R v Callaway

[2021] NSWDC 836

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Callaway [2021] NSWDC 836

Hearing dates:

27 August 2021

Decision date:

03 September 2021

Jurisdiction:

Criminal

Before:

KING SC DCJ

Decision:

Indicative sentences of imprisonment

SEQ 21: Indicative (25% discount) 9 years, 9 months

SEQ 8: Indicative (25% discount) 2 years – NPP 1 ½ years

SEQ 13: Indicative (25% discount) 7 years - NPP 5 years 3 months

SEQ 14: Indicative (25% discount) 7 years - NPP 5 years 3 months

SEQ 15: Indicative (25% discount) 6 years, 6 months

SEQ 12: Indicative (25% discount) 18 months – NPP 13 ½ months

SEQ 16: Indicative (25% discount) 2 years – NPP 1 ½ years

Aggregate sentence

Sentenced to a term of imprisonment of 13 years, 6 months with a NPP of 10 years to commence on 23 April 2021 and to expire on 22 April 2031, upon which date he will become eligible for parole. The balance of term of 3 years, 6 months will expire on 22 October 2034.

Pursuant to s39(2)(a) C(D&PV)A 2007 I order the offender have no contact of any kind, direct or indirect, with the complainant RC. That order is to remain in force until 22 October 2036.

Pursuant to s12(2) C(D&PV)A 2007 I order the offences be recorded as domestic violence offences on the offender’s criminal history.

Catchwords:

CRIMINAL – sentence – sexual assault offences inc. persistent sexual abuse of a child – assault & commit act of indecency person under 16 years old – sexual intercourse with person under 14 (9 or 10 years old), aggravated offence, under authority – attempted sexual intercourse with person under 14, aggravated, under authority – offending against children, impact & sequelae – 2 separate victims -objective seriousness – effect of s66EA - subjective matters – aggregate sentence

Legislation Cited:

Crimes Act 1900

Crimes (Domestic &Personal Violence)Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v the Queen (2013) 249 CLR 571

Burr v R [2020] NSWCCA 282

R v Dungay [2020] NSWCCA 209

Category:

Sentence

Parties:

Regina
Callaway, Dallas

Representation:

Counsel:
ODPP: Mr A O’Connor
DEF: Mr A Hughes
Solicitors:
ODPP Mr J Murray
Legal Aid Ms H Dean

File Number(s):

2019/383779

Publication restriction:

NPO in respect of the names of the complainants or anything tending to identify them.

Judgment

1. HIS HONOUR: In this matter, Dallas Callaway appears for sentence in relation to seven offences.

2. They are, in chronological order:

3. Sequence 21 - persistent sexual abuse of a child, RC, under the age of 16, on three or more occasions, in the period 24 August 2010 to 22 August 2011, contrary to s 66EA(1). The maximum sentence provided by the legislation is 25 years, and there is no relevant standard non-parole period.

4. Sequence 8 - an offence in relation to KT, being assault a person under the age of 16 and commit an act of indecency between 1 January 2014 and 31 December 2014 contrary to s 61M(2) of the Crimes Act 1900. The maximum sentence available is ten years’ imprisonment and there is a relevant standard non-parole period of eight years.

5. Sequence 13 - sexual intercourse with a person, KT, being under the age of 14 years, namely 9 or 10 years, in the circumstance of aggravation, being under authority, between 1 January 2014 and 31 December 2014 contrary to s 66C(2). The maximum penalty provided is 20 years’ imprisonment and there is a relevant standard non-parole period of nine years.

6. Sequence 14 - a further offence in respect of KT contrary to the same section with the same maximum penalty, and of the same nature within the same time period.

7. The only difference between Sequences 13 and 14 is that Sequence 13 relates to fellatio and Sequence 14 relates to cunnilingus, both being said to have occurred on the same occasion.

8. Sequence 15 - an offence of attempting to have sexual intercourse with a person, KT, then under the age of 14 years, namely 9 or 10 years old, in circumstances of aggravation, namely under authority and within the same time period as relevant to Sequences 13 and 14, contrary to s 66D. The maximum penalty is 20 years’ imprisonment and there is no relevant standard non‑parole period. The act relied on is attempting penile/vaginal intercourse while touching her buttocks and breasts.

9. Sequence 12 - assault and at the time commit an act of indecency on KT, a child under the age of 16, between 1 January 2014 and 31 December 2014, contrary to s 61M(2). The maximum penalty provided is ten years’ imprisonment and there is a relevant standard non‑parole period of eight years.

10. Sequence 16 assault and at the commit an act of indecency on KT a child under the age of 16, between 1 January 2014 and 31 December 2014 contrary to s 61M(2). Again, the maximum penalty provided is ten years’ imprisonment, and there is a relevant standard non‑parole period of eight years.

11. I note in respect of all of those matters the offender entered a plea of guilty at the Wyong Local Court on 16 February 2021 and is accordingly entitled to a 25% discount for the utility of the plea in respect of each plea. Such a discount will be provided.

12. The facts are agreed, and they are as follows:

1. The offender is Dallas Callaway, born 28 July 1977, and

2. The victims in this matter are RC, born {suppressed] 1995, and KT, born [suppressed] 2004.

OFFENDING AGAINST RC

Sequence 21, persistent sexual abuse of a child, s 66EA(1) Crimes Act.

1. In 2009 Ms MS met the offender on a dating application while she was living with her daughters in Glen Innes. At the time, the offender was living in a house on {suppressed] Street, Tamworth.

2. Towards the end of January 2010, Ms MS moved to premises in, South Tamworth, with her daughters. The offender remained living at his residence on [suppressed] Street.

5. At some point in the early part of 2010, RC started living in a caravan on the front lawn of Ms MS’s residence.

6. Approximately four months after RC had been living in the caravan, at around the time of the offender’s 33rd birthday (28 July 2010), RC went on a camping trip to a homestead with Ms MS, her daughter, and a boy who had been residing with the offender at his address,

7. During the camping trip, the offender informed RC that, “…he wanted [her]…” It was also noticed that there was flirting and, “…touchy feely stuff going on…” between the offender and RC. In her statement, RC indicated that she thought that the offender and her may have kissed once, but that nothing else happened.

8. After the camping trip, RC went to the offender’s residence in Green Street. Both the offender and RC were on the offender’s bedroom floor. After the offender had removed his and RC’s clothing, RC positioned herself so that she was sitting on top of the offender. The offender and RC then had penile/vaginal intercourse. The offender ejaculated onto RC’s body,

9. A couple of days later, MS’s daughter attended the offender’s residence and upon her arrival saw RC sitting on the offender’s lap. The offender and RC informed Ms MS’s daughter that, “…you know that they really liked each other and wanted to be in a relationship, and he was over mum and didn’t know how to break it to mum because [RC] was living with us...” MS’s daughter returned home and informed her mother,

10. Ms MS attended the offender’s residence and confronted him about the relationship. Ms MS also attempted to bring RC back to her residence, but RC would not leave. The offender said words to the effect of:

“It’s all good, I’ll take good care of her, we want to be together and there's nothing you can do about it.”

11. Ms MS contacted police who attended the offender’s residence. Police then brought RC back to Ms MS’s house and [she then] went back to her parents’ house.

12. While living at her parents’ house, RC turned 15 years of age,

13. A couple of days later, RC returned to the offender’s address to live with him,

14. When RC moved into the offender’s residence, RC described that, “…pretty much straight away we started a sexual relationship…”

15. RC continued to live with and have a sexual relationship with the offender until she found out that he had been sleeping with other girls. RC briefly moved back in with her parents before returning to live with the offender at his new residence in Duri, New South Wales,

16. The sexual relationship continued until RC was aged 16 years.

17. The Crown alleges that the unlawful relationship was maintained from the day after RC turned 15 years old until just before her 16th birthday, that is, between [suppressed] 2010, and [suppressed] 2011.

18. The unlawful sexual acts relied upon to establish the charge are that the offender and RC had penile/vaginal intercourse on an ongoing and regular basis throughout the course of each month over the course of a year. This is supported by RC’s statement where she states the following:

• “…we would have sex daily, I can't remember specific details, but it was whenever and whatever he wanted. That started from the day I moved in, possibility (sic) earlier, until I left when I was 16.”

• “Dallas and I were always at this homestead…while we were here, Dallas and I were having sex here too. Dallas and I were her (sic) after I moved out of being at (Ms MS’s) house.”

• “In relation to the sexual relationship between Dallas and me, because the sex was so frequent, it’s hard for me to describe any particular one incident.”

• “I'm pretty sure the sex between Dallas and I started when I was aged 14 years, it was pretty much when we got to (Ms MS’s), after being away camping, and I went back to Dallas’ place -in [supressed] Street was when we started having sex.”

• “In relation to the sex, it would happen in the bedroom and lounge room.”

• “He used to love it when I was on top of him, so his penis would be inside my vagina, it was what he wanted. He used to throw me around a little, like the sex was pretty rough. There were times when I used to think to myself, ‘Is this rape?’ he loved pulling my hair, really holding me, the sex wasn't a joy. We never made love or anything, it was nothing like that.”

• “He used to like hold my neck and we would have sex in the doggy style, so that's with me bent over the lounge and he would put his penis inside my vagina from the back. He never really got on top or anything, he would like it when I was on top, because it made him think I wanted it, so then if someone was to say something about us, he would say to me that I had wanted it.”

• “We could've had oral sex, but I just can't remember…he did ejaculate inside me on occasions and on other times, we would pull out before ejaculating and finish on my body.”

• “The sex would happen any time of the day and at least every day.”

OFFENDING AGAINST KT

Background:

19. From 2012, KT lived with her mother, SH, and brother BT, in Hamlyn Terrace.

20. Sometime in 2012, SH commenced and attended pole dancing classes at Morisset once a week, usually on a weeknight. These classes were in the evening and usually went for approximately one hour.

21. In 2013, the offender met SH and they commenced a relationship.

It is said the offender moved into the Hamlyn Terrace residence and lived there with SH, KT and BT.

22. While SH and the offender were in a relationship, he would often take care of KT and BT, when SH attended the pole dancing classes.

23. In June 2015, the offender and SH had a son.

24. Towards the latter part of 2015, the offender was away for months at a time working or fishing.

25. In 2018, the offender and SH separated for a short period of time before getting back together again. The pair separated again in October 2018 and ended up being separated since.

26. The offending occurred when the offender was residing at the Hamlyn Terrace residence and is said to have occurred on four distinguishable occasions. Each occasion will be referred to separately.

FIRST OCCASION - LOUNGE ROOM INCIDENT

Sequence 8 - aggravated indecent assault - s 61M2.

27. Sometime in 2014, when SH was attending her pole dancing class, the offender was caring for or looking after KT at the Hamlyn Terrace residence.

28. When the offender and KT were seated on a couch in the lounge room watching television, the offender started touching and rubbing KT around her thigh/groin area on the outside of her clothing with his hand.

29. In an attempt to stop what was occurring, KT moved over on the couch to create space between them. The offender, in response, pulled KT closer to him, instructed her not to move and removed her pants. The offender proceeded to rub and, “play with KT’s vagina with his hand.

30. KT described that the second occasion was skin to skin contact and the rubbing occurred on the outside of her vagina.

31. After the offender stopped, he instructed KT not to tell anyone.

32. At the time of the alleged offending, KT was aged either nine or ten years of age.

SECOND OCCASION - BEDROOM INCIDENT

Sequence 13 - sexual intercourse with a person ten or above years of age and under 14 years of age in circumstances of aggravation, that being under authority - s 66C(2).

33. The following week, the offender was again caring for KT while SH attended her pole dancing class. On this occasion, the offender led KT to his and SH’s bedroom under the pretence of showing her something on his phone.

34. When they entered the bedroom, the offender asked KT to perform fellatio on him. When she refused, the offender forced KT onto her knees by grabbing her hair and pushing her down.

35. KT performed fellatio on the offender while on her knees.

36. KT described herself as being dressed and the offender as wearing a shirt with his pants pulled down.

37. After some time, KT pushed the offender away.

Sequence 14 - sexual intercourse with a person ten years or above in age and under 14 years, in circumstances of aggravation, being under authority - s 66C(2).

38. The offender then picked KT up and placed her on the bed so that she was positioned on her back. The offender then removed KT’s clothes and proceeded to perform cunnilingus on her.

Sequence 15 - attempted sexual intercourse with a person of or above the age of ten years and under 14 years of age and in circumstances of aggravation, being under authority - s 66D.

39. After performing cunnilingus for a period of time, the offender then rubbed his penis on KT’s vagina and attempted to have penile/vaginal intercourse with her. When the offender was unable to penetrate her vagina, he continued to rub his penis against her vagina.

40. KT described the offender “…focusing on trying to get it in…” by having “…his hands down at his penis…fidgeting with it and trying to put it in…” When asked what KT meant by fidgeting, she described the offender putting “…it straight against the…hole bit of my vagina…” but that it hurt and would not penetrate her.

41. KT also described the offender touching her bottom and breasts during and after the attempt to have penile‑vaginal intercourse with her.

42. KT asked the offender to leave her alone, and she then left his bedroom and went to her own room.

43. KT was aged nine or ten at the time of the alleged offending.

THIRD OCCASION - NIGHTMARE INCIDENT

Sequence 12 - aggravated indecent assault, s 61M(2).

44. One night, KT had a nightmare and could not sleep. KT, as a result, went to her mother’s room and got into bed between her and the offender. As she was lying there, the offender reached over and started rubbing KT’s vagina with his hand for approximately ten minutes.

45. KT described the rubbing as on the outside of her clothing and the outside of her vagina.

46. KT recalls wearing a T‑shirt and shorts.

47. KT indicated this incident occurred before the tonsillitis incident and after the second and third occasion.

48. At the time of the incident, KT was aged nine or ten.

FOURTH OCCASION - TONSILLITIS INCIDENT

Sequence 16 - aggravated indecent assault, s 61M(2).

49. In December 2014, KT had tonsillitis. Sometime after she had seen a doctor about it, she was sleeping on what she described as the couch in the second lounge room. KT recalled the offender “…started playing with my vagina…and I woke up to him…”

50. KT described the offender using his hand when playing with her vagina and that the rubbing occurred on the inside of her clothing and on the outside of her vagina.

51. KT indicated that SH and BT were outside gardening at the time and that this occurred before SH became pregnant.

52: KT was aged ten years at the time.

COMPLAINT TO POLICE AND JIRT INTERVIEW

53. On 28 November 2019, SH took KT to Maitland Police Station, where she was interviewed by a police officer.

ARREST AND ERISP

54. On 5 December 2019, the offender was arrested at Maitland Police Station. The offender had his rights read and explained to him, in accordance with protocol. The offender participated in an electronically recorded interview, where he denied the allegations but indicated that he was rubbing KT when she was in bed with him and SH. The offender indicated, however, that he thought it was SH, and was sedated by medication that he was taking at the time.

13. In determining the objective seriousness of the offence contrary to s 66EA, I have, in particular, had regard to the factors referred to in Burr v R [2020] NSWCCA 282 as relevant to assessing its objective seriousness. As to the number of sexual offences, the offender had penile‑vaginal sexual intercourse with RC on an ongoing and regular basis throughout the course of each month over the course of a year. Clearly, the agreed facts accept that the offending occurred on many, many occasions by way of penile‑vaginal intercourse.

14. As to the nature of the sexual offences committed, in this case, each of the penetrative acts would have been contrary to s 66C(3), which, when charged separately, carries a maximum penalty of ten years’ imprisonment.

15. s 66C(3) offences, while still very serious, are towards the lower to mid‑range of offences encapsulated by s 66EA. The sex [with RC] was ”at times rough, and was whatever and whenever the offender wanted.”

THE AGE OF THE VICTIM RC AT THE TIME

16. The victim, during the period charged, was 15 years of age. As to the time over which it occurred, it is accepted that it was a period of around one year. As to the age difference between the offender and the victim, the offender was approximately 33 years of age at the time, and, consequently, there was an 18‑year difference in age between him and the victim.

17. As to the context in which the offender had access to the victim, the offender met RC through her friend’s mother, who he was at the time having a relationship with. Shortly after the victim’s 15th birthday, she moved in with the offender. While the offender initially met the complainant in what might be regarded as a family context, Ms MS was not the victim’s mother. She appears to have only been residing at the premises of MS on the basis that she was a friend of Ms MS’s daughter.

18. The offender did not have ongoing access to the victim as a result of the offender’s relationship with Ms MS, as within a short space of time RC and the offender were living in his premises and continued to do so except for some short periods throughout the time of the offending. Although he was substantially older than the victim, their relationship was not one of father or stepfather or even person in authority over her but one of simply an ongoing relationship. No doubt, considering the period of time, and that for some period of that time the complainant was attending school, it seems implicit from the facts that the offender was providing shelter and sustenance to the victim throughout the period.

19. There is no explanation in the facts as to why the complainant came to be living in the caravan at Ms MS’s premises. It is not unusual, however, for teenage girls to have difficulties in their relationship with their mothers when they enter their teenage years. I note that the facts indicate that at some period, she returned to her home for an apparently short period before returning to reside with the offender. The Crown’s submission in respect of this offence is that the offending falls toward the upper mid‑range of objective seriousness due to the number of sexual acts, the serious nature of those acts and the age disparity between the victim and the offender. The submissions on behalf of the offender include:

“In all the factors considered above and noting the absence of a number of otherwise aggravating features, it is submitted the objective seriousness of the offending involving RC must be around the mid‑range.”

20. In my view, “around the mid‑range’ includes the Crown’s assessment as towards the upper mid‑range of objective seriousness, and I accept that as an appropriate evaluation of objective seriousness.

21. The Court has had the benefit of a Victim Impact Statement from RC. It is eloquent testimony to the tragic consequences that are normally evidenced by the sequelae, that is, the impact on the victim of the offending. She refers to her school years having been taken away from her and not being allowed to go to school until required by the department and not being allowed to have social media or phone contact with family or friends because of the nature of her ongoing relationship with the offender.

22. She refers to the offender as having “ruined my life” and it taking years for her to bounce back to what she regards as her “real me after you destroyed me”. She has apparently, in order to achieve that, had to seek counsellors and take antidepressant and anxiety medication. She also refers to him as having never indicated any remorse or indicated that he was sorry for what he had done.

23. I have no doubt that the impact on the complainant was significant, particularly considering her age at the time and the duration of the offending. The sequelae of offending against children is a factor which must be taken into account, particularly pursuant to s 25AA. She also refers to the offender in terms of her being no longer scared because he would be in custody.

24. While I have noted that the potential sequelae are already significant and, in my view, likely to continue for many years, if not for the remainder of her life, I note that the Victim Impact Statement does not, in effect, take the impact as being outside what might be regarded as the ordinary tragic, expected consequences for the victim. In respect of the objective seriousness in relation to the offences committed against KT, I find objective seriousness as follows and for the following reasons.

25. Sequence 8 involves a mid‑level of objective seriousness for this type of offence, as the offender:

• rubbed her on the thigh/groin, above the clothing initially;

• the offender persisted after the complainant tried to move away and continued after pulling her towards him;

• he then had skin‑to‑skin contact with her genitalia or vagina underneath the clothing;

• The victim was aged nine or ten years at the time and the provision under which he was charged encapsulates all children under the age of 16. It might be said that she was potentially in the mid‑range of the expected age range for offences of this nature, even though they include newborns.

26. As to Sequences 13, 14 and 15, I find that these involve a mid‑high level of objective seriousness for the following reasons:

• the victim was nine or ten years of age, which is at the bottom of the age range applicable to these offences, being ten to 14;

• the Crown, in accepting the plea and considering the date range, is accepting that she was in fact ten years of age, as has the offender by his plea of guilty;

• the victim resisted the offender on two of those occasions, but he continued regardless. There was some physical force involved in him pushing the complainant to her knees by her hair before commencing the fellatio offence, being Sequence 13;

• Sequence 15 involved the offender also touching the complainant’s bottom and breasts during and after the attempted vaginal intercourse.

27. The legislation makes no distinction between the different acts of sexual intercourse as defined in the legislation. The particular circumstances in which an act occurs may provide for some distinction. In relation to Sequences 13, 14 and 15, they were three separate acts committed on the one occasion, but in my view, there is no real utility in trying to distinguish between a particular level of objective seriousness for each individual act. As I have said, they involve a mid‑high level of objective seriousness.

28. Sequences 12 and 16 involve a low to mid‑range of objective seriousness for the following reasons:

• Sequence 12 involved rubbing on the outside of the victim’s vagina, but for a period of approximately ten minutes;

• Sequence 16 involves rubbing on the vagina underneath the clothing, that is, skin‑on‑skin contact;

• In respect of both offences, the victim was, as expressed by the Crown, nine or ten years old, when the offence is applicable for all children under 16.

29. The Victim Impact Statement of KT is again an eloquent example of the serious and significant adverse sequelae that are occasioned to children by sexual offending against them by adults. She talks about requiring and consulting a psychologist for her mental health, as well as counsellors at school, and having suicidal thoughts while struggling with her schoolwork. Apparently, the offending continues to haunt her on a daily basis.

30. She had particular problems when, after the offending, she commenced high school and was unable to concentrate in class and would occasionally have panic attacks. She indicates that she is scared when going out in public, particularly when near boys, and having a strained relationship with her mother after having not disclosed this offending for some period of time after it had occurred. She says:

“I miss feeling excited about life, and it’s like my sparkle is gone. I miss the days when I was never scared. I miss when I wouldn't struggle with life and I miss when I didn’t struggle as much at school.”

31. Again, I accept that the impact on her has been significant and that it is likely to continue for many years, if not for the balance of her life, and will affect the way in which she relates to other adults.

32. In respect of the offending against RC, there is one statutory aggravating circumstance which applies. That is, pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act, that the offender was on conditional liberty at the time. As I have previously referred to, the offending took place over approximately a one‑year period. The offender had been placed on a s 12 bond in relation to an offence of common assault. That bond was imposed on 17 May 2010. So there was, in fact, an overlap in this offending of conditional liberty for a period of approximately four months from the commencement of the period of the offending conduct, but not, of course, for the whole of the period of one year.

33. In relation to the offending against KT, the offender was in a relationship with the victim’s mother, and indeed, during the course of their relationship, the mother became pregnant and gave birth to the offender’s child. He was in what can be regarded as a position of trust, looking after KT while the mother was not present, or at least not present in the room. That statutory aggravating factor, pursuant to s 21A(2)(k), is an aggravating factor in respect of each of the three s 61M(2) offences but not in respect of the offences being Sequences 13, 14 and 15, as, in each case, the fact that she was under his authority at the time is an element of the offence itself.

34. In addition, in relation to each of the offences against KT, all of the offences were committed in KT’s home, and that provision applies whether or not the accused was entitled to be present at the victim’s home. However, in this case, he was entitled to be there, as he was in a relationship with her mother and was supervising the complainant from time to time or generally throughout the period.

Subjective Matters

35. Before the Court in relation to the offender, who is now 44 years of age, is the following: his New South Wales criminal history, which, as a matter of convenience, I will refer to now. It is not of particular seriousness. There are a number of offences of common assault, an offence of destroying or damaging property, special range PCA and drive/never held licence; possess prohibited drug and owner of a dog that attacked a person. I note that, in relation to all of those matters, he has either been placed on bonds pursuant to s 9 or s 12 or fined.

36. I am of the view that his past criminal history is not of any significant adverse effect in relation to sentencing in this matter, other than it can clearly be said that he has offended in different ways in the past, and each of those offences was of a relatively minor nature, considering that they were dealt with in the Local Court in the fashion that I have referred to.

37. Also before the court is a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report. I note that having been charged on 5 December 2019, he was granted bail and released on bail on 8 April 2020. That was solely in relation to these matters, and accordingly, a period of 126 days of pre‑sentence custody must be taken into account.

38. The offender did not give evidence on sentence, and the additional material from which subjective matters may be determined is a report of 24 May 2021 from Ms Sarah Brann, being a psychologist, and a further report from Ms Lisa Zipparo, being a clinical neuropsychologist with Dr Susan Pulman & Associates. The report is dated 24 June 2021.

39. In addition, there is a printout from the Greta Centre medical records dated 21 May 2021, which indicates that he was prescribed Mirtanza, being an antidepressant, on 17 February 2021 and previously on 14 December 2020. Attached with that is a Greta Medical Centre new patient information form in relation to the offender, that centre’s privacy consent form and a Centrelink medical certificate referring to poor sleep, low concentration, poor appetite and stress, stating that he would be unfit for work or study from 17 February 2021 to 17 April 2021. The doctor providing the certificate was Dr Azhar Shabbir.

40. There is a further medical certificate indicating an incapacity to work or study from 14 December 2020 to 14 February 2021, provided by Dr Marwa Fathi. The symptoms described in that medical certificate relate to poor sleep, low concentration, poor appetite and stress.

41. Subjective matters I have taken from that material: The offender is the youngest of seven children to his parents. He apparently had a close relationship with both parents. His father and mother died within six months of each other in either 2013 or 2014, that is, after any of the offending against KT.

42. He has distant relationships with some four of his siblings and telephone contact with one brother and one sister. He has not spoken to three of his siblings since his parents’ death, due to a family dispute about the estate and those siblings’ attitudes towards him in that respect. His father was a linesman for a telecommunications company and his mother a cook in a nursing home. He described both his parents as working hard to provide for the family and possessing “bubbly personalities”, although neither of them liked confrontation or drama.

43. He referred to his parents as not experiencing regular conflict or speaking about issues in their relationship, which Ms Brann referred to as suggesting he was exposed to positive role‑modelling of relationships from his parents, although he said there were many things in the family not talked about, which he referred to as “deep, dark family secrets” that his parents did not want aired, that while his parents spoke individually with each child, some issues were not discussed openly within the family, the family valuing maintaining positive social images outwardly to the community. He described his parents’ marriage as a happy one.

44. He denied being exposed to any domestic violence within his parents’ relationship, although he described his eldest brother, some 14 or 15 years older than him, being violent since childhood, and being scared of him. He described that brother as having been violent at family events while intoxicated as an adult, and while he referred to his eldest brother as having sexually assaulted three of his sisters in childhood, he was not aware of that abuse until it was disclosed to him in 2020, that is, post this offending.

45. Discipline within the family was provided by way of being struck with a jug cord or hit with a wooden spoon. Ms Brann refers to this as “unhelpful role‑modelling”, which may have normalised aggression. However, the offender denied any experiences of sexual abuse or neglect in his early life.

46. He moved out of home at the age of 14 to pursue employment. At the time of the report, he had been residing in a new partnership. As a child, he attended two primary schools and two high schools. He found the academic aspects of school difficult but achieved average grades and was able to establish friendships within the school context. There was some bullying at school of him in relation to his sister, who, at the age of nine years, lost a leg after surgery for a club foot and a medical mistake resulting in gangrene, causing the leg to have to be amputated.

47. Some years after that, his older sister suffered a drug overdose, which required the family to attend in Sydney to see her in hospital, and he refers to an older sister as running away from home: at the age of 15 to work as a prostitute in Sydney and then developing a significant drug addiction. His oldest brother created some stress for the family, in that at one time he was charged with killing a pedestrian while intoxicated, which created both emotional and financial stress for the family. He was expelled from school in Year 9, after an incident involving a female teacher, when his response to her was to threaten to “blow her head off with a shotgun”, although it was an idle threat, him not having access to a gun at the time.

48. He has apparently worked in various positions, including at a sawmill, commercial fishing, painting, game harvesting and at an abattoir. Prior to Ms Brann’s report, he had recently commenced his own business, involving painting and gardening. However, the work was inconsistent, and he had been receiving Centrelink benefits. He has apparently never been terminated from a position but has quit several jobs without providing notice, due to difficulties with authority figures in the work setting. His longest employment position has been two years, but even that was on and off.

49. He has had a couple of periods of illness in his 20s as a result of a virus or from the fumes he was exposed to while working at the abattoir. He has once been rendered unconscious in an assault on him some 15 or 20 years ago, but he did not present to a GP or a hospital to have any potential neurocognitive injuries assessed.

50. He also claims to have been assaulted by other inmates on a number of occasions whilst briefly imprisoned in 2019, and bleeding from his ear for a period of two months from one of those assaults. However, again, he did not seek any medical attention and did not use the medical emergency alert in his cell or seek the assistance of custodial officers. Ms Brann said that he endorsed experiencing minimal symptoms consistent with any traumatic brain injury as a result of those matters. He also denies any history of self‑harm or suicidal behaviour.

51. He provided a history of infrequent alcohol consumption. He claims that during the period of the sexual offending, 2010 to 2014, he drank excessively on several occasions. He began smoking cannabis at age 14 and continued to use it on a daily basis since that age. His intake was at its heaviest between his late 20’s and mid 30’s, between 2010 and 2014; he said he was smoking two grams of cannabis a day, and he reported using amphetamines in the years preceding the sexual offending.

52. Over the period of the offending, 2010, 2014, he reported using 3.5 grams of methylamphetamine or “ice” every three days, and also hallucinogens on weekends. He stated that since his arrest in December 2019, he had been abstinent from all substances. To Ms Zipparo, he said that:

“He had never accessed drug and alcohol counselling but had always managed to stop abusing substances when he made the decision to do so.”

53. That is, of course, an indication that his use at all times was controlled and that he was not significantly addicted at any time.

54. At the time of the psychologist’s report (24 May 2021), he had been in his current relationship for some three months, having known his current partner for approximately two years. He has a history of four significant prior relationships, the longest being of four years’ duration. He has four children from three separate relationships, referred to in Ms Brann’s report as being aged 17, 17, 15 and five. However, in Ms Zipparo’s report, he has referred to having two daughters aged 18 and 15, a son who is 16 and his youngest son, six years of age. Apparently, he only has regular contact with his youngest son, who he has only been able to see while supervised in public places.

55. He saw his current relationship as being a caring one. He denied possessing any sexual fantasies, and in relation to his having watched pornography in his late 20’s on a weekly basis, he indicated that his search terms were to look for pornography featuring mature women. Ms Brann states:

“It’s unclear if Mr Callaway minimised or sanitised his history of pornography use, I note that his stated pornography preferences are inconsistent with aspects of the current offending before the Court, where he was in an established relationship with an adult woman on two occasions where he sexually offended against two child victims. Mr Callaway stated that during the period of his sexual offending there was no decline in the frequency of his sexual contact with his adult partners. During the offending against the second victim, his partner was pregnant with his youngest child.”

56. The report goes on to refer to his sexual offending in relation to RC and its frequency, suggesting that he was having sexual intercourse with RC more frequently than he was having sex as part of his adult relationship, which he apparently accepted as an appropriate assessment. Her report contains the following statement:

“However, he engaged in victim blaming (in relation to RC) and shaming by suggesting that the victim initiated sex with him and was sexually promiscuous.”

57. Ms Brann also outlined that he:

“has been unfaithful with his relationships and twice offended sexually against children, which suggests difficulties inhibiting sexual urges. Mr Callaway denied any difficulties managing the frequency of his sexual urges or impulses, but this is in contrast to aspects of his reported history and suggests a lack of insight.”

“Based on his responses, it appears that he possessed awareness that his sexual contact with the victims of the current matters before the Court was problematic and illegal.”

58. The last part of that statement was to address issues that had arisen during the psychologist's consultation with him in relation to comments he made as to believing that the age of sexual consent was 18. Ms Brann went on to state:

“While Mr Callaway’s plea acknowledges wrongdoing, his account of the offending lacked accountability and he presented with a number of offence-related cognitive distortions, which are not uncommon in untreated sexual offenders. He engaged in victim-blaming and shaming by suggesting that his first victim initiated the sexual contact with him and that she was sexually promiscuous."

and claimed that any flirting or touching during the camping trip was initiated by the victim.

“Mr Callaway claimed that he was not aware of the first victim’s age and took no accountability for it being his responsibility to ascertain the age of people he chose to have sexual contact with. He also externalised blame onto the victim’s caregivers by stating that, ‘they dropped her off at my house’ after the victim reportedly had an argument with her mother at a time when Mr Callaway had been consuming alcohol and was reportedly intoxicated. He stated, ‘After that, she lived with me.’ This seemingly demonstrated poor boundaries, particularly if he experienced sexual attraction towards the victim, and he acknowledged that he had kissed her on a camping trip prior to this. Mr Callaway did not acknowledge his role in allowing this to happen or his decision making or lack of assertiveness to set healthy boundaries around this by refusing to let the victim stay at his home. He stated that, “It was odd to have her living with me.” Further, Mr Callaway stated: “I don't really know how the sexual behaviour came about, it was a two way street. He stated that he never discussed his first victim's age with her or clarified it with anyone else and assumed that she was of legal age to engage in sexual contact."

59. In respect to the second victim, the psychologist points out that the difference in ages would have been striking, and that the offending occurred during times when Mr Callaway was left to care for the victim, and that, to her, his account of the offending was distorted and lacked accountability. As he:

“…stated that on one of the four occasions of sexual offending, he mistakenly touched the victim’s buttocks when the victim was sleeping between himself and the adult partner. He offered that he was taking heavy medications and that when he realised, he stopped straight away. He again engaged in victim-blaming by claiming the victim entered the bathroom while he was showering, despite him having locked the door and reportedly telling the victim to get out."

60. Further in the report, Ms Brann opines:

“Mr Callaway lacks insight into his position of power and authority as an adult male in comparison to the young age and immaturity of his victims, which is further exacerbated by his role as the victim’s step-father. Mr Callaway offered that with the benefit of retrospect, he wishes that he had avoided the situation, that he does not know why he did not. Mr Callaway stated that his victims may have experienced mental harm. He presently lacks awareness of potential victim impacts and would benefit from increasing his insight into this by sex offending intervention.”

61. It is also expressed that while he describes symptoms of generalised anxiety, they did not meet the criteria for any mood disorder, and they describe his mental health as currently stable and positive. Ms Brann, utilising Static- 99 Revised and Stable-2007, assessed his risk of re-offending as moderate.

62. She also refers to the offender as denying deviant sexual interests in children, but states:

“…he has sexually offended against one post-pubescent and one pre-pubescent female victim. He did so while reportedly having access to appropriate sexual outlets with adult relationships, and there is some evidence of a preference towards young females. The substance abuse he was reportedly engaging in around the time of the sexual offending would be expected to have further reduced his capacity for decision making and may have contributed to disinhibited behaviour. He presently evidences a distorted account of his sexual offending in comparison to the agreed facts…”

63. In Ms Zipparo’s report she refers to, as follows:

“Mr Callaway described a significant family history of mental illness and substance abuse. He said all of his siblings except for two abused drugs and alcohol. One of his siblings had attempted suicide and he believed his father had suffered from depression as a result of his own traumatic upbringing.”

64. I have previously referred to one of his sisters losing a leg and one becoming a prostitute, and one attempting suicide, and his estrangement from most of his siblings. Ms Zipparo’s report provides some additional information in that it is said that at the age of 15 his parents retired and moved away, and he was then left to be supervised by his sister and her husband, his sister then introducing him to drugs and alcohol, resulting in significant drug and alcohol abuse throughout his adult life.

65. As I have previously noted, he also informed her that he has always managed to stop abusing substances when he made the decision to do so. Ms Zipparo refers to Ms Brann's finding that he was a moderate risk of re-offending, and appears, from her report, to agree with that assessment. Ms Zipparo carried out a number of tests for the purpose of her neuropsychological assessment and the results of those tests are in her report, particularly because of the reported head injury when assaulted some 20 or so years before. She states as follows:

"Current neuropsychological testing found Mr Callaway is functioning in a low range of intellectual ability, being in the Borderline range, placing him in the bottom 7% of the population. Cognitive abilities were largely commensurate with his intellectual function, being mainly in the Borderline to Low Average ranges. There were no observed impairments of memory function, with his verbal memory in the Average range and his visual memory in the Borderline to Low average ranges, which was below his verbal memory but not sufficiently reduced to be impaired. Mr Callaway showed poor skills in mental flexibility and problem solving, being unable to find all potential solutions and tending to repeat incorrect responses.

Previously observed poor social and other adjustment skills are likely in part due to Mr Callaway's low intellectual capacities. Mr Callaway is impulsive and has significant difficulties regulating his behaviours. These behavioural adjustment issues are commensurate with the borderline executive functioning capacities observed at the current assessment.”

66. As a result of what he informed Ms Zipparo of in relation to his past history, she opined that it was highly likely that Mr Callaway's reported amnesia for childhood events is a trauma response, suggesting a diagnosis of complex PTSD. Ms Zipparo did not, in fact, make a diagnosis of complex PTSD, and it turns on the offender having said that while he remembers a happy childhood, riding his bicycle and other matters, he remembers little of happiness in relation to associating with his parents or his siblings in his young years, although he has not asserted at any time any significant problems in his youth, but rather claims a lack of memory. Ms Zipparo said in summary:

"Mr Callaway’s neuropsychological profile is one of a person with low intellectual capacity and difficulties with executive functioning, including poor mental flexibility, problem solving and impulse control. However his day‑to‑day memory function is not impaired and his perceived problems with memory are most likely due to his high levels of anxiety.”

67. It has been submitted on behalf of the offender by Dr Anton Hughes, counsel for the offender, that, in this matter, Bugmy v the Queen (2013) 249 CLR 571 is appropriate to take into account, that is, that his moral culpability may be reduced by the circumstances of his upbringing.

68. However, in my view, the material before the Court does not disclose an environment of systemic or endemic sexual, physical or psychological abuse, alcoholism and substance abuse or of any particular social disadvantage or deprivation, with the exception that there was some inappropriate exposure, commencing at about the age of 14 or 15, to drugs and alcohol, but noting again that these are matters that the offender claims to have always had within his control simply by deciding whether he would or would not use them and that, since being charged, without the assistance of any counselling or treatment, he has, in fact, ceased the abuse of drugs and/or alcohol.

69. In the circumstances, I do not accept that the principles or factors referred to in Bugmy apply to this offender in such a way as to reduce his moral culpability for the offending. They however, particularly his use of alcohol and prohibited drugs - must still be taken into account in the instinctive synthesis of determining an appropriate sentence. I note that in R v Dungay [2020] NSWCCA 209, N Adams J, with whom Davies J and Price J agreed, observed that:

"Although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis.”

70. As I have said, the circumstances of his youth do not indicate that it is appropriate to apply the reasoning in Bugmy, but the matters that I have referred to are still relevant to the instinctive synthesis of determining the sentence. The reports on behalf of the offender assess him as being a moderate risk of re-offending.

71. Accepting that assessment indicates that the prospect of rehabilitation must be guarded, particularly in the circumstances of the material contained in and already quoted from Ms Brann’s report, as to his victim-blaming and his apparent continuing lack of awareness of the potential victim impacts of his offending, that is his lack of insight, although of course, it must be allowed that his level of intellectual functioning may have some impact on his ability to have such insight, but it is otherwise evident that he actually appreciated at the time of the offending that he was, in fact, committing offences.

72. In this matter, the offender has pleaded guilty to each of the offences at an early time, and as I have referred to, he is entitled to 25% utility discount in respect of each offence. He did not give evidence on sentence, and he has not expressed remorse or contrition in respect of any of the offences. Neither the report of Ms Zipparo nor the report of Ms Brann indicates that the offender has expressed remorse or contrition to them, and I have no doubt that had he done so, they would have referred to it in their reports. Indeed, remorse or contrition, in my view, is somewhat inconsistent particularly with the report of Ms Brann. In those circumstances I indicate that a plea of guilty does not--

O’CONNOR: Your Honour, I apologise for interrupting--

73. HIS HONOUR: --of itself necessarily indicate remorse or contrition, I will simply state that there is no acceptable evidence of remorse or contrition in relation to any of the charges or the victims.

74. Now, I intend to proceed by way of an aggregate sentence, and it’s first necessary to state the indicative sentences, but before I do that, could I just ask of the parties whether there is any significant error or omission that I have committed in my reasons so far?

O’CONNOR: Your Honour, there's no error in the submission of the Crown, but did your Honour intend to address the issue of the diagnosis - or actually doesn't quite amount to a diagnosis of PTSD, and whether or not your Honour has made a finding in relation to whether that affects the weight to be given on general deterrence or whether it affects his moral culpability as contended by the defence in this matter.

HIS HONOUR: Yes, I think, Mr Crown, what I did indicate is that the highest it went was that it was likely, not that there was any actual diagnosis of what was referred to by Ms Zipparo as complex PTSD, and there is no evidence that even if he suffered from complex PTSD, it had any causative relationship to this offending or in any way would reduce his moral culpability for the offences.

O’CONNOR: Yes, thank you, your Honour, and just in terms of whether your Honour has made a finding as to its effect on the weight that should be given to general deterrence?

HIS HONOUR: Yes, I will indicate to Mr Crown that in my view it cannot have any effect on reducing the need to give weight to general deterrence.

O’CONNOR: Thank you, your Honour, they're the only matters I wish to raise at this stage.

HIS HONOUR: All right, thank you. Ms Dean, is there any matter?

DEAN: Your Honour, I'm somewhat conservative in my commentary given I'm without the assistance of counsel at this moment, so I don't wish to raise anything, I do note that the submissions of counsel have put the defence case at its highest, so nothing from me at this stage, your Honour.

HIS HONOUR: I have taken those submissions into account, even though I have not referred to them in complete detail. All right, thank you, all right.

75. I need to proceed by way of the indicative sentences before providing the aggregate sentence.

76. In relation to RC:

Sequence 21, persistent sexual abuse of a child under 16 years of age, being 15, contrary to s 66EA(1), noting again that the maximum period of imprisonment is 25 years and that there is no relevant standard non-parole period, the indicative sentence after taking into account all the matters that I have referred to, including the 25% utility discount and also the fact of conditional liberty for approximately four month period at the commencement of the period of term, the indicative sentence is nine years and nine months imprisonment.

77. In relation to KT:

Sequence 8, being an offence contrary to s 61M(2), assault person under 16 and at the time commit an act of indecency, the complainant being nine or ten at the time, the maximum penalty being ten years and the standard non-parole period being eight years. I note in relation to the standard non-parole period and in relation to each of the other offences where there is a standard non-parole period, that in each case, these matters were pleas of guilty, reducing the relevance of the standard non-parole period to the sentence, although it remains, just as the maximum sentence does, a relevant guidepost.

78. The indicative sentence after the 25% discount also taking into account that in effect, in relation to that, although not part of the charge itself, there was an aggravating circumstance of being under authority, is two years, and because there is a standard non‑parole period, the indicative non‑parole period is one and a half years, or 18 months.

79. As to Sequence 13 and Sequence 14, each being contrary to s 66C(2), sexual intercourse with a person of or above the age of ten and under 16, noting that she was ten years of age and the aggravating circumstance as part of the charge itself, being under authority, the maximum sentence is 20 years, and the standard non‑parole period is nine years. After a 25% discount, the indicative sentence is a term of imprisonment of seven years, with an indicative non‑parole period of five years, three months.

80. As to Sequence 14, Sequence 13 being an act of fellatio, Sequence 14 being cunnilingus and contrary to the same section and same penalty as Sequence 13, the indicative sentence is again seven years, with an indicative non‑parole period of five years, three months.

81. As to Sequence 15, contrary to s 66D, being an attempt to commit an offence contrary to s 66C(2), that is, an attempt of sexual intercourse, being penile/vaginal intercourse, with a person ten years or above but under 16 and under authority, the maximum penalty provided is 20 years, and there is no relevant standard non‑parole period, as it is an attempt offence. The indicative sentence is six years and six months after the 25% discount. As there is no standard non‑parole period, there is no need to provide an indicative non‑parole period.

82. In my view, there is little cause to distinguish between the attempt in Sequence 15 and the two previous Sequences, 13 and 14, of fellatio and cunnilingus respectively. In my view, the trauma to the victim and the intent itself indicates that a sentence of exactly the same order may have been provided, but I will give him the benefit of an indicative sentence of six months less.

83. As to Sequence 12, being an offence contrary to s 61M(2), being assault accompanied by an act of indecency on a child under 16 years of age, the child being nine or ten, maximum penalty provided is ten years, and there is a standard non‑parole period of eight years provided by the legislation. The indicative sentence, after the 25% discount and taking all matters into account, is one of 18 months, with an indicative non‑parole period of 13 and a half months.

84. As to Sequence 16, being an offence contrary to s 61M(2), again, an assault accompanied by an act of indecency, the victim being under 16 years of age, to wit, nine or ten, the maximum penalty is ten years, and again, the standard non‑parole period is provided as eight years. The indicative sentence after the 25% discount is two years, with an indicative non‑parole period of one and a half years.

85. In addressing the aggregate sentence there is a need to take into account that there was offending against two entirely separate victims: in relation to RC, the single offence over a one‑year period, and in relation to KT, offending on four separate occasions, noting that the second occasion related to three separate offences, Sequence 13, fellatio, Sequence 14, cunnilingus, and Sequence 15, attempt penile/vaginal intercourse. In respect of those three sequences occurring on the one occasion, I accept that there should be some reasonable amount of concurrence.

86. Having taken into account all of the matters that have been previously referred to, the Court must then determine an aggregate sentence. I have taken into account s 25AA of the Crimes (Sentencing Procedure) Act, subs (1):

“A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing and not at the time of the offence.”

87. The offence against RC occurred in the period from August 2010 to August 2011, and the offences against KT occurred in the period from 1 January 2014 to 31 December 2014. However, I must sentence on the basis of current sentencing patterns and practices. I am uncertain as to whether there is any significant difference between sentencing at those times or now, except for the fact that, in the intervening period, there has been the Royal Commission into sexual offending against children, which has significantly affected the community’s knowledge of such offending and resulted in a number of legislative changes, such as, in fact, s 25AA. Subsection (3) provides:

"When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts.”

88. I have not been referred to any recent psychological research, but as most judges sitting on this bench, I have the common experience of this court in relation to such offending and, of course, those matters where there have been appeals to the Court of Criminal Appeal. I have turned my attention during the course of determining the indicative sentence for each of the individual offences and also to the aggregate sentence, to the statistics available through JIRS. They are, as the Court of Criminal Appeal has said on many occasions, a blunt instrument. They nonetheless remain of some utility, and I have perused many of the cases referred to in the JIRS statistics. That is, I have referred to the cases individually by drilling down through the statistics.

89. It is necessary when determining the aggregate sentence to take into account the totality of the offending, as indicated by the individual offences for which the offender has been dealt with. Both specific and general deterrence are significant matters to take into account in respect to the sentencing of this nature, and I have taken totality into account in determining the aggregate sentence. There of necessity must be some accumulation between the different charges and between the two victims.

90. Accordingly, the aggregate sentence is a non‑parole period of ten years with a balance of term of three years and six months. That is a total term of sentence of 13 years and six months. I have backdated the sentence by 126 days from 27 August 21, when I refused to continue his bail, the 126 days being the period of pre‑sentence custody. I have also rounded down the non‑parole period by one month and 15 days to make it an even ten years and to allow for an even three years, six months of parole. It will be noted in relation to each of the indicative sentences and also in relation to the aggregate sentence that I have not found special circumstances other than that rounding down of the aggregate sentence non‑parole period.

91. The period of parole allowed for in this sentence is already six months in excess of the period which will provide for parole supervision. That is provided by the regulations in the ordinary course. The offender already apparently, according to the evidence, has total control of his consumption of alcohol and prohibited drugs, which in my view on the evidence had little or nothing to do with this offending, even if it might have assisted him on occasions to have poor judgement. In those circumstances where the sentence itself already incorporates a period of parole in excess of the likely period of supervision, there is no further need for special circumstances to reduce the non‑parole period below the statutory relationship in the circumstances where the main purpose for doing so is to assist in rehabilitation.

88. The offender will have a lengthy period in custody and the opportunity to participate in all programs that are provided for sex offenders, and he will be supervised for a period of at least three years.

Is there anything else Mr Crown or Ms Dean?

O’CONNOR: Yes, your Honour, there's just a couple of matters arising. The first, I think, has probably already being dealt with by your Honour, but I just want to clarify, pursuant to s 54B subss (3) and (5), your Honour is obliged to identify reasons for setting a non‑parole period that is longer or shorter than standard non‑parole period for the indicative offences. I note that your Honour did say that because of the plea of guilty, the standard non‑parole period has less effect in this matter. Did your Honour seek to identify the plea of guilty as a reason for departing from standard non‑parole period and setting the indicative non‑parole period?

HIS HONOUR: That's why I in fact referred to it, Mr Crown.

O’CONNOR: I just wanted to clarify that. That was my understanding. There are two further orders that the Crown seeks in this matter. The first is pursuant to s 12 subs (2) of the Crimes (Domestic and Personal Violence) Act, and that is simply for an indication that these offences were domestic violence offences to be recorded on the offender's criminal history.

HIS HONOUR: Yes, I will make the necessary order under that section to indicate that each of the offences for which he's been dealt with today are to be recorded on his criminal history as domestic violence related.

O’CONNOR: The second order that the Crown seeks is pursuant to s 39 of the Crimes (Domestic and Personal Violence) Act, and that is for an Apprehended Domestic Violence Order. There is an Apprehended Domestic Violence final order in place for KT, but the Crown seeks ADVO pursuant to s 39 with respect to RC, and that would be pursuant to s 39(2)(a), that is an Apprehended Domestic Violence Order that would last for the duration of the term of imprisonment, plus two years, your Honour.

HIS HONOUR: That would take it to, in effect, two years after the 13 and a half years has expired, Mr Crown.

O’CONNOR: That's quite correct, your Honour, and the Crown seeks an Apprehended Domestic Violence Order in those terms.

HIS HONOUR: I have not expressed the actual dates, which I must do.

93. The term of the sentence being 13 years and six months with a non‑parole period of 10 years, being backdated by 126 days from 27 August 2021, the sentence commences on 23 April 2021 and he will be first eligible for parole on 22 April 2031. The balance of term or parole period is three years and six months commencing on 23 April 2031. It will expire on 22 October 2034. I will make an Apprehended Domestic Order pursuant to s 39(2)(a) of the - I do not have it here.

94. HIS HONOUR: All right, pursuant to that section of the Crimes (Domestic and Personal Violence) Act, I order that the offender not have any contact, direct or indirect, with the victim, KT.

O’CONNOR: Sorry, your Honour, it’s RC that the Crown seeks the ADVO in favour of.

HIS HONOUR: Sorry, in respect of RC, before 22 October 2036.

DEAN: I beg your pardon, your Honour, I misheard the last year of that order, please.

HIS HONOUR: The order will run until 22 October 2036.

DEAN: Your Honour, if I might just confirm because I've had some feedback on a link, the date of the sentence commencing is 23 April 2021?

HIS HONOUR: That's correct.

DEAN: Thank you.

HIS HONOUR: First eligible for parole on 22 April 2031.

DEAN: Thank you, your Honour.

95. HIS HONOUR: The total sentence expiring 22 October 2034. Mr Callaway, you need to understand that you will not be automatically released at the end of the non-parole period, that is on 22 April 2031. It is a matter for the authorities to determine if you are released on that date and the conditions of your release. It is important that while in custody, if you wish to be released at the earliest possible time, which is that date, you complete all courses that you can while in custody particularly in relation to sexual offending, and also adhere to all prison regulations, as breaches of prison regulations and failure to take advantage of all courses that might assist you will be significant factors taken into account by the authorities when determining whether to release you and at what time, so, please, take account.

OFFENDER: Thanks, your Honour.

**********

Amendments

01 March 2023 - Amended to comply more fully with NPO.

Decision last updated: 01 March 2023