R v BT

[2022] NSWDC 527

District Court

New South Wales

Medium Neutral Citation:

R v BT [2022] NSWDC 527

Hearing dates:

09 June 2022 & 28 October 2022

Date of orders:

04 November 2022

Decision date:

04 November 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify an aggregate term of imprisonment of 15 years with a non-parole period of 11 years

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child <10

CRIME — Sexual offences — Act of indecency – Victim <10

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Relevant factors on sentence — Objective seriousness

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Ayshow v R [2011] NSWCCA 240

Imbornone v R [2017] NSWCCA 144

MDZ v R [2011] NSWCCA 243

Muldrock v R [2011] HCA 39

Tepania v R [2018] NSWCCA 247

Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14

Category:

Sentence

Parties:

Rex (Crown)
BT (Offender)

Representation:

Tomislav Bicanic (Crown Prosecutor)
John Masters (Counsel for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Tony Cullinan Lawyer (Offender)

File Number(s):

2021/00006189 & 2021/00168995

Publication restriction:

(1) The offender’s name is suppressed

(2) No publication of the names of the victims or of any information which may enable their identities to be ascertained

JUDGEMENT on sentence

Introduction

1. The offender appeared for sentence proceedings in respect of six offences in the District Court of New South Wales sitting at Bega, on 9 June 2022. The hearing could not proceed to finality that day in the absence of proposed evidence of the accused’s mental health and by consent it was adjourned ultimately for further hearing on 28 October 2022. In the interim the matter could not proceed on the days appointed because of industrial action in Corrective Services, and there remained outstanding evidence to be tendered in mitigation of punishment.

The Offences

2. Sequence H80218984/1 alleges that contrary to s 66DC(a) Crimes Act 1900 the offender,

"Between 1 January 2020 and 31 December 2020, at Bega in the State of New South did intentionally carry out a sexual act toward TT, a child then under the age of ten years, namely eight or nine years".

The maximum penalty specified for this offence is imprisonment for seven years.

3. Sequence H80218984/7 alleges that contrary to s 66EB(2)(a) Crimes Act 1900 the offender,

"Between 1 January 2018 and 31 December 2020, at Bega in the State of New South Wales, did intentionally procure TT, a child under the age of 14 years, namely six, seven, eight or nine years, for unlawful sexual activity".

The maximum penalty for this offence is imprisonment for 15 years with a standard non-parole period of 6 years.

4. Sequence H80218984/6 alleges that contrary to s 66DC(a) Crimes Act 1900 the offender,

"Between 1 January 2020 and 31 December 2020, at Bega in the State of New South Wales, did intentionally carry out a sexual act towards TT, a child then under the age of ten years, namely eight or nine years".

The maximum penalty specified for this offence is imprisonment for seven years.

5. Sequence H80218984/9 alleges that contrary to s 66A(1) Crimes Act 1900 the offender,

"Between 1 January 2021 and 8 January 2021, in Corrimal in the State of New South Wales, did have sexual intercourse with TT, a child then under the age of ten years, namely nine years".

The maximum penalty for this offence is imprisonment for life with a standard non-parole period of 15 years.

6. Sequence H80218984/5 alleges that contrary to s 66A(1) Crimes Act 1900 the offender,

"Between 1 January 2019 and 31 December 2019, at Eden in the State of New South Wales, did have sexual intercourse with TT, a child then under the age of ten years, namely seven or eight years".

As with sequence nine the maximum penalty for this is imprisonment for life with a standard non-parole period of 15 years.

7. Sequence H79794020/1 alleges that contrary to s 61O(2) Crimes Act 1900 the offender,

"Between 1 February 2013 and 1 May 2013, at Bega in the State of New South Wales, did commit an act of indecency towards MS, a person then under the age of ten years, namely, seven years".

The maximum penalty for this offence is imprisonment for seven years.

The Pleas of Guilty

8. The offender pleaded guilty in the Local Court and thus Part 3 Div. 1A Crimes (Sentencing Procedure) Act 1999 is engaged. For each sentence to be identified the offender shall receive a discount of 25% applied to what would have been imposed but for the plea of guilty in accordance with s 25D(2)(a).

Pre-Sentence Custody

9. The offender has been in custody since his arrest on 8 January 2021. The aggregate sentence I intend to impose in accordance with s 53A Crimes (Sentencing Procedure) Act 1999 shall be ordered to commence on that date.

The Facts

10. There are statements of agreed facts signed by the offender, his solicitor, and the solicitor from the office of the Director of Public Prosecutions. The first deals with the offences against the offender’s daughter TT. The second deals with the offence against his stepdaughter, MS.

11. The offender and the victims’ mother formed a relationship around 2011 when MS was aged five. The relationship endured for ten years, with TT and four other children born to them. The family moved from home to home within the Bega area. Thus TT is half-sister of MS.

12. The offender was born in 1982 and will this year be 40 years of age.

13. The offending charged occurred in the period from 1 February 2013 when he was aged 30 and 8 January 2021 when he was aged 38. Five of the offences were against the complainant TT and one of them, the earliest in this date range, was against MS.

14. The offender’s misconduct was first revealed during the night before 31 December 2020 when TT was watching television with an aunt.  A commercial dealing with menstruation led to conversation in which the aunt said to TT that it was inappropriate for anyone to touch her genitalia, to which TT responded that her father was therefore inappropriate. She complained that the offender had tried to insert his penis into her anus and vagina, and when he could not he used his fingers to penetrate her vagina. She said this happened every day when she returned home from school according to paragraph [4] in the statement of agreed facts, but during the hearing the Crown announced that the case it presented was on the basis that this misconduct occurred regularly and not every day.

Sequence H80218984/1

15. This is the charge of intentionally carrying out a sexual act toward TT, then aged eight or nine years, it is a representative charge arising from conduct described in paragraphs [6] and [7] in the statement of agreed facts. At a point before Christmas 2020 in the offender’s home at Bega he had the victim enter his bedroom. He closed and locked the door and told her to lay on the bed and spread her legs out. He knelt at the end of the bed and stared at her vagina. The victim was clothed. The offender began to masturbate. The victim said,

“Dad stop, that’s not a good thing to do. I’m still a child”.

16. The victim brought her legs together and gently pushed the offender away.

17. Three other episodes of misconduct occurred. These are not charged but are the offences of which the charged conduct is said to be representative.

18. In the first of these, shortly before Christmas 2020, the victim was at the offender’s home at Bega, sitting on a corner lounge with her legs spread apart. The victim saw the offender staring at her vagina. She said,

“What are you look’n at Dad”?

19. The offender licked his lips. His lap was covered with a blanket and he was masturbating. The victim moved from her position.

20. After Christmas in 2020, after using the toilet, the victim went to her room and lay down. The offender entered the room after her. She fell asleep but woke to her pants being moved across by the offender exposing her vagina. She felt him breathing on her vagina.

21. On the third occasion in 2020, shortly after the victim and her family returned to live with the offender, she was in the offender’s room laying on the bed in her pyjamas. He told her to rub her vagina as he rubbed his groin to indicate where she should do so. She complied until her vagina bled, as the offender stood and watched.

Sequence H80218984/7

22. This is the charge of procuring TT then under the age of 14 years for unlawful sexual activity.  It occurred when she was aged six or seven years. The offender displayed his penis to her and said,

“I have a dick and you have a vagina”.

23. He taught her sign language for,

“Pussy, lick, eat and suck”.

24. Her began to masturbate before her.

25. In 2020 in the offender’s house he showed the victim pornography videos. He was alone with her in his bedroom with the door closed. The images were of naked boys and girls having sex. She saw a penis penetrate a vagina and the participants using dildos. She saw females fondling and licking vaginas. Whilst showing the videos the offender masturbated to ejaculation.

26. On another occasion the offender showed her pornography depicting a teddy bear and a container of fluid which she referred to as cum. She understood the term from what the offender had shown her of his ejaculate.

27. The Crown relies upon these instances as the offence upon which sentence is to be determined.

Sequence H80218984/6

28. This is the offence of intentionally carrying out a sexual act towards the victim when aged eight or nine.

29. In 2020 the victim was in year three at school. The offender masturbated before her in the shower until ejaculation, against her plea that he should stop.

Sequence H80218984/9

30. This is the charge of sexual intercourse with TT when she was nine. This was the last occasion of sexual misconduct toward this child. The victim and her family were staying with an aunt in Corrimal. She was playing on a bed down stairs when the offender called her to come to him upstairs. There he told her to suck his penis. He sat on a chair and pushed her head toward his penis which entered her mouth. This stopped when she pulled it from her mouth.

Sequence H80218984/5

31. This is the offence of sexual intercourse with TT when she was seven or eight years of age. She complained of continual bleeding from her vagina because the offender persistently penetrated her with his finger. The last time this occurred was in 2019 when they were living in Eden.

32. The Crown relies upon the ongoing course of conduct upon which the offender engaged at the expense of TT. The offences began in Eden where they were living at the time and continued when he moved to Bega. Every day after school he masturbated in front of her and told her not to tell anyone. It ceased when she made her disclosure.

33. The offender was arrested for the offences against TT on 8 January 2021. He was interviewed and denied the allegations, asserting that the victim had made up stories, jealous of the resumption of the relationship between the offender and her mother.

Sequence H79794020/1

34. This sequence is the offence of an act of indecency toward MS, his stepdaughter, at Bega in 2013, when she was aged seven.

35. Within the first weeks of their occupation of a house in Bega purchased by the offender’s father, MS was one evening alone in her bedroom with the door open. The room was at the front of the house directly opposite the lounge room. The offender was in the lounge room about five metres from her with his head facing toward her. He pulled his shorts down and began to masturbate as he stared at her as she was on her bed. In the first two weeks at this address the offender masturbated frequently before her. He walked into her room wearing shorts, with his penis exposed out the side of his shorts.

36. The victim disclosed this to her mother but was not believed. She did not feel safe and ran away to live with her grandparents where she has remained to the present time. She reported the matter to police on 5 May 2021 after which he was charged.

37. The offender acknowledged his offences by his pleas of guilty and adoption of the statements of agreed facts. Moreover, he provided a handwritten document written to his solicitor, Exhibit Two, in which he expresses his deep shame, embarrassment, and sorrow for his misconduct. He acknowledges that he must stop the use of alcohol and drugs and asserts that he would not have so behaved if sober and clean. He promises to remain sober and clean in custody and will never commit acts such as these again.

38. In the sentence assessment report it is suggested that his attitude appeared to be self-serving since he alleged disgust but blamed alcohol for his actions. He acknowledged the harm he caused but did not seek assistance to manage his use of alcohol and drugs to which he attributes his behaviour.

39. According to the psychiatrist who assessed him, he said he regretted his actions and wanted to take full responsibility but seemed to have limited insight into the impact of the offending and attributed his behaviour to substance abuse. He reported a history of hypersexuality, that he watched pornography daily, and that the offending occurred due to his excessive pre-occupations with sexual activity, high libido, and substance intoxication.

40. The impact of his offending was revealed in a victim impact statement read by the victim’s mother on behalf of TT. Of note is that the child now adopts her mother’s maiden name rather than her father’s name.

41. According to the victim she suffered cruel utterances at her school when other children said nasty things to her face and online, with a song about her father taking her virginity. She was shown pornography and learned aspects of sex that a child should not know. She was prevented from spending time with her mother and extended family to obviate the risk that she would disclose what occurred to her. She spoke of her fear from what the offender did to her, and that her heart is crushed because he ought to have been there to protect her but left her to protect herself from him.

42. The victim impact statement reflects what the courts have come to know about the impact of this type of behaviour upon such victims. It is accepted that the psychological impact of these crimes continues well after the commission of the crimes. It is appropriate that the offender is faced with the impact of his misconduct through this document, and that the victim was given the opportunity to confront him with her perception of the impact of what befell her.

43. There is no evidence that would allow a finding that what she has suffered is greater than what is accepted to be the common experience of such victims. The psychological impact is no doubt significant for her but it could not be said to be substantial. In the absence of evidence from a healthcare specialist there is no basis to make findings beyond this conclusion.

44. I make clear that the evidence of the victim impact statement is not considered as aggravating the offending or to increase what is appropriately proportionate punishment for this offender, but it once more provides the court with insight into the effect of this type of offence upon the immediate victim and those connected with her.

Assessment of Objective Seriousness

45. The court is required to assess the objective seriousness of these offences with reference to Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999 wherein are the provisions for standard non-parole period offences. Johnson J provided guidance in Tepania v R [2018] NSWCCA 247 for both standard non-parole period offences and those that do not have a standard non-parole period specified for them. The provisions introducing standard non-parole periods were amended to their present form after the decision of the High Court of Australia in Muldrock v R [2011] HCA 39. Dealing with this legislation his Honour identified the following propositions from the legislation as amended in 2013 with references to the passages in Muldrock v R ibid where the propositions were advanced:

1. S 54B applies wherever a court imposes a sentence of imprisonment for a standard non-parole period offence and must be read as a whole.

2. The standard non-parole period is a matter to be considered by a court as part of a single-stage process when determining sentence, without limiting the matters otherwise required or permitted for consideration in the process of instinctive synthesis.

3. The concept of a standard non-parole period, as explained in s 54A(2), is abstract, including only the objective factors affecting the relative seriousness of the offence in the middle of the range of seriousness.

4. When construing s 54B as a whole, s 54B(6) does not require the court to identify the extent to which the seriousness of the offence in question differs from the abstract, notional, or theoretical offence referred to in s 54A(2), namely, one in the middle range of objective seriousness assessed upon the objective factors affecting the relative seriousness of the offence. It is not necessary to compare or contrast the actual offence with the abstract.

5. Assessment of the objective gravity of the offence is necessary as required at common law, but the sentencing Judge is not required to identify features of the offence which were considered or not when assessing the role of the standard non-parole period in the particular case.

6. The sentencing court is to consider all factors which bear upon the process of instinctive synthesis in the case including the two legislative guideposts constituted by the maximum penalty and the standard non-parole period.

46. After reference to the assistance given in the second reading speech and in the Explanatory Memorandum for the amended provisions his Honour continued,

"[112]   In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence…

[113]   … In Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14, it was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability.

[114]  In Muldrock v The Queen (at 140 [58]), it was observed that the applicant’s limited moral culpability may mean that retribution and denunciation did not require significant emphasis".

47. The assessment of objective seriousness of an offence is a matter of judgement upon which minds might differ. It is often difficult to be precise in the specification of the level of objective seriousness, however upon my assessment of the material I have come to the following for the reasons given, considering the nature of the misconduct described in the statement of agreed facts and factors identified.

48. The first five charges relate to the victim TT; the offences were committed in the ongoing course of conduct described in the statement of agreed facts, from when the offender lived in Eden through to when he moved to Bega.

1. For the offence of Intentionally carrying out sexual acts toward TT, sequence H80218984/1 – slightly above mid-range of objective seriousness:

1. The disparate age of the accused at 38 years when the victim was aged nine.

2. She was his daughter.

3. The offending was in her home where she was entitled to the safety it would have otherwise provided her: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

1. The offender abused the trust implicit in their relationship: s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

2. This is a representative offence, in the context of the other offences upon which the offender engaged in the course of conduct. I have considered the additional misconduct noting that:

1. There are admissions to the commission of other offences and that the offence charged is representative by way of the statement of agreed facts.

2. This evidence is admissible not to increase an otherwise proper sentence but to rebut any suggestion of isolated, spur-of-the-moment lapse, or out of character misconduct. Ordinarily, the submission comes from the offender and the Crown adduces evidence to rebut.

2. For the offence of intentionally procuring TT for unlawful sexual activity, sequence H80218984/7 – about mid-way between middle and the upper end of objective gravity:

1. The age of the victim disparate from that of the offender.

2. The victim is his daughter.

3. The offending occurred in her home: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

4. The offender abused her trust: s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

5. The potential for if not the actual sexualisation of the child at such a young age.

3. For the offence of intentionally carrying out sexual acts toward TT, sequence H80218984/6 – about mid-range of objective gravity:

1. The age of the victim.

2. She is his daughter.

3. The offending was in her home: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

4. He abused her trust: s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

4. For the offence of sexual intercourse with TT (fellatio with a mild degree of coercion), sequence H80218984/9 – above mid-range of objective gravity:

1. The age of the victim.

2. She is his daughter.

3. The offending was in her home: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

4. He abused her trust: s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

5. For the offence of sexual intercourse with TT (digital penetration of her vagina), sequence H80218984/5 – above mid-range of objective gravity at a level above that for sequence 9:

1. The age of the victim.

2. She is his daughter.

3. The offending was in her home: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

4. He abused her trust: s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

5. This occurred on multiple occasions, and the victim consequently bled from her vagina because of the intrusion.

49. The sixth offence was against his stepdaughter MS. The offence of act of indecency toward MS, sequence H79794020/1 – is within mid-range of objective gravity bringing to account that this also occurred in a course of ongoing misconduct, and the following facts:

1. The victim’s age.

2. She is his stepdaughter.

3. The offending was in her home: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

4. He abused her trust: s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

50. It is also an aggravating factor that the offender has a record of antecedents with which I shall deal later, but not to increase the objective seriousness of the offences nor to increase otherwise proportionate sentences.

51. It does not follow that the sentence for each offence and the non-parole period where specified is reached upon a calculation drawing only upon these assessments. There must be considered all relevant factors, including the assessment of the offender’s moral culpability in synthesis to achieve indicated sentences and an appropriate aggregate sentence. As is usual, the sentences identified as appropriate will be somewhere below the point at which the objective seriousness might otherwise place the sentence on the scale of sentencing options specified as maximum penalties and standard non-parole periods.

The Offender

52. The offender was born in 1982 and will reach his 40^th birthday later this year.

53. He chose not to give evidence, other than by way of his unsworn or unaffirmed letter tendered by consent, and the history attributed to him by the author of the Sentence Assessment Report and psychiatrist Dr Sam Calvin, without the opportunity to be tested, his representations illuminated the various facts before the court. The circumspection expressed by Wilson J in Imbornone v R [2017] NSWCCA 144 is apposite here.

54. His record of antecedent offences does not include any sexual offences of any description. Many of his appearances were in Children’s Courts, the first of them in July 1998. His offences in those courts and adult courts were offensive language, offensive behaviour, demanding property with menaces, damaging property, larceny, drive conveyance without the consent of the owner, attempt to steal motor vehicle, serious driving offences, common assault, intimidation, assault occasioning actual bodily harm, infliction of grievous bodily harm, and possess prohibited drugs.

55. Before his present incarceration he was in gaol for other matters for a total of about two years and two months.

56. When he committed two of the offences against TT (intentionally carrying out sexual acts toward TT sequence H80218984/1 and fellatio sequence H80218984/9) he was subject conditional liberty under a Community Corrections Order, imposed on 29 September 2020 for intimidation and common assault.

The Sentence Assessment Report

57. This refers to his relationships with four women, each of whom have borne him children aged between 5 years and 21 years. His relationship with TT’s mother came to an end about six months before the offences were disclosed.

58. Employment has been sporadic throughout his life.

59. He is said to have been self-serving in his attitude to these offences. He blamed intoxication for his misconduct. Though he acknowledged his harm to the children, he sought no assistance for his misuse of substances and alcohol, to which he attributes his misconduct. He blamed his failure to do so upon addiction. He said he cannot control his behaviour when intoxicated.

60. He denied sexual attraction to children. He was assessed by a Corrective Services senior psychologist from Nowra Correctional Centre, Ms Grace Maguire, with an average risk of re-offending. His dynamic risk facts are said to be hostility toward women, general social rejection, impulsivity, poor cognitive problem solving and deviant interests. It is noted that he is currently medicated for ADHD and bipolar disorder.

61. According to the Level of Service Inventory – Revised he is a medium to high risk of re-offence.

62. The statement of agreed facts includes particulars of the victim’s ages, and that he caused bleeding when he digitally penetrated TT. He denied to the author of this report that his victim was less than eight years of age or that he caused her to bleed as alleged. These denials I put to one side considering the content of the agreed facts which the offender signed.

63. He is willing to undertake intervention and community service. He previously engaged in appropriate intervention under supervision.

The Report from Dr Sam Calvin

64. Dr Calvin is a forensic psychiatrist who wrote his report on 7 October 2022, well after the events leading to the prosecution, drawing upon clinical assessment via a video conference that same day.

65. He told Dr Calvin that he is currently single, with nine children from four partners. He was diagnosed with Attention Deficit Hyperactivity Disorder when a teenager for which he was medicated. He had long term difficulties with attention and concentration, hyperactivity and impulsiveness. He reported a significant history of mood instability, excessive anger, impulsivity, chronic low mood, and repeated self-destructive behaviours. These worsened after relationships broke down. He was prescribed antipsychotic medication. He reported a history of anxiety and panic attacks.

66. He began using cannabis at 15, drank alcohol to excess, and extended to MDMA and methamphetamines which he injected twice daily, buprenorphine, morphine, LSD, quetiapine and Xanax. He reported psychological dependence, high tolerance, intensive cravings, and social dysfunction.

67. His misuse of alcohol and drugs increased before his arrest following his relationship breakdown. Abnormal liver function is noted in his medical file from alcoholism.

68. There is no history of mental illness in his family of which he is aware. He is the youngest of three siblings. He had a good childhood and stable home. Due to misbehaviour he was expelled from school in year eight. He has no formal work history. He assisted the community in clean-up activities after severe bush fires.

69. His longest relationship was the most recent with TT’s mother. It was for eight years, marred with significant substance abuse. He has a history of domestic violence.

70. He denied vehemently any sexual deviance or paraphilia.

71. He claimed regret for his actions and wanted to take full responsibility for them. He showed little insight into the offences, attributing blame to his misuse of substances. His explanation for the offences was hypersexuality, against his resort to pornography most of each day and intoxication.

72. Dr Calvin referred to the findings by Dr Sathish Dayalan who assessed the offender on 8 March 2022 for Justice Health. Dr Dayalan noted deterioration in his mental health with exacerbation of symptoms reported by the offender, with flashbacks of someone killed in gaol and self-harm when he scratched himself and punched walls. Dr Dayalan formed the view that he had features of adult Attention Deficit Hyperactivity Disorder against his substance use disorder and exposure to trauma. He prescribed medication.

73. Dr Dayalan reviewed the offender on 24 May 2022 and noted an increase in anxiety attacks. He adjusted the medication.

74. Dr Dayalan is attributed with the view that the offender had features of adult ADHD against the background of substance use disorder and exposure to traumatic events, which appears to be a reference to the flashback of someone killed in gaol. There is no further information proffered regarding that.

75. Dr Calvin also had access to the offender’s antecedent record, the Sentence Assessment Report, and the assessment by Ms Maguire, psychologist. He noted her opinion that considering the prolonged offending timeline and behaviours, and notwithstanding his denial of sexual interest in pre-pubescent children, it is likely that he had deviant sexual interests.

76. Against this material Dr Calvin offers the following:

1. The offender has a complex psychiatric history…with problems suggestive of early development pathology, multiple substance addictions and personality disorder.

2. The primary issue is a significant substance use disorder.

3. There is a clear history of developmental pathology with features of Attention Deficit Hyperactivity Disorder, which caused behavioural issues and early maladjustment, apparently developing low self-esteem and identity disturbances, all laying a foundation for a personality disorder and early-onset substance use.

4. The history of self-destructive behaviours, intense anger, low self-esteem, chronic low mood and feelings of emptiness, identity disturbances with persistently unstable self-image, impulsive behaviours, and relationship dysfunction with fears of abandonment indicate an underlying Antisocial and Borderline Personality Disorder, but this must be further confirmed in therapy.

5. Previously suspected Bipolar Disorder is unlikely, since the mood symptoms appear to be the product of recreational use of potent psychoactive substances.

6. There could be an underlying Paedophilic Disorder considering the prolonged timeline of offending but this needs to be confirmed after sentencing.

7. There is no clear evidence of a major mental illness.

8. ADHD and an underlying personality disorder probably contributed to a dysfunctional lifestyle and substance addiction, which in the background of sexual deviance and hyperarousal led to the offences.

77. The assertion by the offender that his poor judgement was related to intoxication does not explain the prolonged timeline and repetition of crimes, though probably drug and alcohol addiction providing disinhibition contributed to the offending to some extent.

Submissions and Consideration

78. I agree with the Crown submission that the offences are serious, with sexual misconduct against two children over time, with charged events that were not isolated but amongst other misconduct not charged.

79. All the purposes of sentencing found in s 3A Crimes (Sentencing Procedure) Act 1999 are relevant. There must be adequate punishment by way of a sentence that addresses the need for general and specific deterrence, denouncing the behaviour and making the offender accountable for it. Prospects for rehabilitation of the offender must be brought to account, weighed against the need for appropriate weight for other purposes of sentencing. The offences were in the breach of trust implicit in the offender’s relationships with his daughter and his stepdaughter, and they occurred in their home. The harm to the victims must be recognised.

80. The Crown invites the court to find that the injury and emotional harm to the children was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. I do not accept this submission. This would be established upon evidence proving those facts beyond reasonable doubt but without diminishing the significance of the evidence that TT suffered bleeding after digital penetration and the distress revealed in her victim impact statement, there is insufficient evidence to hold that the injury and harm extended to a substantial level. There is no medical evidence in support of the proposition advanced for either victim, and in the case of MS there is no victim impact statement and no representation in the statement of agreed facts that would support such inference. I accept though that the injury and emotional impact for TT and the emotional impact for MS was and is significant.

81. I find that no sentence other than full time imprisonment is appropriate for each of the offences: s 5 Crimes (Sentencing Procedure) Act 1999.

82. The offender’s antecedent criminal history and conditional liberty is relevant to the assessment of prospects for rehabilitation, informs the need for specific deterrence, and denies him leniency that he might otherwise have sought, not overlooking the limited weight this would have in the assessment of offending against children. I have noted that he has no other comparable offences on his record.

83. Submissions on behalf of the offender refer to the early pleas of guilty, the discount these attract and the pre-sentence custody. I am told that he performed some community work after the bush fires in his region, engaged upon cleaning up over about six months. Although it is commendable that he participated in this endeavour it is of little significance overall in the synthesis of the various matters that lead me to the sentences I have identified.

84. It is submitted that the mental condition of the offender at the time of the offences is relevant in the assessment of moral culpability: MDZ v R [2011] NSWCCA 243; Ayshow v R [2011] NSWCCA 240. Both authorities drew upon Muldrock v R [2011] HCA 39 to which Johnson J also referred in Tepania v R (ibid) discussed earlier.

85. The impairment to mental health is summarised from the report provided by Dr Calvin. It is conceded on behalf of the offender that there is no specific diagnosis shown to have a nexus to the offender’s commission of these crimes.

86. The premises upon which Dr Calvin reached his views are expressed upon relatively limited analysis, and correspondingly provide qualified assistance to the court in the assessment of what should be imposed upon this offender, considering that all assumptions underpinning the opinions rest, to a substantial degree, upon the veracity of the offender’s representations. Dr Calvin noted Ms Maguire's observations, including the improbable explanation that he behaved as he did because of intoxication with no aberrant interest in pre-pubescent female children.

87. The offender’s history supports the court’s finding that he suffered ADHD in his younger years and subsequently, but the extent of the symptoms and how they impacted upon him to diminish his capacity to proceed through his life without the unfortunate choices he made in the accumulation of his past offences and the misconduct before this court is not in my opinion adequately addressed.

88. The court is asked to accept the conclusions reached without the benefit of a thorough understanding of his life in his formative years that might explain why he evolved as he has and why he would commit such crimes as these. There is no material independently sourced to support the representations attributed to him that he had a significant history of substance addiction, childhood developmental pathology and mood instability and the reasons why it evolved and was not adequately managed. There is no indication that he had a troubled homelife as he grew through his formative years. Apart from misbehaviour at school he represented a relatively good childhood and stability at home.

89. This said, on balance I accept that he has a history of challenges. The report from Dr Calvin was admitted by consent and no opportunity for cross examination sought.

90. The concession made on behalf of the offender that there is no evidence of a nexus between any suggested diagnosis and the offending was in my opinion properly made. The significance of the opinions given by Dr Calvin, which on balance I accept, is in the assessment of prospects for rehabilitation and the need for an adjustment of the ratio specified in s 44 Crimes (Sentencing Procedure) Act 1999, upon a finding of special circumstances. Self-induced intoxication is not available to the offender in mitigation of penalty: s 21A(5AA) Crimes Sentencing Procedure) Act 1999. There is explanation proffered in general terms for his resort to prohibited drugs, with reference to representations attributed to him in third person speech in terms that it arose within the context of the ADHD. The analysis which ultimately Dr Calvin offered at page seven of his report is,

“There is also a clear history of developmental pathology with features of Attention Deficit Hyperactivity Disorder (ADHD), which has caused behavioural issues and early maladjustment. He appears to have developed low self-esteem and identity disturbances. All of these seem to have laid the foundation for developing a personality disorder and early onset substance abuse”.

91. The expressed need for confirmation of the suggested diagnoses argued by Dr Calvin implies a degree of speculation in the conclusions reached. There is no evidence from any source within the offender’s family or circle of associates dealing with the effectiveness of any management of the offender and his conditions through his formative years into adulthood. The Sentence Assessment Report reported that he engaged appropriately in drug, alcohol, and mental health interventions when on parole, which might indicate that he has the potential to rehabilitate if prepared to take the crucial step of gaining insight for these crimes.

92. I am not persuaded that his present prospects for rehabilitation are more than guarded, considering the explanation the offender has given more than once for the offending. There can be no finding other than he has an interest in pre-pubescent children. It is not known what pornography he viewed each day to reach hyperarousal, but to seek his sexual release at the expense of these children as he admits must lead to the view that he has aberrant sexual appetites which inform the need to provide protection from the offender. How his aberrant interests might be addressed cannot be assessed without an accurate and truthful acknowledgement of his motivation which is absent in this case.

93. In addition to insight into why he so behaved, the steps toward rehabilitation must include abstinence from alcohol and drugs. The Sentence Assessment Report refers to supervision in 2011 when subject to parole. It is recorded that he engaged appropriately in drug, alcohol and mental interventions.

The Sentence

94. The discount of 25% is applied to achieve the indicated sentences.

95. I find as special circumstances the offender’s need for management of the ADHD said to afflict him, and the misuse of alcohol and drugs. A modest extension to the period subject to parole ought to facilitate the required intervention in controlled circumstances. 

Sequence H80218984/1 – s 66DC(a) Crimes Act 1900,

1/1/2020 – 31/12/2020 – intentionally carry out a sexual act towards TT, a child aged eight or nine years.

2 years 9 months

Sequence H80218984/7 – s 66EB(2)(a) Crimes Act 1900,

1/1/2018 – 31/12/2020 – intentionally procure TT, a child aged six, seven, eight or nine years, for unlawful sexual activity.

5 years 6 months.

Non-parole period 4 years.

Sequence H80218984/6 – s 66DC(a) Crimes Act 1900,

1/1/2020 – 31/12/2020 – intentionally carry out sexual acts towards TT, a child aged eight or nine years.

2 years 6 months

Sequence H80218984/9 – s 66A(1) Crimes Act 1900,

1/1/2021 – 8/1//2021 – sexual intercourse with TT, a child aged nine years.

6 years

Non-parole period 4 years

Sequence H80218984/5 – s 66A(1) Crimes Act 1900,

1/1/2019 – 31/12/2019 – sexual intercourse with TT, a child aged seven or eight years.

7 years

Non-parole period 5 years

Sequence H79794020/1 – s 61O(2) Crimes Act 1900,

1/2/2013 – 1/5/2013 – commit an act of indecency towards MS, a person aged seven years.

2 years 5 months

96. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 I specify an aggregate sentence comprising a non-parole period of 11 years commencing on 8 January 2021 to expire on 7 January 2032 with a further period of 4 years during which the offender will be eligible for parole expiring on 7 January 2036.

Decision last updated: 04 November 2022