).

• Sequence 38 – Aggravated indecent assault of a on child under 16 years: Crimes Act, s 61E(1A).

• Sequence 29 – Aggravated incite a person under 16 years to commit act of indecency: Crimes Act, s 61E(2A).

• Sequence 31 – Aggravated incite a person under 16 years to commit act of indecency: s Crimes Act, s 61O(1).

• Sequence 33 – Aggravated incite a person under 16 years to commit act of indecency: Crimes Act, s 61O(1).

• Sequence 36 – Aggravated incite a person under 16 years to commit act of indecency: Crimes Act, s 61O(1).

• Sequence 35 – Possess child abuse material: Crimes Act, s 91H(2).

Offences to be taken into account on Forms 1

4. For Sequence 19:

• Sequence 21 – Aggravated incite person under authority to an act of indecency: Crimes Act, s 61E(2A).

• Sequence 37 – Aggravated indecent assault child under 16 years: Crimes Act, s 61E(1A).

5. For Sequence 54:

• Sequence 23 – Aggravated incite person under authority to an act of indecency: Crimes Act, s 61E(2A).

• Sequence 24 – Aggravated incite person under authority to an act of indecency: Crimes Act s 61E(2A).

6. For Sequence 38:

• Sequence 27 – Aggravated incite person under 16 years to commit act of indecency: Crimes Act, s 61E(2A).

• Sequence 28 – Aggravated incite person under 16 years to commit act of indecency: Crimes Act, s 61E(2A).

7. For Sequence 29:

• Sequence 30 – Aggravated incite person under 16 years to commit act of indecency: Crimes Act, s 61O(1).

8. For Sequence 31:

• Sequence 32 – Aggravated incite person under 16 years to commit act of indecency: Crimes Act, s 61O(1).

Complainant Jane

9. The one matter for sentence, Sequence 47, punishes Brown for his maintenance of an unlawful sexual relationship with Jane while she was a child aged under 16. The offence allows for consideration of all the admitted sexual activity with Jane during the relevant period. It is charged pursuant to s 66EA(1) Crimes Act. It can also be referred to as “persistent sexual abuse of a child”.

Offences to be taken into account on a Form 1

10. The following offences will be taken into account on a Form 1:

• Sequences 42, 44 and 46 – Incite a child who is under the age of 16 years to carry out a sexual act with or towards the person for the purposes of the production of child abuse material: Crimes Act, s 66DF(a).

• Sequence 7 – Produce child abuse material: Crimes Act, s 91H(2).

Maximum penalty and standard non-parole period

11. At the relevant times the following maximum penalties applied to the offences against Emily:

• Sexual intercourse with child between 10 and 16 years, s 66C(2) Crimes Act, had a maximum penalty of 10 years penal servitude.

• Aggravated indecent assault child under 16 years, s 61E(1A) Crimes Act, had a maximum penalty of 6 years penal servitude.

• Aggravated incite person under authority to an act of indecency, s 61E(2A) Crimes Act, had a maximum penalty of 4 years penal servitude.

• Aggravated incite person under 16 years to commit act of indecency, s 61O(1) Crimes Act, had a maximum penalty of 5 years imprisonment.

• Possess child abuse material, s 91H(2) Crimes Act, had a maximum penalty of 5 years imprisonment.

12. I apply the maximum penalties available at the time the offences were committed: Crimes (Sentencing Procedure) Act 1999 (NSW), s19(1). In doing so I must apply the sentencing patterns and practices at the time of sentencing: Crimes (Sentencing Procedure) Act, s21B.

13. Close attention to the maximums is required. They indicate how seriously Parliament, on behalf of the community, view offences of their type. They are important guides to the exercise of my sentencing discretion.

14. When I sentence for the s 66EA offence I note that the maximum penalty was increased to life imprisonment when the section was redrafted in 2018: Xerri v The King [2024] HCA 5; (2024) 278 CLR 276.

15. I must also take into account the maximum penalties for the unlawful sexual acts engaged in by the offender during the period the unlawful sexual relationship existed: Crimes Act, s 66EA(8). Here, for sexual intercourse with a child under 16 pursuant to s 66A Crimes Act, the penalty was 20 years imprisonment. An act of indecency offence pursuant to s 61O(1) Crimes Act, had a maximum of 5 years. An act of indecency offence pursuant to s 61M(2) Crimes Act, had a maximum penalty of 10 years.

16. I note however that where a large number of individual acts are said to establish the unlawful sexual relationship, the particular maximum penalty for an individual unlawful sexual act may not be of particular importance when all relevant matters are considered: R v Fisher [2024] NSWCCA 191 at [127].

Forms 1

17. When I sentence Brown for some of offences relating to Emily, I take into account other matters on a s 33(2)(b) Crimes (Sentencing Procedure) Act Forms 1. While I don't sentence for the matters on the Forms 1, they do here operate to increase the sentence. That increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, (2002) 56 NSWLR 146; [2013] NSWCCA 115 at [39]-[42].

18. There are also Form 1 matters attaching to the count involving Jane. Some care is required here, for while the same principles noted at [16] apply, that some of the unlawful sexual acts were recorded is linked to the seriousness of the principal crime. I need not tease out how these matters are taken into account, but I must take great care not to double count a matter that might increase the sentence were I to do so. I also note that the Form 1 child abuse material offence occurred outside the time period for the crime for sentence, and thus, requires more nuanced consideration.

Guilty plea

19. I will reduce each indicated sentence by 25% to reflect the utilitarian value of the guilty pleas. I will take care that that benefit is not eroded by the process of accumulation.

20. The guilty plea had some value in addition to its strictly utilitarian aspects. The complainants were spared the ordeal of giving evidence and being tested at trial. And the guilty pleas and the efficient manner in which matter was able to be resolved, indicates considerable cooperation with the course of justice: R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3] and [153].

Basic principles

21. A sentencing judge has an obligation to address 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: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51] (McHugh J). As I will be imposing an aggregate sentence, I must also nominate indicative terms for each offence, taking into account Forms 1 where applicable. I must assess the objective criminality of each of the matters for sentence individually. Each sentence indicted must be proportionate to what was done. An assessment of objective seriousness is essential in setting the parameters of an appropriate sentencing outcome.

22. Some of the matters relating to Emily were of very similar objective criminality and there is little to distinguish one example of one specific offence from the other of its type. For others, the more serious the offence, the impact of the physical acts and the greater the maximum penalty, the greater the indicated sentence.

23. So far as Jane is concerned, all of the various sexual crimes committed against her must be taken into account.

24. I do not find it helpful to express my opinion about the objective seriousness of an offence by nominating a point on the scale of seriousness by reference to a notional mid-point. To do so, with respect to those who think otherwise, creates an impression that sentencing involves a staged approach, or requires oscillation around, or additions and deductions from, some notional mid-point.

25. To the extent that others find such labels helpful, I agree with Brown’s submissions that the offence involving Jane was above mid-range.

26. Brown also submitted that the each of the instances of offending against Emily, fell into the mid-range, so far as each type of offence was concerned. That submission can be accepted.

27. Each of the offences against Emily were serious. The offending against Jane was a very serious example of what is already an offence so serious it carries a maximum penalty of life imprisonment.

28. There is a simple, and what should be an unambiguous reason, for why all these matters must be treated as objectively serious, there an absolute prohibition on sexual contact with a child. That prohibition recognises the profound harm exposure to premature sexual activity can cause.

29. Here, the offender had assumed the fatherly role in the life of two young girls. He professed to care for them and take an interest in their wellbeing, however he exploited each child for his own sexual interests. He thought only of himself, and in doing so, caused his stepdaughters immense harm.

Facts for sentence

30. The Agreed Facts are detailed and comprehensive. They were supported by photographs and video recordings, which were summarised and thus did not need to be tendered.

31. In this judgment I need to provide some details of what occurred. I have tried my best to keep the summaries as free of prurient content as possible. Descriptions of child abuse in a judgment should inform the public and help explain why the sentences were imposed and how they were formulated. In doing so a Court should, however, attempt to avoid where possible, repeating by publication what might otherwise be regarded as child abuse material.

The complainant Emily

32. Brown was born in 1963. In 1983 he commenced a relationship with a woman who already had two children. They included a girl Emily, who was born in 1977. By 1984 they were living as a family.

33. When Emily was nine years of age, the offender started coming into her room at night. He would do sexual things toward her that would scare and hurt her. As he did them he would say, "If you tell anyone I will hurt your mum or your brothers”.

34. In 1988 he began to take polaroid photographs of her in sexualised poses. He labelled those photographs. The first had the note: “[Emily] 10 & nine months”.

35. From 1988 the offender took photographs of Emily doing sexual and sexualised things. He labelled each photograph. The photographs were not taken in the same sittings. Those photographs and their labels enabled police investigators to isolate a number of incidents. They provide the evidence for each of the counts against Brown and the matters to be dealt with on Forms 1.

Sequence 19 – Sexual intercourse with a child between 10 and 16 years under authority

36. The offender put his penis in Emily’s mouth and photographed the act. He labelled the polaroid photograph: “[Emily] giving me head ten years & ten months”.

Sequence 20 – Sexual intercourse with a child between 10 and 16 years under authority

37. The offender had penile vaginal intercourse with Emily. The offender took a polaroid photograph of his penis partially inserted in Emily’s vagina. The label on polaroid is: “Me & [Emily] screwing 10 years and 10 months”.

38. Another polaroid photograph labelled: “Ten & ten months”, shows Emily lying on her back with her legs spread and underpants to side pulling her vagina open. There are four other similar photographs: Form 1 Sequence 21 – Aggravated incite person under authority to an act of indecency.

39. In 1988 and 1989, when Emily was 11, the offender would go into her bedroom nearly every night and would take photographs of her. The offender told Emily she had to do certain things in the photographs, or her mother and brothers would get hurt.

40. One such polaroid photograph shows a close up of her vagina and anus spread open by the offender's hand. Other photographs were taken of Emily posing naked: Form 1 Sequence 37 – Aggravated indecent assault child under 16 years.

Sequence 54 – Aggravated indecent assault of a child under 16 years

41. When Emily was 11 a polaroid taken from the offender’s point of view showing Emily holding the offender's erect penis with her tongue on the penis. Emily was not wearing a shirt in the photograph.

42. A polaroid photograph labelled “11 YEARS 11.M” shows Emily on a bed naked with her legs spread. The camera was focused on Emily’s vagina and anus. There is another similar photograph with the same label: Form 1 Sequence 23 – Aggravated incite person under 16 years to commit act of indecency.

43. There is a photograph showing Emily in a similar pose. Other photographs have the same label. Other unlabelled photographs from about the same period show Emily in sexualised poses: Form 1 Sequence 24 – Aggravated incite person under 16 years to commit act of indecency.

44. In January 1990 the offender’s relationship with Emily’s mother ended. He moved out of the family home. The offender still had access to Emily and her siblings.

Sequence 25 – Aggravated incite a person under 16 years to commit act of indecency

45. When Emily was 12 years old the offender took eight polaroid photographs of her, all labelled “2/6/90”. Seven of those photographs showed Emily naked or wearing underpants or a crop top. In one photograph Emily is naked posing bent forward leaning on bed pointing her bottom towards the camera and looking back at camera. The polaroid focused on anus area. Soon after the offender took three further polaroid photographs of Emily.

Sequence 38 – Aggravated indecent assault on child under 16 years

46. One of the photographs is of Emily bent over forward with the offender's hand on her buttocks spreading open her anus and vagina.

47. Another of the photographs shows Emily lying naked on her back on a bed with her hands behind her head, legs spread, and the camera focused on her open vagina and anus: Form 1 Sequence 27 – Aggravated incite person under 16 years to commit act of indecency. Three other similar photographs were labelled “23-6.90”.

48. The next month the offender took four further polaroid photographs of Emily. One photograph showed her with legs spread wide open and vagina and anus exposed. Others labelled: “7/7/90”. Three photographs show Emily wearing a pyjama top with the photographs focused on her buttocks or vagina and / or anus: Form 1 Sequence 28 – Aggravated incite person under 16 years to commit act of indecency.

49. Later that month, when Emily was 12 years old, the offender took 11 polaroid photographs of her wearing underpants and a bra in various stages of undress. The offender labelled ten of the photographs: “EARLY SUNDAY MORNING 8:00AM 29-7-90” and the other photograph “EARLY SUNDAY MORNING 8.00AM 29-7-90 [EMILY] IS POSSING (SIC) FOR ME”.

Sequence 29 – Aggravated incite a person under 16 years to commit act of indecency

50. When Emily 12 years old the offender took five polaroid photographs of her. Four were labelled “20-9-90”. One photograph showed Emily with her breasts, vagina and anus exposed, the photograph was labelled “20-9-90 ME & [EMILY] JUST AFTER WE MADE LOVE”. A second photograph showing Emily doing an identical act, but she was upset. Another showed Emily on all fours facing away from the camera with her legs spread. The camera was focused on her vagina and anus. One further photograph showed Emily standing naked in a bathroom holding her left breast.

50. In 1991 when Emily was 13 years of age the offender took three polaroid photographs and labelled the polaroids: “WED 3RD JULY 91”. They show Emily on her on a bed wearing either bra and / or underpants with her breasts and / or vagina exposed: Form 1 Sequence 30 – Aggravated incite person under 16 years to commit act of indecency.

51. Later, when Emily was 13 the offender took four polaroid photographs of her in various stages of undress. The polaroids have been classified as child abuse material. In one polaroid Emily is visibly upset.

Sequence 31 – Aggravated incite a person under 16 years to commit act of indecency

53. When Emily was 13 years old the offender took 11 polaroid photographs of her. The offender labelled them “31-8-91”. All 11 polaroids have been classified as child abuse material. In nine of the polaroids Emily is on a bed. The photographs depict her vagina and anus. In one photograph she is wearing a gold wedding band on her left ring finger. In another two polaroids she is in a shower naked.

54. On another date in 1991, the offender took four polaroid photographs of Emily. In one of the photographs Emily is wearing see-through underpants and a bra. In the second photograph Emily is naked in the shower. The remaining two photographs depict Emily in sexualised poses wearing only underpants. Between 10 and 13 October 1991 when Emily was 13 years of age the offender took a polaroid photograph of her wearing a lace bra and underpants with her leg up on a bed. The camera focused on her genital area.

55. Another photograph shows Emily with her legs pulled back and her vagina and anus exposed: Form 1 Sequence 32 – Aggravated incite person under 16 years to commit act of indecency.

56. The Agreed Facts also note some uncharged acts from 1991. After separating from his wife Brown stayed at his mother’s. During access visits, Emily would be made to sleep in the offender's bed with him. The offender had penile vaginal intercourse with her at that home. The offender made Emily have sex “a lot”. He had cameras set up which he used to take photographs of her.

57. When Emily was 14 years old the offender took a polaroid photograph of her sitting naked on bed with a towel wrapped around her hair.

Sequence 33 – Aggravated incite person under 16 years to commit act of indecency

58. In January 1992, when Emily was 14 years old, the offender took a polaroid photograph of her lying naked on her back on a bed with her legs open and her vagina and anus open. The next month the offender took seven polaroid photograph of her posing. They have all been classified as child abuse material. In three of the polaroids Emily is naked and in the remaining polaroid wearing underpants and a bra. In one of the naked photographs Emily is wearing a gold ring on her left ring finger. In another photograph Emily is shown on a toilet with her breasts exposed. She appears to be in pain.

Sequence 36 – Aggravated incite person under 16 years to commit act of indecency

59. In March 1992 the offender took a polaroid photograph of her laying on a bed naked with her legs spread open and her vagina and anus exposed.

60. Other similar photographs were taken of Emily when she was 14 years old.

61. In 1996 Emily made complaint to her fiancé about what the offender had done to her. She told him about the threats he had made to hurt members of her family if she told anyone.

62. Emily married her fiancé in 1997. Prior to the marriage the offender told her “I still have the photos of you”.

The complainant Jane

Sequence 47 – Persistent sexual abuse of a child

63. Sequence 47 involves a count of maintaining an unlawful sexual relationship with a child / Persistent sexual abuse of a child pursuant to s 66EA(1) Crimes Act. Between 18 March 2013 and 18 March 2021 when Jane was aged between eight and 15 years old, the offender maintained an unlawful sexual relationship with her.

64. There are also matters on the Form 1, Sequences 7, 42, 44 and 46, to be taken into account.

65. Jane was born in another country in 2005. Her mother visited Australia in 2004 and met Brown. They married in 2007. In 2008, when Jane was two or three, she came to Australia and lived with her mother and the offender.

66. The offender regularly engaged in the following unlawful sexual acts with Jane:

• Touching and / or rubbing Jane’s naked genitals on multiple occasions;

• Inciting Jane to adopt sexual poses, including exposing her naked genitals, towards him on multiple occasions;

• Masturbating toward Jane and ejaculating on her body on multiple occasions;

• Jane performing fellatio on him on multiple occasions;

• Pushing his penis against Jane’s vagina on multiple occasions;

• Penile-vaginal sexual intercourse on multiple occasions;

• Performing cunnilingus upon Jane; and

• Inciting Jane to masturbate toward him.

67. Specific instances of these unlawful sexual acts are set out in the Agreed Facts.

68. The unlawful sexual relationship began when Jane was eight years of age. The offender came into her bedroom. The offender got into her bed and said, “I want to try something”. He put his hand inside her underwear and rubbed the outside of her vagina. She did not say anything. After he got up, he said, “Don't say anything to your mum”.

69. Over the next couple of months when Jane was still eight years old, the offender came into her bedroom a few times and did the same thing.

70. A few months later while Jane was still eight, she was home with the offender and her mother was out, Brown showed her a pornographic video on his phone of a young female performing fellatio on an older male. The offender told her, “Watch this I want you to try and do this with me”. The child did not understand. The offender said, “I just want you to watch it”. Later he told her, “Don’t tell mum about the video”.

71. When the complainant’s mother was not home Brown showed Jane further pornographic videos. The pornography often depicted young Asian women performing fellatio or engaging in penile vaginal sexual intercourse on or with older Caucasian males. The offender would say, “This is what I want you to do to me”.

72. In 2015, when Jane was nine and home alone with the offender, the offender showed her pornography on his phone. He then took out his penis and said, “Suck on it”. Jane replied, “That's gross”.

73. The offender then had her assume what he told her was the “positions”, that is, to get on the bed on all fours in front of him. He instructed her to arch her back more or spread her legs more. She did what the offender said because she was scared. He ejaculated on her back. He wiped her back and said, “Go get dressed and act normal”.

74. Following this, the offender had her get into “positions” one or two times a week. Sometimes the offender would rub her on the outside of her vagina. The offender would wear a singlet and no pants. Sometimes the complainant would be naked during the “positions” or other times wear a t-shirt or her school shirt. At the end of the act the offender always ejaculated on the victim's back, stomach or vaginal area.

75. When Jane was nine and during a “positions” time on the bed the offender put his erect penis to Jane’s face and said, “Suck it”. She said, “No”. He persisted. She eventually performed fellatio on the offender. He ejaculated in her mouth. After this occasion the offender would make Jane perform fellatio on him in the bedroom. Most of the time the act would continue until the offender ejaculated.

76. In 2014 when Jane was nine the family went overseas for a short holiday. The offender positioned Jane naked on all fours on a bed. He was naked. He rubbed his erect penis against her vagina. He pushed his erect penis very hard against her vagina and ejaculated on her back. He said, “I want to put it ‘in’ and ‘act normal’”. On a number of further occasions while they were overseas, he made her assume the “position” and perform fellatio on him. On these occasions the offender continued to try and insert his penis into her vagina, but it would not go in.

77. After they returned home the offender arranged for her to watch pornography and perform fellatio and “positions” on the bed whilst he touched or rubbed her until he ejaculated. He continued to try and insert his penis in her vagina.

78. At the end of 2014, Jane said to the offender, “I don't want to do this next year”. The offender did not respond.

79. In 2017 Jane’s mother moved out of the family home. She and the offender shared custody of the children, including Jane.

80. Brown commenced proceedings in the Family Court of Australia in relation to custody of the children. At this time, he demanded more frequent sexual activity from Jane. If she did not comply, he would refuse her food and physically assault her. The offender would watch Jane in the shower and take photos of her in the shower using his phone.

81. During the sexual activity Jane would ask “When does this stop?” and “when will you leave me alone?” The offender would reply, “It's not forever”.

82. In early 2019, when she was 13 or 14, Jane’s mother wanted her to stay with her. The offender said, “No, because she helps me with the other kids, and she helps around the house so she should stay to help me”.

83. In December 2019, when Jane she was 14, the offender sent her a Snapchat message telling her to come to his bedroom. When she did, he locked the bedroom door. She started performing fellatio on the offender. After a while the offender said, “You're old enough … I want to put it in”. The offender pulled Jane onto the bed and took off her pants and underwear and sat her on his erect penis. She said, “It hurts”. He replied, “It’s just going to hurt for now and then it'll get better”. The offender moved her up and down and then took her off him and made her fellate him until he ejaculated in her mouth. The following day the offender said, “How do you feel now?” Jane said, “It feels uncomfortable”.

84. At a different time on that date the offender filmed a 30 second video of Jane engaged in sexual activity in his bedroom, acting at his direction. Jane was lying naked on her back on the bed masturbating, the offender said, “Honey that's hot”: Form 1 Sequence 42 – Sexual act for production of child abuse material, child under 16.

85. For the next few years, the offender would send Jane messages on Snapchat whenever he wanted fellatio or penile vaginal intercourse. Fellatio continued a few times each week. Penile vaginal intercourse occurred two to three times a month at various locations in the home. The offender sometimes wore a condom, and other times did not. He would often ejaculate on Jane’s body.

86. The offender often filmed himself having sexual intercourse with Jane using a GoPro, his mobile phone, or a video camera. The offender told Jane that when she was at school or with her mother, he liked to watch the videos of her performing sexual acts on him. The offender gave her lingerie to wear for him.

87. In January 2020 the offender filmed a 23 second video of himself engaged in sexual activity with Jane, who was then 14 years old, in his bedroom. In the footage Jane is on her hands and knees. The offender filmed a close up shot of her vagina and told her to use her fingers to spread her vagina apart: Form 1 Sequence 44 – Sexual act for production of child abuse material, child under 16 years. The offender was masturbating whilst this occurred.

88. Later in 2021 the offender filmed a 21 second video of himself engaging in sexual activity with Jane, 15 years old, in her bedroom. The offender had his penis in Jane’s mouth. He then ejaculated in her mouth: Form 1 Sequence 46 –Sexual act for production of child abuse material, child under 16 years.

89. In 2022 Jane told the offender she had had a boyfriend but that they had broken up. On numerous occasions the offender woke Jane in the middle of the night probing the victim for information about the relationship and her sexual activity with her boyfriend. The offender made handwritten notes in his diary about some of these conversations.

Behaviour after Jane turned 16

90. After she turned 16, the offender continued to have a sexual relationship with her. He had penile vaginal intercourse with her on the majority of days in the week, sometimes twice a day. On occasions he ejaculated inside her. As a result, the offender went to a chemist and bought her the morning after pill to take.

91. When Jane was in Year 12, Brown kept her home from school so that he could watch her. The offender installed a surveillance camera in her bedroom above her bed. He isolated her from her friends and her mother. Sometimes when Jane showered or used the toilet, the offender would watch her and take photos and / or video her: Form 1 Sequence 7 – Produce child abuse material.

92. On 21 September 2022 when was Jane 17, Brown became physically violent towards her. She was upset and crying. The next day she sent her mother a text about the offender's violence.

93. In late 2022, Jane made a complaint to her boyfriend. He told her she needed to tell her mother. Later while doing her HSC, she phoned her mother and said she did not want to go to the offender's home. She was crying and upset. She said, “I don't want to go back there. You don't know what he did … He rape me … daddy raped me”. When her mother asked Jane why she had not told her when it happened, Jane said, “I was scared. I thought I would not tell anyone till I turn 18”.

94. On 27 October 2022, Jane made complaint to a mandatory reporter at her school. The Police were contacted.

Search warrant

95. On 31 October 2022 Brown was arrested. Police executed a search warrant at his home. During the search a large amount of material was seized. Police located the following in the offender's bedroom:

• Safe containing digital media, Gopro, letters, sex toys, and lingerie.

• Significant amount of multimedia devices including; hard drives, SD cards, DVDs, tapes some of which were located in a second safe.

• In the wardrobe of bedroom 1; various lubricant products and children's costumes, external hard drive and numerous cameras and video recorders.

• Numerous writing books and diaries for 2022, 2021, 2020, 2019, 2018 and 2016. The books and diaries contained extensive entries in relation to the offender's sexual interactions with RY. Handwritten entries at the end of the 2019 diary dated “Wed 1st JAN 2020” through to “Mon 13 JAN 20” the entries include descriptions of 11 aggravated sexual assaults against Jane, including penile vaginal intercourse and penile oral intercourse:

1. On 7 January 2020 the offender made an entry, “postella –1 morning after pill $24.95”.

2. On 8 January 2020 the offender wrote, “she had pregnancy test – Clearblue came up negative was stressing all night”.

3. On 11 January 2020 the entry outlines the offender filming himself sexually assaulting Jane. On 5 May 2020 the offender wrote, “Punch periods” and on 19 April 2020 “[smiley face] dog & mission”.

• In a filing cabinet in the hallway numerous handwritten notes in relation to the complainants.

• In the loungeroom, a travel bag containing:

4. Multiple devices and over 100 colour polaroid photographs depicting Emily which have been classified as child abuse material: Sequence 35 – Possess child abuse material. These are the polaroid photographs described above. The earliest polaroids commenced in 1988 when Emily was ten years old through to 1992 when she was 14. The offender had possessed these polaroids for 34 years.

5. The travel bag also contained a DVD created by the offender on 29 October 2015 and labelled “[Emily]”. The DVD contained a compilation of a number of the colour polaroid photographs: Sequence 35 – Possess child abuse material.

• Various digital devices were located which contained recordings of the offender's sexual acts with Jane:

6. The earliest recordings were made in August 2016 and most recent recordings in September 2022. The recordings were filmed from a CCTV camera located in the top right corner of the offender's bedroom or from a GoPro worn by the offender or placed on a solid surface, or the offender's mobile phone.

7. On occasions the offender would get her to hold a selfie stick or set up video camera on a tripod at the end of the bed.

8. In a number of the videos Jane is crying as she is being sexually assaulted.

9. In one video as the offender is engaged in fellatio with Jane he said, “If you want dinner tonight you have to swallow”. In another video Jane asked the offender “Daddy why do you do this to me? Is it to teach me how to be a wife?”.

Objective seriousness

Offences against Emily

96. I have to focus on is the actual character of each incident. I can only sentence for the acts, the subject of a charge. But as the facts make clear no act occurred in isolation from the others and there were many acts that were never the subject of charges.

97. In assessing the objective seriousness of individual matters; the act or acts done, the character of the sexual assaults, and the degree of physical contact involved, is of significance. I must take into account; where the events occurred (the family home), the relationship of the offender to the child, and the gross breach of trust involved. The age of the child relative to the range encompassed by the offence is also relevant. As is the persistence in offending.

98. There was also the fact each event was recorded by polaroid photograph, an additional humiliation for the child. A humiliation he remined her of just before her marriage.

99. The acts were accompanied by threats to her, her mother, and brothers. She was regularly scared and hurt. There was a continuing state of coercion. That coercion, and the acts themselves, had the ongoing effect of ensuring her compliance and cooperation with what was being done to her.

100. In the sexual intercourse matters, the degree and nature of the acts of intercourse must be considered. So must be the fact that here, the offender exploited the child's youth and inexperience. He controlled every aspect of her life. He exploited his parental power – the abused trust expected of him and the authority he exercised over her.

101. However, it is the violation of the child, the violation of the adult / child relationship, and the presumed consequences that make all such matters serious, as these individual crimes undoubtedly were. It is accepted that no penalty other than imprisonment could adequately punish the offender for what had occurred.

Child abuse material

102. I have already taken into account as an aggravating factor that Brown filmed what he did to Emily. But he chose to keep that material; and he kept it for 34 years. He transferred some of the polaroids to DVD for ease of viewing. This possession was his undoing, as it helped prove the case against him, corroborating Emily’s accounts.

103. I accept the defence submissions that these photos were for his private use and were not distributed. That said, possession of child pornography, child abuse material, is a callous and predatory crime. What makes the crime callous is not just that it exploits a child, it is callous because, each time the material is viewed, the offender is reminded of and confronted with, obvious pictorial evidence of that exploitation and abuse, and the degradation it causes. Brown created each image. Each subsequent viewing of it, allowed him to reimagine the event depicted for his own deviant interests.

Offences against Jane – Maintain a sexual relationship with a child

104. An offender “maintains a sexual relationship” if there is a course of sexual activity, involving successive acts committed frequently enough to provide an element of connection and continuity so coherent that the sexual activity may be seen to be maintained by the perpetrator: R v RB [2022] NSWCCA 142 at [54].

105. The gravamen of the offence is maintenance of unlawful sexual relationship with child, not any of the identified “ingredient offences”: RA v R [2024] NSWCCA 149. The offender is to be sentenced for all his admitted behaviour that informs how a lawful relationship was transformed into an unlawful one and how that unlawful sexual relationship developed over time.

104. Sentencing for such matters requires a different approach to that involved in sentencing for a series of offences relating to a course of conduct, such as those relating to Emily. I am required to address the nature and extent of all the offending behaviour relevant to the unlawful sexual relationship: R v Fisher [2024] NSWCCA 191.

105. Again, the foundational premise, and one reason for the high penalties available and imposed, is; the absolute prohibition on sexual activity with a child.

106. Factors that bear upon an assessment of the objective seriousness or gravity of the offence were recently restated in RA. Here relevantly they include:

• The offender was omnipresent in the child’s life;

• So too was the unlawful sexual relationship which continued for many years from when Jane was eight until she turned 16;

• The offender was the child's stepfather and father of her sibling;

• The lawful relationship should have been one of trust or authority;

• The acts occurred in the child's home or the place she had gone for family access visits;

• There was a significant age and power differential between the offender and child;

• The first acts of oral intercourse occurred when the child was nine. Penile vaginal began when she was 14. The act hurt her. He was aware of the risk of pregnancy;

• The number of unlawful sexual acts was very high, and they occurred frequently;

• The nature of the unlawful sexual acts encompassed the gamut of sexual activity;

• The degree of physical contact degradation involved is of considerable significance as is the fact that the acts both persisted and escalated in seriousness;

• The fact the acts were accompanied by coercion;

• In addition to the threats and pressure not to reveal what was happening, the fact the offender sought the child's complicity in hiding what was occurring;

• Some acts were recorded but care must be taken as this matter has already been taken into account on the Form 1; and

• The unlawful relationship existed wholly or partly before the commencement of the relevant amendments, being 2018.

109. All of the admitted facts and other material tendered establish the nature of the unlawful sexual relationship Brown had with Jane. He never considered his role in her life was as her stepfather. He used Jane as a sexual object for his own personal gratification. That exploitation became worse and more frequent as Jane got older and turned 16. This was a particularly serious or gross example of this offence; an offence that carries the most serious maximum penalty available.

Victim impact

110. No Victim Impact statement (‘VIS’) was provided from by the complainant Emily. The absence of a VIS does not give rise to any inference that an offence had little or no impact on her: Crimes (Sentencing Procedure) Act, s 30E(5).

111. Jane did read her VIS. She said, “I felt I owed it to myself to be brave and share how being a child sexual assault victim has impacted my life”.

112. Her VIS served the very practical purpose of drawing to the offender's, the Courts, and the community’s attention, the personal and psychological harm cause by these crimes. And why severe sentences are imposed on offenders. I have no difficulty in accepting what Jane said.

113. She told the Court, “I have lived in fear of you. I dreaded the moments when you would come home from work, knowing something bad was going to happen … You make my life unbearable … I felt like I was screaming for help on the inside”. She told the Court how she had resorted to self-harm and even with a counsellor, that seeing his face makes her “feel absolute terror”. She spoke of how he had invaded every part of her life and “degraded her where she felt “worthless, like I didn't deserve to live”. She said how she was felt “trapped in the house” and how she was made to feel guilty for loving him as a father hoping that he would love her back in the way a father should love his daughter.

114. She is still vulnerable and scared with deep emotional scars. Her relationships have been impacted she looks back to her childhood and wonders what she missed out on, in particular “the feeling of growing up in a safe, loving, and secure home”. There will always be a part of her that carries deep “pain and trauma”. She spoke of the things Brown had taken from her including, “the simple joy of being a teenage girl with friends and a future full of hope”.

Criminal history

115. There are some matters on Brown’s criminal history, but nothing similar. He is not entitled to the leniency often given first offenders but in matters such as this, first offenders are rarely extended leniency for that reason. Once he began to offend against Emily, Brown was no longer of person of good character.

116. It is not suggested that any prior good character was of assistance in committing the offences: Crimes (Sentencing Procedure) Act, s21A(5A).

117. At common law, and now under s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999, the prior good character of the offender is a matter that may be taken into account in mitigation of penalty. However, there are some classes of offences where good character may carry less weight than others because they are frequently committed by persons of otherwise good character, including child sexual assault offences, where s 21A(5A) does not apply on the facts.

Subjective case

118. Brown did not give evidence. He wrote a letter to the Court. He wrote about his shame and said he was “deeply sorry and remorseful”. He said he now realises the “huge impact” his acts would have had. He refers to his receiving “a lot of treatment”. He says he is learning about what led to his offending. He claims to “now understand about [his] offending behaviour”. He promises to “work hard” in treatment and “keep learning”. He said that he wishes he had the help he now gets when he was young and that he is “trying very hard to become a much better person”.

119. It is hard to give any weight to these remarks. All I can say is these comments are too little and came too late.

120. His promise to continue in treatment must however be recognised. He has taken positive steps toward change and that ‘practical remorse’ must be recognised.

121. His family provided references. They speak uniformly of their shock and surprise, at the crimes he committed. They offer continued support noting, “he is still [our] brother”. It is hoped that support can continue until he becomes eligible for parole, as pro-social support will be required if he is to adjust to normal community life on release.

122. There is a letter indicting Brown is attending chapel at gaol.

123. Brown’s personal history is not controversial. He was born 1963. He grew up in large supportive family. His father was very strict and disciplined him severely. His mother remained in the home but was described as an “angry person”.

124. At school Brown had learning difficulties and poor comprehension skills. He left when he received his school certificate. He worked in heavy industry until 2022. He earned tickets as overhead crane driver. A work injury impacted on his capacity to keep working. And eventually had to stop work. He was in receipt of workers compensation payments at the time he was arrested. He still suffers from the effects of that injury and requires medication.

125. He married Emily’s mother 1983. He had children, and now grandchildren. He was with Jane's mother from 2004. She is from an Asian country. She had children, and they have children. They separated 2017 but shared custody of the children.

126. He is described as a socially anxious and immature, a person who has has always felt “different”. In custody will be eligible for sex offender programs but he will find participation in group sessions difficult. Disturbingly the reports indicate that he regarded Emily and Jane as “his girlfriends” and professed to love them. He never considered his role was that as their “father”.

Report – Ms Duffy

127. Ms Duffy’s report set out his attitude to the offending, which on any reading, justifies the epithet “disturbing”: pars [32]-[37]. Ms Duffy reports symptoms consistent with; Persistent Depressive Disorder, Social Anxiety Disorder; Alcohol Use Disorder, Cannabis Use Disorder, and traits consistent with Autism Spectrum Disorder (‘ASD’).

128. Ms Duffy, a very experienced forensic psychologist, appeared to struggle with providing expert opinion or explanation for Brown’s expressed lack of understanding of the role of an adult toward a child let alone the role of stepfather. Her opinion that Brown has ASD deserves exploration. But even if Brown does suffer from ASD, it cannot excuse or provide any mitigatory explanation for what was done to two young girls whose innocence was exploited and taken away by the offender's persistent exploitation of them.

Report – Mr Randall

129. Mr Randall, Brown’s treating psychologist, has been able to provide him with some treatment while he has been on remand. In his report, Mr Randall notes Brown has problems with intimacy and no real understanding of appropriate relationships with children and “no insight until commencing therapy”: par [19]. Since then, Brown has, “attained physical developmentally milestones, he appears to have failed to progress through emotional developmental milestones.”: par [23].

130. Brown presented to Randall as “an extremely labile individual, with an unsophisticated understanding of the world and relationships.”: par [37]. Mr Randall fears Brown “may [have] a deeper neurological difficulty”: par [39]. He says at par [42] the possibility Brown has ASD requires “further investigation”. He also says, “group-based therapy in custody … would be detrimental to him.”: par [48].

131. Mr Randall believes Brown has the following conditions; Depressive Disorder, Paedophilic Disorder, Cannabis Use Disorder and a possible ASD.

Report – Dr Wearne

132. Dr Wearne reports that Brown has a “long history of psychological distress” but no convincing evidence of cognitive impairment or developmental disability: par [16]. He found Brown did have some autistic traits, but his “limited social skills may be best explained by an enduring unstable personality structure”: par [32]. He reports Brown “has the capacity to understand the illegality of engaging in sexual activity with minors … his offending appears to be opportunistic rather than the result of cognitive and social cognitive impairments”: par [33]. His deficits can be addressed with treatment.

Mental health problems

133. Multiple mental problems can result in:

• An amelioration of the offender's moral culpability and the consequent reduction of the need to denounce the crime;

• The offender being an inappropriate vehicle for general deterrence;

• A significantly greater burden associated with a custodial sentence, which may, as a consequence of the mental condition, be far more onerous; and

• A reduction in the need for specific deterrence.

134. Brown’s problems, as revealed in the reports, to a degree deserve consideration and amelioration of penalty but they also reveal a possible greater need for the factor of protection of the community to be taken into account. This is particularly so if the impact of his Paedophilic Disorder persists, or if, paradoxically as Mr Randall suggests, the required long gaol sentence exacerbates underlying conditions or creates a situation where Brown is not motivated to engage in continued treatment: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

Ill health

135. The reports indicate Brown has a number of chronic medical and psychological conditions in addition to those noted above. He suffers from; anxiety, low self-esteem. He is solitary.

136. He has sleep apnoea. He uses a machine to help him sleep. That machine requires an electrical connection and as it makes a noise that would disturb cell mates’ sleep. Brown will have no choice as to whom he shares a cell with.

137. He has the following conditions that require treatment and medication:

• Hypertension;

• High cholesterol;

• Diabetes;

• Complications from gastroesophageal reflux;

• Lumbar spine issues – disc protrusion and advanced joint atrophy; and

• Chronic work related back pain.

138. He is not permitted to take opioid medications while in gaol. The analgesics available to him are not as effective for pain relief as those he could access in the community.

139. Mr Randall notes that Brown’s experience of custody is particularly onerous:

“[Brown’s] presentation, anxiety, and medical complaints suggests that he is a particularly vulnerable person. The custodial environment is a particularly difficult environment for the average offender … The custodial environment appears to be significantly exacerbating his already fragile and vulnerable mental health. Poor mental health is a factor in reoffending, and as such, subjecting him to a situation that increases this vulnerability, potentially has the impact of increasing his risk of reoffending.”: par [43].

140. A person cannot escape just punishment because of their ill health but I can, and will, take into account the extra burden for him during his custody by reason of his chronic and debilitating conditions: R v Smith (1987) 44 SASR 587. Ill health can justify a finding of special circumstances: R v Sellen (1991) 57 A Crim R 313.

141. The fact of his offending makes him more vulnerable, as many in gaol ease their own burden by inflicting violence on those they, often erroneously, regard as ‘worse’ criminals.

142. Courts do not estimate the lived experience of gaols. While in gaol Brown has no control over any aspect of his life including access to medical and psychological treatments.

143. He has been, and will be, subject or exposed to violence. He has, and will be, locked down in his cell; where he has to eat, the same place as he and his cellmates share a toilet.

144. These conditions are worse for those with underlying health conditions: R v Burrell (2000) 114 A Crim R 207 at [27]. While these factors warrant can warrant a longer period on parole and a finding of special circumstances, care needs to be taken not to double count mitigating factors. The sentence imposed and its non-parole period must be that which the circumstances of his crimes require.

145. Even while on protection, Brown has been assaulted in gaol. This is a matter I can, and will take, into account. When someone is assaulted in gaol, they, if serving a sentence, must remain in or be returned to, the very place they were assaulted. A person in custody has no freedom. They have no control over who they associate with. They have no control over who is assigned to share their cell.

146. We send people to gaol for community protection; we hold people on remand for community protection. People are not sent to gaol to be seriously assaulted or to leave gaol with an injury that they did not enter gaol with. A past assault can mean that they spend their remaining time in custody apprehensive of a future assault. That said, as the Court of Criminal Appeal made clear in R vO'Connor [2014] NSWCCA 53, only limited weight can be given to that one factor.

Remorse

147. MA, in his letter, and through his family’s references, expressed apology, remorse and regret. Ms Duffy wrote at [37]:

“[MA] appeared to understand that what he did was wrong although still was not able to comprehend the extent of the psychological damage he had caused the victim as well as to his own daughters whom he has not been able to contact since his arrest. He said that he was a ‘bad father’ and that he ‘ruined a lot of people's lives’.”

148. As I noted earlier, what he said was too little and came far too late for it to have any major impact on this sentence. But I do take note and take into account that Brown’s developing insight will assist in sex offender treatment and may make him less a risk of reoffending on release.

Structure

Totality

149. I must sentence for offences committed on two children. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender’s crimes.

150. As there will be an aggregate sentence, I am required to indicate an appropriate sentence for each offence and then structure the sentence so that the aggregate sentence is just and appropriate to the offender's crimes: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260]; Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]. In doing so, as I have indicated earlier, I must take into account the maximum penalty that then applied and current knowledge and sentencing practices relating to child sexual offences.

151. For the Emily matters, each indicated sentences will be made partly cumulative. Each matter involved a discrete act of criminality against the child victim. But each count had some common features. The purposes of sentencing apply to each offence.

152. There are a number of practical problems when sentencing for multiple offences: Van Ryn v R [2016] NSWCCA 1 at [228]-[230]. A simple arithmetic addition can sometimes lead to an aggregate, which is not called for. At the same time there needs to be public confidence in the administration of justice. The community should not be left with a perception that a person who commits a deliberate series of discrete offences, can escape punishment for the offences because they occurred during the course of criminal behaviour: R v Wheeler [2000] NSWCCA 34 at [36]-[37]; R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46]; Van Ryn v R at [228]-[230]; R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27]; R v XX (2009) 195 A Crim R 38 at [52].

A ‘crushing’ sentence

153. Sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or ‘crushing’ requiring a reduction in penalties to be indicated or moderation of any accumulation between the counts. The severity of a sentence is not simply linear. The severity of a sentence may increase at a greater rate than an increase in the length of a sentence, for example; a sentence of ten years has greater impact than a sentence of five years, so far as the punitive aspects of a sentence is concerned: R v Clinch (1994) 72 A Crim R 301 at 306; MAK v R [2006] NSWCCA 381.

154. All those considerations must be balanced. The ultimate aggregate sentence should not exceed what is called for in all the circumstances:  Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

155. The severity of a sentence should not operate to destroy prospects of rehabilitation and reform. An extremely long sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform.

156. What is a proportionate sentence, or what might be seen as a ‘crushing’ sentence can depend on the perspective of the observer; whether they are the victims, the community, an appeal court, or the offender: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; MAK v R; MSK v R [2006] NSWCCA 381.

157. These principles have greater application especially where the offending involves different complainants. Each complainant is deserving of separate consideration and personal vindication by the sentences imposed.

Special circumstances

158. The minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

159. The sentence will take into account relevant matters in mitigation, including Brown’s age, ill health, and his mental conditions, and his understandable state of anxiety and other vulnerabilities. His counsel Ms Hall SC submits that a finding of special circumstances should be made because Brown’s advanced age on releases and limited support means that more time will be necessary to allow him to adjust to normal life, in what will be a very different community .

158. I accept that submission. It is imperative Brown be given support and assistance on release but given the length of the sentences, he will have time to get all the assistance required. An additional reason for a greater period on parole is his ill health. There is thus some limited utility here in allowing a modest adjustment for special circumstances: Hoskins v R [2016] NSWCCA 157.

Submissions

161. I am indebted to Madam Crown, for her written and oral submissions, which I have sought to incorporate or address into this judgment.

162. Ms Hall SC, who with Mr Howell, provided comprehensive written and then oral submissions. Ms Hall SC spoke to the critical issues, which I trust I have addressed. Three critical mitigating factors were raised:

1. By the time he is released, Brown is unlikely to have access to any children or grandchildren;

2. Brown has voluntarily engaged and paid for psychological treatment and the process of rehabilitation has begun; and

3. Brown still has support from prosocial members of the community and too long a period in custody may erode their capacity to support him on release.

Other cases – pattern

163. I have had regard to statistics and the other cases to which I have been referred. A helpful table was attached to the offender’s submissions: MF1 2. The consistent application of principle must always be considered. There has been some guidance offered by appellate courts: R v Fisher; MK v R; RB v R [2023] NSWCCA 180; R v RB [2022] NSWCCA 142; RW v R [2023] NSWCCA; MK v R [2024] NSWCCA 127. As there are only a few s 66EA matters following the changes introduced in December 2018, there is, as yet, no pattern discernible other than that severe penalties are required to meet the purposes of sentencing that must apply to an offence that carries a maximum penalty of life imprisonment.

164. Other decisions of appellate courts and first instances are always welcome and help inform this sentencing exercise. However, each case and each offender are individual. Sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74].

Synthesis

165. A sentence should not destroy, or ‘crush’, all hope an offender has for a life on release, no matter how terrible his offending. If motivation to reform is lost there is no incentive to rehabilitate or engage in programs. At the same time what is ‘crushing’ is very subjective and it may depend upon the perspectives of MA, his victims, or the community.

166. Motivation while serving a sentence is important. Here there is no need for greater specific deterrence given length of sentence that must be imposed. For similar reasons only a modest special circumstances finding can be made, given parole period that would ordinarily apply absent such a finding. It must be modest, as matters in mitigation have already been given full weight in fixing the aggregate term.

167. General deterrence remains an important consideration, but theses offences occurred while heavy sentences imposed on child sex offenders were already well publicised. It is hoped the retrospective impact of the current punishment regime and the heavy sentences that must be imposed will be noted by others and deter further offending against children: Xerri v The King [2024] HCA 5; (2024) 278 CLR 276. It is hoped that greater awareness of the harms caused children will likewise cause potential offenders to pause.

168. In each matter for sentence today there is a community's expectation that offenders will severe suffer punishment. A proper sentence marks the Court's view of the seriousness of the crime and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]. Sentencing courts have an obligation:

• To vindicate the dignity of each victim;

• To express the community's disapproval of that offending; and

• To afford such protection as can be afforded by the State to the vulnerable against repetition of offending: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [52]-[58].

Orders

169. Each indicated sentence reflects a reduction of 25% for the utilitarian value of the guilty pleas. Where applicable, Form 1s have been take into account.

Indicated sentences

170. Indicated Sentences – Emily

171. Sequence 19 – Sexual intercourse with child between 10 and 16 years, s 66C(2) Crimes Act, plus Form 1: 3 years 4 months.

172. Sequence 20 – Sexual intercourse with child between 10 and 16 years, s 66C(2) Crimes Act: 3 years 9 months.

173. Sequence 54 – Aggravated indecent assault child under 16 years, s 61E(1A) Crimes Act, plus Form 1: 2 years.

174. Sequence 25 – Aggravated incite person under authority to an act of indecency, s 61E(2A) Crimes Act: 9 months.

175. Sequence 38 – Aggravated indecent assault child under 16 years, s 61E(1A) Crimes Act, plus Form 1: 1 year 10 months.

176. Sequence 29 – Aggravated incite person under 16 years to commit act of indecency, s 61E(2A) Crimes Act, plus Form 1: 1 year.

177. Sequence 31 – Aggravated incite person under 16 years to commit act of indecency, s 61O(1) Crimes Act, plus Form: 1 year 10 months.

178. Sequence 33 – Aggravated incite person under 16 years to commit act of indecency, s 61O(1) Crimes Act: 1 year 6 months.

179. Sequence 36 – Aggravated incite person under 16 years to commit act of indecency, s 61O(1) Crimes Act: 1 year 6 months.

180. Sequence 35 – Possess child abuse material, s 91H(2) Crimes Act: 2 years.

Indicted Sentence – Jane

181. Sequence 47 – Maintain sexual relationship with a child, s 66EA Crimes Act: 15 years.

Aggregate sentence

182. The aggregate sentence is 20 years with a non-parole period of 14 years. The sentence will commence on 31 October 2022. Brown will be become for eligible for parole on 30 October 2036. The balance of the sentence of 6 years commences on 31 October 2036 and the sentence expires on 30 October 2042.

Other

183. The Crimes (High Risk Offenders) Act 2006 (NSW) applies. I must advise you, MA, of the existence of that Act.

184. This Act applies to ‘serious offences’ including the s 66EA offence for which you have been sentenced. Your legal representatives can explain in more detail the significance of this legislation to you.

185. It means is that you could be subject to executive action not only after your non-parole period expires but also after the total sentence expires. That executive action could, if an order is made in the interest of the community, mean that you could be detained or subject to conditions after you have served your sentence. But it is not a matter that I can take into account in mitigation of sentence: Crimes (High Risk Offenders) Act, ss 5A, 25C.

186. You will also, on release, be subject to sex offender registration. Compliance with the rules and requirements of that regime is essential. If you do not comply you could be returned to custody.

**********

Decision last updated: 22 January 2025