R v Callaghan

[2021] NSWDC 838

District Court

New South Wales

Medium Neutral Citation:

R v Callaghan [2021] NSWDC 838

Hearing dates:

17 August 2021
9 September 2021

Date of orders:

24 September 2021

Decision date:

24 September 2021

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

At [96] Aggregate head sentence of 12 years and a non-parole period of 9 years. 

Catchwords:

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

CRIME — Drug offences — Supply prohibited drug – child > 10

CRIME — Driving offences — Driving whilst disqualified

SENTENCING — Relevant factors on sentence — Objective seriousness – Aggregate sentences – Accumulation, concurrency and totality

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bell v The Queen [2018] VSCA 281

Bourke v The Queen [2010] NSWCCA 22

Dawkins v The Queen [2018] NSWCCA 278

Ibbotson v The Queen [2020] NSWCCA 92

KAB v The Queen [2015] NSWCCA 55

R v AJ (Judge Shead SC, NSWDC, 27 August 2020, unreported)

R v Bui (Judge Pickering SC, NSWDC, 27 November 2020, unreported)

R v Burns (Judge Whitford SC, NSWDC, 30 March 2020, unreported)

R v Imbornone [2016] NSWDC 305

R v Qutami [2021] NSWCCA 353

R v Ramon [2020] NSWDC 858

R v Rosenberger (1994) 76 A Crim R 1

R v Swain [2020] NSWDC 198

R v Woods (2009) 195 A Crim R 173

Category:

Sentence

Parties:

Crown
Brett Callaghan (Offender)

Representation:

Counsel:
C Evans (Crown)
D Roff (Offender)

Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid (Offender)

File Number(s):

2020/00128371

SENTENCE

1. Brett Callaghan appears for sentence following his entering pleas of guilty to three offences arising from his interaction with a 12 year-old girl on Tuesday 28 April 2020. The offender was 37 years of age at the time. In addition to the three substantive charges to which he has pleaded guilty, he asks the Court to take into account four additional offences with respect to which he has acknowledged his guilt. These were included in two Form 1 documents and I will take them into account in determining appropriate sentences for the respective substantive matters to which they attach. I will come to the detail of the various charges in the course of outlining the narrative circumstances.

Factual Background and Offences

2. The victim in this matter was, as I have indicated, 12 years of age. There is in such circumstance a statutory prohibition with respect to the identification of her or material which might tend to identify her. For the purposes of these remarks, I will refer to her by the pseudonym "Maria". I will also adopt pseudonyms for the two male friends of the victim to whom reference will be made.

3. The factual background giving rise to the offending conduct has been provided to the Court in an Agreed Statement of Facts. The 12 year-old victim Maria was dropped off by her mother at about 8.15am outside Westfield Shopping Centre at Hornsby. It was intended that the child would spend the day with a friend while her mother went to work.

4. At about 10.30 that morning, the victim Maria met up with her friend James, a boy whose age is not revealed in the facts. They are described as having spent the day together "shopping and riding the train". The victim rang her mother regularly throughout the day on her mobile phone.

5. At about 2.30pm Maria and James caught a train to Normanhurst. They walked from the railway station to what is described in the Agreed Facts as the Thornleigh Brickpit at Dartford Road, Thornleigh. The site of the old Brickpit includes an indoor basketball stadium, a children's playground area and a substantial area of parkland. The facts do not indicate which part of the not insubstantial area Maria and James went to.

6. At about 3pm Maria's mobile phone ran out of battery. She was still at the Brickpit area with James. At about 3.25pm James was asked to return home by his mother. Maria said she did not want to be left alone. The children used James' mobile phone to contact another male friend Tom to come and join Maria at the Brickpit. James then departed for his home, leaving Maria alone to wait for the arrival of Tom.

7. About five minutes after James left, the offender Brett Callaghan arrived at the Brickpit area in his motor vehicle. He was accompanied by his own 8 year-old daughter. The offender parked a short distance away from where Maria at that time was sitting alone on a stairwell near the basketball stadium. He got out of the vehicle. He was unsteady on his feet and talking loudly to himself. CCTV footage subsequently obtained by police from the area reveals the time of the various unfolding events with some precision.

8. At 3.34pm the offender approached the victim and asked her what she was doing there. Maria told him that she was waiting for her friend Tom and she named him by his first name. The offender told her that he knew someone by that name and Maria believed that the offender knew her friend. She continued talking to him and she told him that she was 12 years old. In the course of the conversation, the offender asked her if she used drugs. Her response, if any, is not included in the Agreed Facts.

9. During the conversation, the offender asked Maria for the time. She told Callaghan that her phone battery was dead. The offender said to her, "If you want to charge your phone, you can come for a ride with me, it's only five minutes down the road." Maria asked if she could wait where she was and the offender told her that he could not bring the charger with him. Maria said, "Well, okay, if it's only five minutes down the road." The offender told her, "We will just be there for like ten minutes and I can drop you back." The offender told Maria that he would not hurt her as he had his daughter with him. She agreed to go with him and his daughter in the car. The vehicle then drove from the scene at 3.43pm.

10. Approximately two minutes later at around 3.45pm, Tom arrived. He was not able to find Maria who had just departed in the offender's car. The offender drove to his residence on a semi-rural property in Dural. The premises consisted of a main house in which the offender's parents lived, and a granny flat approximately 30 metres from the main dwelling in which the offender lived alone. The driveway from the street to the main house is some 200 metres long. The trip to the property in Dural took about 20 minutes. The offender dropped his own daughter at the main house where he left her with his mother. The offender then took the victim to his granny flat where she sat on the lounge. She told him that she needed to be at Hornsby Station before her mother came to pick her up so that her mother would not start worrying about her.

11. The offender obtained a glass pipe and a small bag of methylamphetamine or “ice”. He described it as "the good stuff" and began to smoke the ice. He asked Maria if she would like to try some and the child agreed. The offender gave the glass pipe to her and told her, "When it starts to light up, just breathe it in a little bit." The victim took two puffs and began to feel the effects of the drug. She described feeling tired, uneasy and hot, but also cold.

12. The action of supplying a prohibited drug to a child under 16 is one of the three substantive charges before me. It constitutes an offence contrary to s 25(1A) of the Drug Misuse and Trafficking Act 1985 and carries a maximum penalty of 18 years' imprisonment. There is no standard non‑parole period prescribed by Parliament. The offender continued to smoke ice himself and began jumping around the room. Maria said that she felt threatened by his behaviour. The victim checked the time and realised that she was due to be picked up by her mother.

13. The Agreed Facts state that she then ran down the driveway screaming. An adjacent female neighbour came out and went towards the direction of the screaming. She saw the victim standing in the driveway. The victim was not able to get out because the gates were closed. As I have indicated earlier, the driveway up to the gates were some 200 metres in length. Maria told the neighbour, "He's gonna get me, he just showed me his penis." She also told the neighbour, "I need my phone, I want my mother, I need to phone my mother, he's got my phone." The neighbour offered to call the police. At that stage the offender drove up the driveway towards Maria. When she saw the offender in his car, she said to the neighbour, "Oh, that's okay, I'll get my phone from him."

14. The victim then got into the offender's motor vehicle and asked him to drive her home. They left the property at about 5.15pm in the offender's car. Maria thought that the offender was driving her towards Berowra. At some stage the offender pulled the vehicle over. He told the victim that he needed to pick something up. They were pulled over for about 30 minutes. The offender said that his friend Michael was going to drop something off to them. The Agreed Facts read, "The victim felt stressed and frustrated and punched a tree." The narrative contained in the Agreed Facts is obviously heavily abbreviated. The Facts continue:

"The victim told him she was going for a walk but planned on seeking assistance. The victim ran for about two minutes until she started to get puffed. She could not see anything in sight so she and returned to the offender [sic]."

15. It is not clear by virtue of the literal way the facts read as to precisely what was occurring during the period of time leading up to some subsequently charged conduct. On her return to the vehicle, Maria told the offender, "I will do anything. Just, please, just drive me home now and get whatever you have to get later." The offender then asked her to suck his penis. She felt controlled and was panicking. He told her, "I'll get you home as soon as I can. Please?" The victim then sucked the offender's penis for what she said was about one minute. She then told the offender, "Yeah, I don't wanna do this anymore. Can you just drive me?" She felt like crying. The offender said, "No." The victim demanded that she be driven home. The offender said that he would drive her home but that he needed to get his wallet from his home first. At that stage the car battery was found to have gone flat and the vehicle would not start. They are said to have waited for at least an hour, hoping that somebody would drive past and assist them to start the vehicle.

16. The sexual interaction in the motor vehicle has been charged as aggravated sexual intercourse, as defined in the legislation, with a child between the ages of 10 and 14 years. The circumstance of aggravation relied upon as an element of the aggravated offence is the deprivation of liberty of the child. This is an offence contrary to s 66C(2) of the Crimes Act 1900 and carries a maximum penalty of 20 years' imprisonment. There is a standard non‑parole period of 9 years.

17. At about 8.30pm, more than three hours after leaving his parents' property at Dural, the offender sought assistance from a nearby resident in premises at Bloodwood Road, Fiddletown. The offender told the resident, a Mr Izzard, that he had his sister with him and also, presumably, that they had a flat battery and needed assistance.

18. One can but presume that the location where the vehicle had been parked was the road adjacent to Mr Izzard's premises which, on a readily available perusal of Google Street View, part of Google Maps, is disclosed to be a narrow, single lane piece of bitumen predominantly surrounded by what appears to be bush. It is clearly a remote dead-end road to which the offender had driven the victim. I should note that the parties were asked if there was any objection to the Court informing itself by reference to Google Maps with respect to the locations described in the Agreed Facts. There is a question mark as to whether judicial notice would extend so far. Approval was forthcoming from both parties.

19. Mr Izzard offered to give the offender a lift back to his vehicle which Callaghan declined. It would appear, however, that the offender gave Mr Izzard directions as to where his vehicle was located. The Agreed Facts then recite that the resident drove his own utility in the direction indicated. At about 100 metres from his property, he came across the offender and the victim walking back to the car where it had been left with its flat battery. Mr Izzard stopped, and the offender and the victim both got onto the back tray of his utility. They then drove to where the offender's car was broken down. The Agreed Facts do not reveal how far away the offender's vehicle was parked. Mr Izzard assisted with jumper leads and the offender's vehicle was jump-started. Maria asked Mr Izzard for the time and he told her that it was 10 past 9. Maria said, "I'm gonna be late," and the offender then drove off in his vehicle with her.

20. During the time Maria had been with the offender, she obviously failed to meet up with her mother at Hornsby Station at the agreed time of 4.30pm. She was not answering her mobile phone which had gone flat, and her mother consequently had contacted police. The Facts do not reveal in any detail what then transpired other than the fact that various different Area Commands, the State Crime Command, the Dog Squad, and also PolAir became involved. I am unaware whether the neighbour did in fact call police, but I would infer that enquiries with the boy James were likely to have led police to the location of the Brickpit at Thornleigh. CCTV footage was obtained from the Brickpit area and the car registration of the offender’s vehicle was accordingly ascertained.

21. By 9pm that evening whilst the offender and the victim were still in the Bloodwood Road vicinity in the Fiddletown area, police attended the offender’s property where they spoke with his parents. His 8 year-old daughter confirmed to police that they had been at what she described as the skate park, and that a girl had got into their car. Police obtained consent to search the location for the offender and the victim. While the facts are silent as to the detail of that search, I infer that the granny flat was looked at by police. Neither the offender nor the victim were able to be located.

22. At what must have been approximately 9.30pm, the offender drove back towards his parents' premises in Gilligans Road, Dural. He noticed a police car parked outside the premises. The offender panicked and told the victim that police would drug test him. Consequently, he parked further down the street outside nearby premises. The offender then left the victim in his car while he went back and, as described in the Facts, “scoped out” the house. The victim thought she waited for him to return for about 10 minutes. The offender then came back to his vehicle and told her that police had left the premises.

23. Police had departed the premises at 9.47pm. The victim said that by this stage she felt that she was stuck at the offender's house and she gave up trying to get home. After the departure of police, it would appear that the offender and his victim walked some distance from where he had been parked, some several hundred metres back to the granny flat.

24. After walking to the offender's flat, the victim sat on his bed. She was experiencing bad headaches and stomach aches which she attributed to the effect of the drug "kicking in a lot at that point". The offender moved closer to her on the bed and started touching her thigh. She told him to stop and moved away a bit. She told him she did not want to do anything and lay down on his bed. She said that she felt dizzy, as if she was about to pass out, and she could not get her words out.

25. The offender then began touching her in the area of her vagina. This conduct constitutes an offence contrary to s 66DB(a) of the Crimes Act 1900, namely, intentionally sexually touching a child between the ages of 10 and 16 years. Such offence carries a maximum penalty of 10 years' imprisonment. There is no standard non‑parole period. That offence has been included on a Form 1 document to be taken into account in passing sentence for the second substantive sexual intercourse charge to which I will come shortly.

26. The offender next pulled the victim's pants down. She said that she felt as if she could not stop him. He started kissing her and touching her hair. He put his hand up underneath her shirt and lifted up her bra. Having exposed her breasts, he began feeling her breast area and kissing and sucking her nipples. The victim said that she felt powerless and felt like crying because she could not get him off her. This aspect of the offender's conduct has similarly been charged as the intentional sexual touching of a child between 10 and 16 years of age, contrary to the provisions of s 66DB(a) of the Crimes Act 1900. Such an offence carries a maximum penalty of ten years' imprisonment. This offence has also been placed on the Form 1 relating to the aggravated sexual intercourse offence to which I will shortly refer.

27. The offender put his hand in the area of the victim's vagina. He pulled down her underwear and had his face on her vagina. The victim could recall feeling his tongue. This has been charged in accordance with the statutory definition as aggravated sexual intercourse with a child between the ages of 10 and 14 years. As indicated earlier, this is an offence contrary to s 66C(2) of the Crimes Act 1900 and attracts a maximum penalty of 20 years' imprisonment. There is a standard non‑parole period of 9 years. This offence has been placed on the same Form 1 to which I have already made reference.

28. The offender next pulled out his penis and inserted it into the victim's vagina. The victim did not want him to. The offender did not insert his whole penis. The victim described it as having hurt a lot as the offender continued and she said she was in so much pain that she wanted to cry. The offender stopped after a while and the victim remained lying on the bed. This act of intercourse has been charged as aggravated sexual intercourse with a child between 10 and 14 years and contravenes s 66C(2) of the Crimes Act 1900 to which I have already made reference. The circumstance of aggravation relied upon as an element of this offence is that the offender took advantage of the victim being under the influence of a drug in order to commit the offence. It is the second aggravated sexual intercourse charge before me substantively and is the offence to which each of the three charges on the relevant Form 1 are attached. Those three offences on the Form 1 will be taken into account in assessing the appropriate sentence for that charge.

29. Maria then got up and got dressed. She felt that her bra was really tight around her ribs and that she could not breathe. She felt as if she was having a panic attack. She asked the offender where she could get some air. He told her to sit in the corner near the windows. The offender was on his laptop when his mother came to the granny flat to ask if he had anyone there. He told his mother, "No, there's no‑one here." His mother told the offender that a 12 year-old girl was missing and that his car had been seen leaving with her. The offender denied any involvement. His mother then returned to the main residence and advised her husband who then notified police that the offender had returned home. Police subsequently ascertained, by examining the browsing history on the offender's computer, that he had been looking at bus timetables for the victim to get home the next day.

30. At around 12.30am, police returned to the vicinity of the offender's parents' premises. His vehicle was located where it was parked, some distance down the road outside the neighbour's property.

31. At about 1am police approached the granny flat. The victim heard footsteps approaching and the offender threw a blanket at her and told her to hide under it. Police then came into the granny flat and questioned the offender about the whereabouts of the victim. The offender denied any knowledge of her and said, "I don't know what you're on about." The offender was then cautioned and he then told police, "I did pick up a girl and, yes, she is here." The conversation which then ensued with the police was recorded on body‑worn video. The offender told police, "I didn't know she was 13. She looks 19, easy." He also said, "I didn't do anything to hurt her," and, "I haven't hurt her." He was then arrested.

15. Police located Maria within the granny flat. She told police, "He gave me something that was in an ice pipe." She was observed to be shaking, crying, and rocking backwards and forwards. She was struggling to breathe and required assistance to walk to the police car. Maria had been with the offender for approximately nine and a half hours from the time that he had enticed her into his motorcar in the vicinity of the Brickpit in Thornleigh.

16. In addition to his conduct directly towards the child, the fact was that at the time Callaghan was disqualified from driving. He had been disqualified after being convicted in the Local Court in October 2019 for an offence of driving whilst there was an illicit drug present in his blood. He was consequently charged with the offence of driving whilst disqualified on the day that he committed the sexual offending, namely, 28 April 2020. This was an offence contrary to s 54(1)(a) of the Road Transport Act 2013. This is a summary offence carrying a maximum penalty of 18 months' imprisonment and/or a monetary fine. It has been placed on a separate Form 1 document which attaches to the substantive charge of supplying a prohibited drug to a child under 16 to which I have made reference earlier.

17. Following the arrest of the offender, a number of forensic procedures were undertaken, including the obtaining of a blood sample. Analysis of the offender's blood for the presence of drugs detected amphetamine, methylamphetamine, delta‑9-tetrahydrocannabinol, and delta‑9‑THC or tetrahydrocannabinol acid. Blood and urine tests were also undertaken on the victim Maria who appeared to be drug‑affected when she was rescued by the police. Amphetamine, methylamphetamine and delta‑9‑THC acid were detected.

18. After the police located the child in the offender's flat, she was conveyed by ambulance to Royal North Shore Hospital where a sexual assault examination was conducted. That examination disclosed the presence of semen on smears taken from her lower vagina, external labia and vulva:

1. spermatozoon was detected from a high vaginal smear;

2. the offender's DNA was present on a low vaginal swab;

3. a DNA profile Y1 matching the offender was detected from an analysis of an oral rinse, and;

4. a mixed DNA profile from which the offender could not be excluded as a contributor was found in a mouth swab from the victim.

36. A search of the offender's premises pursuant to warrant resulted in the seizure of a glass pipe, a bong, a laptop, and other electronic items. The web browser in his laptop revealed a search for bus timetables at approximately 1.04am, shortly before the arrival of police in the early hours of 29 April 2020. DNA analysis of the drug apparatus was consistent with use by both the victim and the offender.

37. Against the above detailed background, the offender, as I have already indicated, has pleaded guilty to the three substantive offences and has asked that each of the Form 1 offences be taken into account.

Subjective Background

38. I turn to subjective features. The offender did not give evidence in the sentencing proceedings. His subjective background is to be gleaned from his criminal history, a Sentencing Assessment Report, a medico-legal report from a forensic psychiatrist, and an unsworn letter of apology. I am conscious of the reserve which must be held with respect to accepting mitigatory accounts and histories when provided through a third party such as a psychiatrist or communicated in an unsworn letter which is not the subject of cross‑examination: see R v Qutami [2021] NSWCCA 353; R v Imbornone [2016] NSWDC 305.

39. The offender was 37 years of age at the time of the commission of the offences. He grew up in a family of three boys. The family is described as having lived predominantly in Sydney. He was the eldest child. The account provided to the psychiatrist suggests that he had a problematic schooling history due to symptoms of ADHD. Callaghan told the psychiatrist that he had been diagnosed with that disorder at the age of 7. I note in passing that the Sentencing Assessment Report records him as having told the author of that report that such diagnosis occurred when he was 12. He suffered from poor attention and disruptive behaviour which negatively impacted on his academic performance. He also suffered chronic behavioural issues in both primary and secondary school. The offender reported that he was often subject to disciplinary action and was suspended on multiple occasions. He described having been prescribed medication for ADHD which he stopped taking during his adolescence. He left school after the School Certificate in Year 10.

40. The offender described himself as a keen swimmer during his childhood and adolescent years. He was said to have shown promise in becoming professional and was a national champion in several swimming events. In his handwritten letter of apology, the offender described competing at high levels of national swimming. He said that he was disqualified from competing at the Commonwealth Games trials as a consequence of failing a drug test. He described a lot of pressure to perform with many hours of training. He described having had dreams of being an Olympic swimmer. At 17 years of age, he had failed a drug test as a consequence of cannabis use. He was terminated from the swimming squad and was no longer eligible to continue training or competing. In his handwritten letter, he describes the effect of what happened as follows, "I was shattered, I lacked direction, focus or counselling."

41. His first interaction with the criminal justice system also arose at the age of 17 when he was fined for driving an uninsured and unregistered motor vehicle. He was fined for those offences in the Children's Court. That was his only transgression until an offence of driving with a low-range PCA shortly before he turned 33 in 2015.

42. His work history after leaving school and following his suspension from competitive swimming is referred to but briefly in the material provided to me. After leaving school, he is said to have begun working in a car factory. He then moved into landscaping which is described as the predominant industry that he had been employed in during his adulthood.

43. At some stage he was involved in a personal relationship for some 7 years. A daughter was born to this relationship who is now approximately 9 years of age. She was present in the motor vehicle with her father when the victim was first enticed into his car. Apparently, he was awarded sole custody of his daughter following Family Court proceedings and the breakup of the relationship with his daughter's mother.

44. The offender outlined a long history of drug and alcohol issues. The psychiatrist report from Dr Christina Matthews dated 18 June 2021 attributes to the offender a statement that he commenced using cannabis at the age of 19. The disparity between this account of commencing use of cannabis at 19 and the report of having been suspended from competitive swimming as a consequence of cannabis use at the age of 17 is self‑evident.

45. The psychiatrist reported that the offender would smoke up to $50 worth of cannabis daily up until the year that his daughter was born. This implies that he smoked that amount of cannabis daily until approximately 2012 when he would have been about 30. The offender described commencing the use of methamphetamine or “ice” in approximately 2015. He described his use as being initially recreational and intermittent but said that it escalated to daily consumption.

46. He also reported using GHB as an accompaniment to ice several days a week. The Court is aware that GHB, or gamma-hydroxybutyrate, is colloquially known as a “club” drug or “date rape” drug. An increased sex-drive and feelings of euphoria are said to be positive effects of the abuse of this drug. The offender also reported having used cocaine, hallucinogenic trips and ecstasy on an experimental basis during his adolescence and adulthood. He denied using these substances during the years preceding his arrest. Callaghan told the psychiatrist that he had attended drug and alcohol rehabilitation as an outpatient through Royal North Shore Hospital approximately 8 months prior to the offending. No documentation regarding this program has been tendered.

47. In his personal life, the offender reported having had two former de facto partners, one of whom was the mother of his daughter. As indicated earlier, his child was 8 years of age at the time of the offending.

48. His court history indicates a number of breaches of a domestic apprehended-violence order in May 2018 in respect of which he received a modest fine. According to his account to the psychiatrist, these breaches were by virtue of contacting his former partner and did not involve any acts of violence. He was also prosecuted in 2018 with respect to a break and enter offence which had occurred in February 2018. In January 2019 he had been sentenced for that offence to 14 months' imprisonment which had been permitted to be served by way of an Intensive Correction Order, including supervision and community service. The Intensive Correction Order had concluded on 29 March 2020, approximately four weeks before the commission of the current offences.

49. The psychiatrist ultimately expressed the opinion, as a psychiatric diagnosis, that a number of disorders had "possibly" been present prior to the assessment in June 2021. It was thought that he may have recently experienced symptoms of a mild level of a major depressive disorder, and that ADHD was also a possibility. He did satisfy the criteria of polysubstance use disorder relating to his cocktail of different illegal drug usage. I should note that I am not satisfied on the basis of that evidence that there was a relevant causal connection with the offending and possible mental disorders. It was suggested that in his future management, he would benefit from a specific assessment relating to the presence of a paedophilic disorder, and ongoing assessment to clarify the presence of ADHD. The psychiatrist also recommended drug and alcohol programs, and vocational and employment activities whilst in prison.

50. A Sentencing Assessment Report prepared by the Community Corrections officer at Long Bay and dated 23 July 2021 was also tendered. It noted that the offender had not incurred any institutional misconduct charges during his incarceration. The report noted that the offender's father and mother now had full custody of the offender's young daughter. His father indicated that they intended to exercise vigilance and limit the offender's contact with her after he is released due to the nature of the present offending. Whilst the family was prepared to offer emotional support, they were no longer prepared to provide him with accommodation or monetary assistance. Of some significance in the ultimate assessment by the Community Corrections officer, is that the offender was a medium risk of re-offending.

51. The report writer noted that he was unwilling to articulate details in relation to his motivation for offending. The offender acknowledged that his substance abuse and his emotional state were issues linked to the offending. However, the author of the report concluded that while he did not deny his offending, his insight was minimal. Mr Roff of counsel, who appears on behalf of the offender, takes issue with that conclusion.

52. A Consultation Case Note report from a specialist psychologist attached to Corrective Services was attached to the Sentencing Assessment Report. Mr Roff pointed out that the only basis of the opinions in that Case Note report was on the review of documents and not based upon any actual interview. The risk assessment by the staff psychologist pursuant to the Static‑99R was assessed as "above average".

53. The Sentencing Assessment Report described a 3-year period of abstinence from illicit drugs by the offender between 2010 and 2013, during which time he was involved in the lengthy Family Court proceedings relating to custody of his daughter. Following his relapse into drug use, he had completed the MERIT program and had also been accepted into a residential rehabilitation program at the conclusion of the MERIT program. He had chosen not to accept the placement.

54. The offender did acknowledge having caused harm to the victim and expressed empathy by reporting, "It wasn't fair on her or her family," and, "I've probably ruined her life."

55. The Sentencing Assessment Report indicates that there were breaches of the Intensive Correction Order by subsequent offending. That offending would appear to have been possession of a prohibited drug in September 2019 for which he was fined, and the offence in October 2019 of driving with an illicit drug present in his blood. As I have indicated, he received a three-month disqualification as well as a fine in relation to that particular offending. As noted earlier in these Remarks, disqualification was still current during the driving which occurred on 28 April 2020. Given these breaches of the ICO and the fact that the present offences were committed shortly after the expiry of the supervision order, the offender's response to supervision was described as unsatisfactory.

56. As I indicated earlier, the author of the Sentencing Assessment Report assessed the risk of re-offending, according to the Revised Level of Service Inventory as “medium”. However, given the assessment of “above average” by the Corrective Services psychologist, interim supervision would be monitored at a high level until such time as a formal sex-offender supervision assessment level was able to be determined, in the event of his release to supervision by the court.

57. In addition to the above material, a letter of apology written by the offender was also tendered. It reads as follows without correction of spelling or syntax:

"Your Honour, I apologise for the crime I committed and for my actions. I am responsible for my actions. I condemn my behaviour and am ashamed of my actions. I have slipped into a destructive lifestyle with a systematic misuse of alcohol and drugs. I apologise to my victim and their family. I also know my actions effected my family as well. I have struggled to understand. I denounce my behaviour.

I was competing at high levels of national swimming. There was a lot of pressure to perform, with many hours of training. I failed a drug test and was dismisted from the swim team. I had gone from an elite athlete to someone with no direction or career prospects. I have been diagnosed with ADHD and struggled with school. I had no career backup to swimming. I had lost my focus, direction and purpose. I got into a toxic relationship and substance abuse. It is my fault. I have long struggled with ADHD which led me to drug use to cope with my medical condition. Unfortunately this has led to my disquilification from competing at the Commonwealth Games trials. I had dreams of being an Olympic swimmer. I was shattered. I lacked direction, focus or counselling.

After my dismissal, I entered into a toxic relationship. The only positive was the birth of my daughter. I made steps to change my life. I left my ex‑partner and was awarded full custody of our daughter. I focused on raising my daughter and working on being a productive member of society. I was lonely and isolated as a single parent. I sought validation in multiple companions. One of them introduced me to ice and my life took a destructive spiral.

I deeply regret what I have done and the pain and embarrassment to my victim and her family. I hope my early guilty plea has in some ways spared them further torment. I recognise I need to address my fundamental problems. Substance abuse is not a solution. It is a road to self‑destruction. I have enrolled in Narcotics Anonymous, Remand Addiction, and attend Buddhist chapel to address issues in my life. I know I have to constructively rebuild my life for my daughter and myself. I must set a better example for my daughter.

I appreciate your Honour for taking the time to hear my apology."

Victim Impact Statement

58. The Court also received a victim impact statement on behalf of Maria. It was read by her mother. Her mother said:

"What happened to my daughter has been an incredibly damaging experience and she is not the same girl she was. She has lost a lot of trust, particularly in men and strangers, and is now more afraid than she once was. She doesn't feel safe anymore, is hypervigilant and makes sure the house is locked up at night. Her personality has changed fundamentally as well, she is a lot more serious and finding that little spark of happiness is a lot harder. I look at photos now and the thing that stands out is that she doesn't smile in photos anymore. That's extremely difficult and upsetting to see because she used to be such a happy, free‑spirited child.

What happened to her has seriously affected her education. School is now a challenge and she has no interest in being there. The school environment is off‑putting and she says the classrooms feel like interview rooms at the police station. She has displayed a lack of trust in authority and says talking to the teachers is like talking to the police. It's a constant struggle to get her to want to go to school.

Friendships have been affected. New friends can't know what she has been through and she now doesn't have friends like she used to. Her personality has changed as she's far more serious and less inclined to want to do anything or go out in public. Family gatherings seemed more strained to her. She feels like no‑one talks to her like they used to.

Kids at school often joke or comment about rape or drug use or abduction, et cetera, and they don't understand the impact that it has on her. She can't help but react or become upset. I then have to go and pick her up from school because she just can't be there. The school has offered immense support and has put things in place and tries to offer counselling, but she doesn't want to have to rehash everything she's been through with another stranger.

Even after all this time she still doesn't sleep very well. She suffers from nightmares. We tried melatonin but it doesn't really help. The lack of sleep impacts her attendance at school, and although she has good days here and there, the impact has been catastrophic.

As her mum, I want and need to be there for her. I've had to take a lot of time off work which my boss is not happy about and constantly asks me, 'Do you need to take time off?' whenever I get called to the school to collect her. I have no sick leave left and of course the situation creates a lot of stress.

The things that were done to her, a 12 year-old girl, were horrific and absolutely abhorrent. It's something that she has to deal with for the rest of her life. There doesn't seem to be adequate enough words to describe how this has impacted her."

59. This Victim Impact statement gives colour to the recognition by the courts, as a matter of inevitable conclusion, that child sexual abuse has serious and longstanding impacts upon victims.

Determination

60. The Court is required, in determining an appropriate sentence or sentences, to synthesise a number of competing factors. The purposes of sentencing as expressed in s 3A of the Crimes (Sentencing Procedure) Act 1999 include ensuring that an offender is punished for his conduct, the deterrence of crime both generally and specifically with regard to an offender, the protection of the community, the promotion of an offender's rehabilitation, ensuring the accountability of an offender for his actions, the denunciation of the conduct, and also recognition of the harm done to victims. As was observed by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476:

"…sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment.

The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

61. I of course remind myself that the maximum penalties and the standard non‑parole periods specified similarly operate as yardsticks or guideposts in the determination of an appropriate sentence.

62. There is in our society an absolute prohibition on sexual activity with a child. The abhorrence with which the community regards sexual offences against children is one of absolute clarity. The commission of such offences is invariably selfish and self‑centred. It robs children of their innocence and tends to sexualise them before they reach psychological and physical maturity. It displaces a sense of trust in adults and inevitably creates psychological confusion that is likely to last well into adulthood. As Leeming J said in Ibbotson v The Queen [2020] NSWCCA 92 at [3], offending conduct of this nature amounts to the "reprehensible taking advantage of a child's trusting innocence".

63. I also note the observations of the Court of Criminal Appeal in R v Woods (2009) 195 A Crim R 173, per Giles, Latham JJ and Mathews AJ, where their Honours said at 53:

"Offences relating to sexual activity between young children and adults are premised upon the vulnerability, dependency and immaturity of children. It is those attributes that render young children amenable to sexual exploitation by adults. The structure of the offences, and the legislative policies underpinning them, assume that young children are not capable, by and large, of understanding the significance of sexual activity (hence the absence of informed consent) or of asserting their will over that of an adult. How then can the fact that a victim cooperates with an offender be relevant to an assessment of the objective gravity of an offence of this type? That is not to say that evidence of a victim's resistance and/or an offender's efforts to restrain a victim are not relevant to an assessment of objective gravity for offences of this type. Such a circumstance would aggravate a child sexual assault offence. But the absence of struggle or resistance (that is, the child's cooperation) cannot, in our view, mitigate such an offence."

64. The present matter involves opportunistic and predatory conduct by the offender which commenced at the Brickpit area in Thornleigh shortly after 3.30pm on the afternoon of Tuesday 28 April 2020 and continued thereafter, as I have said, for approximately nine and a half hours before the police located Maria in the offender's premises. The child, who had been supposed to meet up with her mother at 4.30pm that afternoon, had been enticed by the offender into going into his vehicle on the promise of getting her phone charged so that she could contact her mother. She was also undoubtedly lured into the circumstance by the presence of his 8 year-old daughter. Her effective disappearance, after having been allowed to spend the day with her friend, was undoubtedly a parent's worst nightmare.

65. The Court is required to take into account a variety of different factors in ultimately determining an appropriate sentence. The objective seriousness of the individual criminal offences is required to be assessed. Various features that operate as aggravating factors need to be considered as well as factors which operate in mitigation. The age of a victim is an important factor in terms of assessing the objective seriousness of offending in child sexual assault matters. The courts have clearly recognised that the younger a victim of such sexual assault may be, they are likely to be less mature and more vulnerable than older children within the same age range of prohibited conduct. Parliament has recognised different age ranges reflected in differing maximum penalties with respect to different forms of child sexual assault.

66. In the present matter, the child was 12 years of age, the offender was 37 years of age at the time. The disparity between their ages is also a relevant factor. The Agreed Facts indicate that Maria told the offender that she was only 12 years old when he first approached her. I place no weight whatsoever on his subsequent assertion to police when he was arrested to the effect that she easily looked 19.

67. The first offence charged substantively is the offence of supplying a prohibited drug to a person under the age of 16 years. The offending behaviour involves supply on a single instance of an unknown quantity of the prohibited substance. The Agreed Facts refer to the victim having two puffs from the ice pipe or meth pipe. There is no evidence before the Court as to any conclusion that might be reached as to the amount of drug ingested by her in light of the subsequent blood analysis. The offending could not be described as trafficking to a substantial degree. The description by the offender to his 12 year-old victim that the drug was "the good stuff", her circumstance of isolation with him in his granny flat, the substantial age differential, and the surrounding circumstances leading her to initially run away from the premises, warrant a finding that the offending was objectively serious. This was not a supply to a purchaser or acquirer of a drug who, having obtained it, then went on their own way.

68. The Crown points to suspicion as to why the supply offence was committed, whilst conceding that the Court could not be satisfied beyond reasonable doubt that the prohibited drug was supplied in order to facilitate the subsequent sexual conduct. The Court is conscious to not double-count where the circumstance of the victim being affected by the intoxicating substance is relied upon as an aggravating feature with respect to the sexual interaction in the motor vehicle and as an actual element of aggravation with respect to the sexual conduct later that evening back at the granny flat.

69. On behalf of the offender, Mr Roff of counsel described the provision of the illicit drug as having been "almost a gesture of goodwill". He described that it took place without any threats, coercion or violence. No other act is said to have occurred against the victim at or around this time. Mr Roff submits that the objective seriousness of this offence falls towards the lower end of the range of objective gravity.

70. I do not agree. In my view, the offence of supplying the methylamphetamine to a 12 year-old child, contrasted with other circumstances of supply to persons under 16 years of age, which is the actual offence charged, falls within a broad mid-range of objective seriousness for such an offence. I should note that the presence of THC in her blood is not the subject of any evidence or any charge before me.

71. The second substantive offence chronologically was the act of oral intercourse which occurred in the offender's motor vehicle whilst located in Bloodwood Road, Fiddletown. It has been charged, relying upon the circumstance of aggravation that the victim at the time had been deprived of her liberty. The effect of charging the aggravated form of sexual intercourse is to increase the maximum available penalty for the sexual intercourse from 16 years, to one of 20 years' imprisonment. The standard non‑parole period is also increased from 7 years to 9 years.

72. Mr Roff, on behalf of the offender, described the offender as almost pleading with the victim to perform the act of oral sexual intercourse before he would take her home. He described the extent of the coercion as being limited. He described the deprivation of liberty as being minor and submitted that the offence "falls below the middle of the range of objective seriousness, perhaps at the midpoint of it and the lower end of the range".

73. The Crown described the deprivation of liberty as not arising in what might be described as a normal fashion by direct words or physical restraint but rather from all of the circumstances. The Crown points to the circumstances, including the age of the victim, the location at which the offending occurred, the absence of any means of communication by mobile phone of the victim, her belief that she was going to be driven home when she got into the car, the fact that she was in a remote location and effectively stuck there, her attempt to get away from the offender, her realisation when she could not see anything in sight, that there was no‑one around, and her statement to the offender that she would do anything if he drove her home. The Crown's position accordingly was that the period of time for which Maria was deprived of her liberty was quite short, being from the time she could not see anything in sight until the conduct amounting to the offence took place.

74. The situation of determining with some calculated accuracy the length of the period of deprivation of liberty for a child in the circumstances that had unfolded is not, in my view, one which can be or is required to be determined with arithmetical precision. Having effectively run away, or perchance escaped, initially from the offender's flat and having run the 200 metres or so to the closed gate to the offender's parents' premises, the young victim was at that time not in a situation of deprived liberty. Her screaming and assertion that the offender had shown her his penis, which assertion is not relied upon as the basis for a charge, attracted the attention of the neighbour that resulted in an offer to call police.

75. However, thereafter the child got into the offender's vehicle and subsequently told police that she thought he was driving her towards Berowra. However, in fact, after first heading in a direction which would have ultimately been able to proceed down through Dural and Cherrybrook and ultimately around to Berowra, the offender drove his vehicle effectively due north, through Arcadia, towards Fiddletown, and ultimately to the dead‑end which ends in the Marramarra National Park to the west of Berowra Waters. To the extent that it requires an assessment of when she was deprived of her liberty, that had occurred in real and practical terms from the time she had got into the offender's motor vehicle at his parents' front gate.

76. As I indicated in my earlier summary of the facts as they have been presented to this Court, the detail of the circumstances which unfolded appear to be substantially abbreviated. The premises subsequently attended in Bloodwood Road, Fiddletown, in order to seek assistance in jump-starting the vehicle are at a location perhaps 20 minutes' drive north of the offender's premises. The Agreed Facts suggest when they first stopped in the vehicle, they waited for about 30 minutes on the pretext of waiting for somebody to deliver something. The facts then describe the victim punching a tree and running away until she got puffed and could not see anything, and then returning to the vehicle. Following the oral sexual intercourse, they are said to have waited for about an hour, hoping that somebody would come along because the car could not be restarted as it had a flat battery. When they ultimately went to the house of the good samaritan who provided jumper leads, it was approximately 8.30pm. That was more than three hours after leaving the premises in Gilligans Road, Dural.

77. The objective seriousness of the offending is not, in my view, tempered to any considerable degree by a precise determination of the parameters of the temporal deprivation of liberty. The Crown submits, bearing in mind that the offence is of the aggravated variety, that the offending conduct falls just below the mid-range of objective seriousness. The circumstance of the offending occurring in such a remote location and the aggravating factor that the victim was affected by the illicit drug which she had smoked and which had been provided to her by the offender, combined with her age of 12 years, in my opinion, places this offending within the mid-range of objective seriousness. I am conscious of the fact that the compliance of the child was obtained, metaphorically by a carrot rather than a stick. There were no threats and there was no physical violence. However, the child was in a situation of effectively having no choice.

78. The third substantive offence relates to the penile‑vaginal intercourse which took place following the return of the offender and the victim to his premises. Again, the aggravated offence has been charged with the concomitant increase in the maximum penalty. With respect to this charge, the Crown has particularised the taking advantage of the victim whilst under the influence of the drug in order to commit the offence. As is self‑evident from the factual circumstances, it was the offender himself who had earlier provided the victim with the drug. This conduct took place in the hours following the return to the Gilligans Road premises and had been preceded by the extended period of more than six hours where she had been isolated and in the company of the offender. She was well past the time that she was meant to have met her mother. The offender was well aware of the police having been alerted and had taken measures to avoid detection by police prior to his committing this particular offence and the other sexual acts which have been placed onto a Form 1 document.

79. The victim described her feelings of intoxication from the drug. She said that she felt dizzy, as if she was about to pass out, and that she could not get words out when she tried to speak. These effects would have been obvious to the offender. Whilst not a separate aggravating element, the victim had told the offender to stop when he started to touch her thigh and told him that she did not want to do anything. This is a factor which has relevance in determining the objective seriousness of the offending. The offender had penile‑vaginal intercourse without a condom. The victim said that she did not want him to. He did not insert his whole penis but she described that it hurt her a lot while the offender continued. She said that she was in so much pain, she wanted to cry. The offender stopped after a while. She did not say anything about him having ejaculated, however, there was subsequently forensic evidence of semen in her vagina. This is a factor which is capable of increasing the gravity of an offence: see KAB v The Queen [2015] NSWCCA 55.

80. On behalf of the offender, it was submitted that the offender only inserted a part of his penis but he stopped after a short time and that he did not ejaculate. It was accordingly submitted that the offence falls at or around the middle of the range of objective seriousness.

81. In the Crown's submission, the objective seriousness of the offending with respect to this substantive charge falls above the mid-range of objective seriousness. I am in agreement with that assessment.

82. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 sets out factors of aggravation in respect of the commission of criminal offences. The circumstance that the supply of the prohibited drug and the act of penile intercourse took place in the offender's home is submitted by the Crown to be a technical aggravating factor, and the Crown's submission is, however, not of great significance, particularly with respect to the sexual intercourse allegation where in most circumstances where such an act occurs, it occurs in a residence. The surrounding circumstances, namely, the semi-rural location of the premises and its isolation are relevant surrounding circumstances, but the fact that the offending took place in a home does not, in my view, operate as a factor of aggravation.

83. The Crown also points to the fact of vulnerability because of the geographical isolation in which the victim was placed. This is of course an element of the offence in the motor vehicle and must not be double-counted as an aggravating factor where it is relied upon as a circumstance of aggravation for that actual charge. The vulnerability of the child because of her age and her vulnerability by virtue of the geographical isolation similarly need to be carefully assessed so as not to fall into the error of double-counting.

84. Section 21A(3) refers to factors in mitigation. The offender pleaded guilty in the Local Court and this is a relevant factor in mitigation. In accordance with authority, he will be entitled to a 25% discount on an otherwise appropriate sentence as a reflection of the utilitarian value of his plea and a recognition of a level of remorse and contrition thereby being evinced.

85. Mr Roff submits that the offending conduct was not part of a planned or organised criminal activity. I have earlier described the offending conduct as opportunistic. However, to the extent that there was an unfolding series of opportunistic offending behaviours, the last act of sexual intercourse in his flat would appear to have entailed a degree of premeditation and some level of forethought and planning. The offender had observed the police when he returned and took precautions to avoid detection by them before returning with the victim to his flat. The offending conduct was not, however, part of a planned or organised criminal activity.

86. The offender does not have a record of relevant previous convictions other than his conviction for possession of a prohibited drug in September 2019 and his subsequent conviction for driving with an illicit drug present in his blood in October 2019. His earlier conviction for break and enter in 2018 had resulted in an Intensive Correction Order which had been completed approximately a month before the present offending. He had no prior convictions for sexual offending.

87. The offender has expressed a degree of remorse in his letter of apology. The Court's acceptance of what is expressed in that correspondence is tempered to some degree by the absence of sworn testimony and cross‑examination. It was submitted on his behalf by Mr Roff of counsel that the offender's reported hazy memory of the events would be found to be consistent with his ingestion of alcohol and drugs on the day. It was submitted that this can be associated with disinhibition and poor decision‑making over and above his mental health conditions. It was submitted on behalf of the offender, "This may go some way to reducing, at least to a certain extent, his moral culpability." I reject that submission.

88. As pointed out by McClennan CJ at CL in Bourke v The Queen [2010] NSWCCA 22 at para 26, "Intoxication, whether by alcohol or drugs, may explain an offence but will ordinarily not mitigate the penalty." His Honour made reference to R v Rosenberger (1994) 76 A Crim R 1 where the Court of Appeal in Queensland per Fitzgerald P, Pincus and Lee JJ, said:

"Ordinarily intoxication, whether by alcohol or other drugs, will not mitigate penalty... The proper policy appears to be generally to decline to give an offender the benefit of a reduction in sentence on the ground of his drunkenness at the time of the offence."

89. That expression of principle applies equally to intoxication on the basis of the influence of prohibited drugs. I have had regard to the blunt instrument of the statistics retained by the Judicial Information Research System. Where possible, I have had recourse to the cases both at first instance and in the Court of Criminal Appeal where a hyperlink has been provided within the JIRS system. In particular, I have perused Bell v The Queen [2018] VSCA 281; Dawkins v The Queen [2018] NSWCCA 278; R v Swain [2020] NSWDC 198; and R v Ramon [2020] NSWDC 858. I have also obtained and perused R v AJ (Judge Shead SC, NSWDC, 27 August 2020, unreported), R v Burns (Judge Whitford SC, NSWDC, 30 March 2020, unreported), and R v Bui (Judge Pickering SC, NSWDC, 27 November 2020, unreported).

Sentence

90. I propose to utilise the provisions of s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. Taking such a course requires the Court to set out the indicative sentences with respect to the individual charges. I have taken into account the 25% discount both with respect to the individual indicatives and in determining the aggregate sentence. I will deal with them in the chronological sequence they occurred.

90. The first offence of supplying a prohibited drug to a child under 16, taking into account the summary offence of driving a motor vehicle whilst disqualified, the indicative sentence will be a sentence of five years.

91. With respect to the aggravated sexual intercourse with a child between 10 years of age and 14, being the offence of oral intercourse in the motor vehicle in circumstances of aggravation, namely, deprivation of liberty, an indicative sentence of 6 years and an indicative non‑parole period of 4 years. As I say, this figure is reached taking into account the 25% discount.

92. With respect to the second aggravated sexual intercourse with a child between 10 years of age and 14, being the penile‑vaginal intercourse following their return to the flat, taking into account the additional offence of another aggravated sexual intercourse contrary to s 66C(2) similarly carrying a maximum penalty of 20 years' imprisonment if prosecuted separately, relating to the act of cunnilingus in the flat, and the additional two offences of intentionally sexually touching a child between 10 years and 16 years contrary to s 66DB(a) of the Crimes Act 1900, relating to touching the victim on the area of her vagina and subsequently feeling her breasts and kissing and sucking her nipples, an indicative sentence of 9 years with an indicative non‑parole period of 6 years.

93. I have taken into account considerations arising from the principle of totality and the need for partial accumulation indicative of the separate offending.

94. There will be an aggregate head sentence of 12 years and a non‑parole period of 9 years. The non‑parole period will commence on 29 April 2020 and will expire on 28 April 2029. The additional term of three years will accordingly expire on 28 April 2032.

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Decision last updated: 01 March 2023