R v Cassell

[2022] NSWDC 471

District Court

New South Wales

Medium Neutral Citation:

R v Cassell [2022] NSWDC 471

Hearing dates:

26 August 2022, 28 September 2022

Date of orders:

28 September 2022

Decision date:

28 September 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 9 years a non-parole period of 5 years 10 months

Catchwords:

CRIME – Have sexual intercourse with child aged 14 to16 years - Intentionally incite child aged 14 to16 years to sexually touch - Stalk/intimidate intend fear physical etc harm (personal)

SENTENCING - Relevant factors on sentence – early guilty plea - practical remorse and acceptance of responsibility - multiple offences - two victims- - course of conduct - objectively serious offending persistent - victim impact- offender has a background of hardship- lesser moral culpability - deterrent sentence still required – ill health - assaulted in custody - impact of COVID -special circumstances

Legislation Cited:

Crimes Act1900

Crimes (Domestic & Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

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

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Burrell v R (2000) 114 A Crim R 207; [2000] NSWCCA 262

Butters v R [2010] NSCWCCA 1

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

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

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

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

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

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

Nguyen v The Queen [2016] HCA 17

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v KNL [2005] NSWCCA 260.

R v L, NSWCCA unreported, 17/6/1996

R v Millwood [2012] NSWCCA

R v Palu [2002] NSCWCCA 381

R v Qutami [2001] NSWCCA 353

R v Sellen (1991) 57 A Crim R 313

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

R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383

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

Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14

Texts Cited:

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR

Category:

Sentence

Parties:

Wayne Anthony Cassell (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr T McKenzie (for the offender)

Solicitors:
Legal Aid NSW (for the offender)
Ms K McCrossin (for Director of Public Prosecutions)

File Number(s):

2021/00023694

Publication restriction:

Pseudonyms have been used for the names the child victims. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.

SENTENCE – EX TEMPORE REVISED

1. In January 2021, during the school holidays, two 15-year-old girls, Elizabeth and Kate, snuck out of home at 3am. They had planned to meet and catch a train into Wollongong to go to the beach to watch the sunrise. Their adventure took a terrible turn when they met Wayne Cassell. What occurred that morning will have an impact on them for many years, it will also result in Cassell serving a lengthy gaol sentence.

2. There are agreed facts. I have sought to reduce them to the necessary bare minimum, but I must say enough to convey what was done and how the acts came about. There is no need however, to repeat all the intimate details. To do so would only add to the distress of the complainants; for, although their names have never been publicly revealed, others in the community do know them. In this judgment each complainant has been given a pseudonym.

3. Elizabeth had met Cassell once before, in 2020. While Elizabeth was waiting for Kate at the local 7-Eleven she was approached by Cassell. They spoke for some minutes and during the conversation Cassell asked, that is, indicated, for her to perform sexual acts on him. She repeatedly said “no”: sequence 3, s66DB(b) Crimes Act1900.

4. At 4:00 am they were joined by Kate. Elizabeth told Cassell they were both 15. At the time Cassell was 43 years old and the father of teenagers.

5. The girls then went to a local McDonalds, Cassell went along with them. As he did so Cassell made a sexual gesture to Elizabeth indicating masturbation: sequence 4 on a Form 1, s 66DD(a) Crimes Act.

6. At the McDonald's Elizabeth told Kate about how Cassell had been pressuring her. The girls asked McDonald’s staff to keep him away from them. After they had received their order, the staff escorted them out and checked the girls had safely left, by going in a different direction to Cassell.

7. The girls then went to a railway station, but there they were again approached by Cassell. He told them they had made the “wrong move”. He then made a series of threatening comments designed to frighten and intimidate them. He threatened violence and told them he had violent friends. He said that he would tell their parents they were out. He mentioned a past incident in which Elizabeth had been the victim of an assault. His comments left the girls anxious and scared. Kate tried to calm the offender. He said he was going to Wollongong to find his son and that he was angry at them for what they had told he staff at McDonalds: sequences 5 and 6, intimidation offences, s 13(1) Crimes (Domestic & Personal Violence) Act 2007.

8. Cassell joined them on the train to Wollongong. Elizabeth messaged a friend, telling her about Cassell’s threats and that she was anxious and terrified. Cassell told Elizabeth he was still angry with her, he threatened to tell her parents she had done drugs at his house if she did not do what he asked her to do at the 7-Eleven.

9. Cassell went with the girls after they left the train and walked towards the beach; at times he touched Elizabeth. The girls spoke about what they might have to do to get rid of the offender, however, at Wollongong’s mall the offender went off in a different direction and the girls continued to the beach.

10. When they arrived, at about 5:30am, Cassell was already there. He told them how “pissed off” he was with them and that he would tell Elizabeth’s mother unless they did what he wanted.

11. The girls agreed to watch Cassell masturbate on condition he did not do anything to hurt them.

12. The girls changed into their swimming costumes and the three went to a secluded spot; there Cassell touched both girls. He then took his penis out of his shorts. He rubbed Kate’s arm and placed her hand on his penis. Kate then masturbated him. Although Cassell said “only if you want to” it is accepted she did so only because of the pressure on her: sequence 7 on a Form 1, s 66DB(b) Crimes Act.

13. While Kate was masturbating him, Cassell put his hand under Elizabeth’s swimmers and inserted two fingers into her vagina; sequence 2 s 66C(3) Crimes Act. He also kissed Kate, inserting his tongue. He asked the girls to perform sexual acts on each other. The girls then swapped positions. He then asked Elizabeth to suck his penis. As she did this, he was rough with her, grabbing her head: sequence 8, s 66C(3) Crimes Act.

14. While this was happening, he put his hand under Kate’s swimmers and inserted two fingers into her vagina: sequence 1, s 66C(3) Crimes Act. Concerned for her friend, Elizabeth asked Kate to swap positions and she fellated Cassell: sequence 9 on a Form 1. As this occurred Cassell kissed Kate using his tongue.

15. While this was occurring Cassell pressured Kate for penile/vaginal intercourse. She said “no” several times, but eventually succumbed. He pulled her on top of him and put his penis into her vagina: sequence 10, s 66C(3) Crimes Act. She asked him to be gentle. He was not; the intercourse was rough. It hurt her in her vagina. He also put his finger in her anus: sequence 11, s 66C(3) Crimes Act. This incident took about ten minutes.

16. Kate used an excuse and got off him but Cassell then told Elizabeth “your turn”. She too asked he be gentle. She sat on him and he inserted his penis into her vagina. He was rough. As this occurred Elizabeth held Kate’s hand and cried. Cassell then had Elizabeth change position so he could put his penis into her while she was on her hands and knees. He continued to be rough. Kate continued to hold Elizabeth’s hand and reassure her. After a short time Elizabeth asked Cassell to stop, which he did, but he wanted to continue in their original position: sequence 12, s 66C(3) Crimes Act.

17. At some stage he stood up and directed Elizabeth to suck his penis, which she did: sequence 13 s 66C(3) Crimes Act. He held her head as she tried to push away. At one stage she gagged. Kate used her phone to take a photo of this act. Cassell invited Kate to come closer. He asked her to touch his penis. She refused, but when Elizabeth stopped sucking Kate did fellate him. He was rough with her, pushing her head down on his penis: sequence 14, s 66C(3) Crimes Act.

18. After this, the two girls held hands to comfort each other while Cassell masturbated. He then ejaculated onto both of them: sequences 15 and 16 s 66DD(a) Crimes Act. After wiping themselves, the girls, thinking Cassell had gone, went to nearby toilets, but he approached them there as well. He also approached them when they returned to Wollongong Railway Station.

19. The girls complained to friends, family and police soon after. Cassell was arrested on 27 January 2021.

20. His initial denials were retracted when he was shown the photo taken by Kate, but his second version of events did not accord with the now agreed facts as he told police there was only one act of consensual oral intercourse with Elizabeth and that the girls told him they were 17.

Procedural matters

21. Cassell has been in custody since 27 January 2021 and any sentence must date from then. On arrest he was charged with several offences. He admitted his offending while the proceedings were before the Local Court. It was agreed that he be sentenced for 11 offences and that other matters be taken into account on Crimes (Sentencing Procedure) Act 1999 Forms 1. Sequences 3, 10, 13 and 14 each have Forms 1 attached.

22. When he appeared before this Court, he adhered to those pleas and confirmed a request the Form 1 matters be taken into account. It is appropriate that I do so. While I do not sentence him for the Form 1 matters, there must be an increase in the sentence indicated for the offence to which they relate. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39] – [42]. As the Form 1 matters form part of a sequence of events I will take care not to double count matters taken into account.

23. His guilty plea did mean that the matter could be concluded expeditiously and that neither complainant had to give evidence at trial; R v Thompson, R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3].

24. I will impose an aggregate sentence. Each indicated sentences will reflect a reduction of 25% to take into account the utilitarian value of those early pleas. I have sought not to erode the benefit given for those pleas when formulating the aggregate sentence.

25. The matter came before me for sentence on 26 August 2022. I received all the exhibits, including Victim Impact Statements, one of which was read to the Court by Elizabeth. I received written submissions and heard from Ms McCrossin, solicitor for the Director of Public Prosecutions, and Mr McKenzie, counsel for Cassell. As it was a busy list and the matter started late it could not be finalised that day and was adjourned to today for sentence.

26. The offender did not give evidence, but no controversy arose about the material tendered on his behalf and I can safely act on it.

Maximum penalty

27. Offences involving sexual intercourse with a child aged 14 to 16 have a maximum penalty of ten years imprisonment: s 66C Crimes Act. The offence of intimidate intend to cause fear has a maximum penalty of five years imprisonment; s 13 Crimes (Domestic and Personal Violence) Act. The offence of intentionally incite a child under 16 to sexually touch has a maximum penalty of ten years imprisonment; s 66DB(b) Crimes Act.

28. Maximum penalties provide sentencing measures to be balanced with all other relevant factors. They are an important guide to the exercise of a sentencing discretion.

29. The maximum penalties also invite a comparison between this case and other cases. The consistent application of principle requires careful consideration be given to other decision of this and appellate courts, but sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases: The Queen v Pham (2015) 256 CLR 550: [2015] HCA 39 at [46], Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45.

Criminal history

30. Cassell has been before the courts on many occasions, although never for sexual matters and never for matters as serious as this. This will be his first custodial sentence. His record means he is not entitled to the leniency often given first offenders.

Victim impact

31. A Victim Impact Statement attests to the personal harm suffered by the victim as a direct result of the offence. They serve the very practical purpose of drawing to the offender’s, the court’s and the community’s attention the personal damage and harm caused by these crimes. The effects of child sexual abuse can depend on the age and gender of the child, the age and gender of the perpetrator, the nature of the relationship between the child and perpetrator, and the nature, number, frequency and duration of abuse experiences.

32. The diversity of abuse experiences means that the outcomes of child sexual abuse will also be diverse.

33. Elizabeth told me of how her life had completely changed and how in many ways what occurred had destroyed her and her mindset. She told me of the loss of trust she feels. The event it seemed to her; went on forever. And although she kept saying “no” and making excuses she was hurt physically and emotionally. She still questions her own behaviour that night. Having to relive the episode by having to tell many people about what occurred was “really hard” for her. She has been badly impacted by the response of some in the community to publicity about the event, particularly on social media. She feels as if she has been discarded and judged. She has learned not trust people. Some nights she cannot sleep; she wakes frightened. She feels scared and paranoid and cannot shake the feeling that someone is watching and waiting for her. She has lost self-worth. Doing simple things is now very difficult; she finds it hard to focus.

34. She is, however, determined not to let what happened define her future. She concludes, “I will not allow the offender to continue to control, have control over me I'm taking my power back”.

35. Kate told me she still experiences a variety of emotions including anxiousness, depression, fear, guilt, shame and anger. She still has vivid nightmares and trouble sleeping. She also she has trouble with body image and maintaining a healthy weight. She too has trouble concentrating and focusing on tasks at school. She feels that she will not be able to maintain healthy relationships. She benefitted from counselling but had trouble keeping it up; she hopes she can resume it. She no longer socialises with old friends; she too has been stigmatised on social media. Travelling on trains and visiting the beach can trigger negative emotions; sometimes a physical touch can make her vomit. She no longer feels comfortable being alone with men. She feels she has let her family down. She says she will be forever haunted and suffer because of what was done to her. She misses the old version of herself.

36. I will take what both young women told me into account. It is important that they understand that now the proceedings are over they can focus on their own recovery. What occurred was not their fault. They should not in any way take responsibility for what occurred. Only Cassell is to be punished.

37. The sentence I impose on him today is only one indicator of the seriousness with which the court views the crimes committed, as a court sentencing an offender must consider all relevant considerations. This means a direct correlation between harm done and time to be served is impossible. A victim should never equate or measure her injury with the punishment inflicted.

Assessing objective seriousness

38. A judge must make an objective assessment of the seriousness of each crime and the matters causally related to it. Here there were two victims and a large number of distinct offences. The charges seek to encompass the whole of the offender’s criminal conduct which formed a single episode of criminality with common factors.

39. Here, as is obvious, both complaints were children and their age relative to that of the offender and to the age range set out in the offence charged are matters that must be considered. That age range fixes the maximum penalty range available to me. It is generally the case that the younger the child relevant to the range the more serious the offending.

40. Each offence was committed in the presence of the other child and some of the offending involved multiple acts that could have been separately charged. That said, care must be taken not to double count matters in aggravation of penalty, or which are common to each offence: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40].

41. I am required to impose an appropriate sentence for each offence and to structure the aggregate sentence such that the overall sentence is just and appropriate to the totality of Cassell’s offending behaviour: Mill v The Queen (1988) 166 CLR 59;[1998] HCA 70 at 62-63; Nguyen v The Queen [2016] HCA 17.

Objective seriousness

42. The objective seriousness of the particular offending must be determined in the light of the entirety of the facts and circumstances in question. But I start from this basic premise: Every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on any sexual activity with a child. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is serious and is treated seriously by the courts. The guidance offered by the maximum penalties makes that clear.

43. Every sentence must be appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances. In assessing the objective seriousness of individual matters, the act or acts done, the character of the sexual acts or acts of intercourse and the degree of physical contact involved is of significance. In sexual intercourse matters there is no hierarchy of seriousness of the kinds of sexual intercourse: R v KNL [2005] NSWCCA 260. Accordingly, my focus must be on the degree and nature of the penetration of the child's genitalia, what else occurred at the time of penetration and the time over which the acts occurred, and whether any pain, physical hurt or harm was caused the child; some degree of psychological harm is generally presumed.

44. Another important principle is that a sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate, but again care must be taken; the absence of aggravating features does not mitigate.

42. Each offence exploited a young girl in a vulnerable position. The offences occurred over a period of an hour in public places. The girls were induced to do what they did out of fear because of the threats made. With the exception of the intimidation offences (sequences 5 and 6) what was done was solely for the offender’s sexual gratification. He had no regard for his victims, only for himself. At not stage was either child a willing participant in what occurred. In brief summary

• Sequence 3 - The offender was alone at night with Elizabeth. His requests were persistent and manipulative despite her repeatedly saying no.

• Sequences 5 and 6 - The offender made several serious threats to each complainant causing them considerable anxiety and distress. His apparent motivation was because they had dared to seek assistance from McDonald’s staff.

• Sequence 2 - The digital intercourse with Elizabeth was relatively brief.

• Sequence 8 - The offender was rough with Elizabeth during the oral intercourse.

• Sequence 1 - The digital intercourse with Kate was relatively brief, but accompanied by other sexual acts.

• Sequence 10 - The penile/vaginal intercourse with Kate was rough. He pulled her on top of him and went on for about ten minutes. No condom was used, risking disease or pregnancy.

• Sequence 11 - The offender, while engaged in the other act of intercourse, gratuitously inserted his finger into the child’s anus. Again, he used her as he wished without any regard for her or her wellbeing.

• Sequence 12 - Similarly, the penile/vaginal intercourse that followed with Elizabeth was rough and went on for some time and involved a change of position. No condom was used, risking disease and/or pregnancy. The offender was either oblivious to or ignored what must have been the obvious distress shown by the child. He did, however, stop when he was asked.

• Sequence 13 - Despite Elizabeth being unwilling and trying to pull away, the offender inserted and kept his penis in her mouth and push her head down on it.

• Sequence 14 - Aware that Kate did not want to touch his penis, he inserted it into her mouth. He was rough with her and pushed her down.

The Form 1 matters

46. While I do not sentence for these matters, in taking them into account I note that they form part of a sequence of criminal activity and continuation of it. And for sequences 15 and 16, the conclusion of the manipulative demeaning activity, the subject of the counts. Factors common to each offence for sentence also apply when analysing the seriousness of these matters.

The case for the offender

47. Cassell did not give evidence.

48. I received a letter from a friend who speaks of Cassell as a man who has gone through many tough times, but who remains a loving father and someone who goes out of his way for others.

49. Justice Health records note an assault in custody, his psychological response to lockdowns and the impact on him of news about the death, by suicide, of his teenage stepson. A hospital report from 1990 notes he was admitted to an acute psychiatric unit, aged 11, after serious self-destructive behaviour. Family and Community Services were notified of the possibility of sexual abuse, although Cassell made no mention of it at the time.

50. The principal evidence relied on came from a report of Dr Furst, a respected forensic psychiatrist.

51. Cassell is now 43, he has three children, two are autistic and a stepson recently suicided while Cassell was in custody. He is an Aboriginal man who was born locally. He has had little contact with his father. He was raised by his mother and stepmother, both his father and stepfather abused alcohol. He had difficulties at school as he was slow learning to read and write. He left school in Year 8 with low self-esteem. He suffers from epilepsy and has been receiving a disability pension from when he was 16. He has worked casual jobs at various times. He reports several suicide attempts and presentations at hospitals, primarily in the context of epileptic seizures and alcohol-related misadventures. He reports a lengthy history of depression and suicidal ideation. He has been seeing doctor for his epilepsy and takes medication twice daily. He has struggled with stress, depression and insomnia while in custody.

52. Dr Furst sets reviewed Cassell’s medical records and records of presentations at local hospitals. He diagnoses alcohol use disorder, borderline personality disorder and epilepsy. His report sets out short summaries of these conditions. Dr Furst concludes;

“Cassell derives from an unfortunate and unhappy childhood. His biological father was an alcoholic indigenous man, his mother offered him little or no protection from his stepfather, who was both emotionally and physically violent towards him, and his mother. He performed poorly at school having learning difficulties, being functionally illiterate, and being picked on by his peers. Accordingly, Mr Cassells mental health problems emerged in early stage, mostly in the form of depression, emotional instability and repetitive and deliberate self-harm. His psychological function has also been impaired by his chronic epilepsy and his alcohol abuse disorder”.

53. Dr Furst conducted a risk assessment and concluded that Cassell did not present as antisocial or pro-criminal, as he has taken responsibility for his offending and will seek professional help; which is a positive factor. Treatment is available to him in custody. Dr Furst estimates Cassell has an overall risk of reoffending in a sexual manner in the order of 15 to 20% within five years post-release to the community. He notes that Cassell is prone to impulsive, deliberate self-harm under stress, and depression as a consequence of his maladaptive traits and borderline personality disorder.

54. In Dr Furst’s opinion Cassell is likely to struggle to cope when sentenced and he is at risk of completing suicide. That risk level is much higher than the average inmate or the average person in the community. He will require ongoing care by Justice Health. He should engage in drug and alcohol counselling and psychological therapy in custody and in the community. In the community he should follow-up through his GP as ongoing treatment is required. Dr Furst asked that a copy of his report be provided to Corrective Services, Community Corrections and Justice Health.

Background

55. An offender who has the start in life that Cassell had does not bear equal moral responsibility with one with a background one might term normal or advantaged. His background has left a mark and compromised his capacity to mature and learn from experience. He has fewer emotional resources to guide his behavioural decisions. That does not mean that he bears no moral responsibility, but that background must be taken into account: R v Millwood [2012] NSWCCA 2 at [69]. His moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in the way set out in the material before me: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Ill health

56. Offenders generally cannot escape punishment because of the condition of their health, but given the risks associated with an offender’s medical condition, in particular his epilepsy and suicide risk, the realities of prison life should not be overlooked in the exercise of my sentencing discretion: Burrell v R (2000) 114 A Crim R 207; [2000] NSWCCA 262 at [27].

57. His Ill-health is a factor that mitigates punishment, particularly where, as here, imprisonment will be a greater burden on him by reason of his health and carries with it a significant risk. It can also be a special circumstance warranting a longer period on parole: R v Sellen (1991) 57 A Crim R 313. Care, however, should be taken not to double‑count such mitigating factors. Ill health does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require: R v L, NSWCCA unreported, 17/6/1996.

Assault In Custody

58. Cassell was assaulted in custody. That it is a relevant factor on sentence. A sentencing court cannot ignore the lived experience of gaols. Judges must take into account and synthesise all relevant considerations. Even after the injury heals, a prisoner assaulted in custody will inevitably suffer anxiety and other concerns as they are being kept in or returned to the same type of environment where they were previously assaulted. Gaols are nasty, violent places, all prisoners are at risk. They have no control over who they associate with and no control over their immediate safety. If they could not be protected in the past it requires no imagination to conclude that person who has been assaulted in gaol will find incarceration, at the very least, more worrying than someone who has not.

COVID-19

59. Dr Furst notes a number of specific concerns about the COVID restrictions, imposed on Cassell. The present crisis has increased apprehension by all prisoners about infection in gaols, as it does in the community in general. As a community we are being asked, urged, compelled at times, to self-isolate. This cannot happen in a gaol. Social visits were suspended for over a year, reducing any capacity to remain in contact with pro-social friends and family. They have only just resumed. Access to telephone calls and AVL links increased. Prisoners are regularly quarantined and locked in cells for extended periods, sometime days and weeks. The evidence before me confirms that.

60. The offender has endured over a year of such restrictions; he may face them again. The lack of visits, and that heightened anxiety and concerns about the pandemic noted by Dr Ellis in his report have and will continue to have a negative impact on prisoners such as Cassell. They remain relevant factors that must be synthesised along with all other matters.

Submissions

61. At the outset Mr McKenzie, on the offender’s behalf, accepted a significant term of imprisonment must be imposed. He told me the offender is disgusted by what he did and questions himself, matters he submitted I could take into account, along with the early plea, as indications of sincere remorse. He noted Cassell’s lengthy and onerous time on remand and the impact of the pandemic restrictions on him. He took me through matters that went to Cassell’s moral responsibility. He addressed evidence that Cassell will not only be at real risk of self-harm in custody, but also is particularly vulnerable because of his medical and psychological conditions and learning difficulties; conditions which go back to childhood.

62. In response, Ms McCrossin accepted that there was hardship and recognised the value of the early plea, but she submitted that there was no evidence of remorse, rather, that there was acceptance or responsibility in the face of a strong prosecution case, supported by the photo. In her written submissions she helpfully outlined factors relevant to my assessment of the objective seriousness of each offence for sentence.

63. In her submission, with the exception of sequence 3, each offence was at the highest end of the scale. Each displayed the offender’s predatory, manipulative and exploitative conduct. What he did was sustained and showed complete disregard for the wellbeing of his victims; his only thought was his sexual gratification.

64. She noted the offending reflected a sexual interest in the two girls who were at the time children and asked that I be cautious about Dr Furst’s report at p 4 that Cassell is “not attracted to children”, as they were not an expert opinion but a recitation of Cassell’s history.

65. She urged me not to double count matters raised in mitigation, but rather to focus on the deterrent and retributive purposes of sentencing. She noted that while a case had been made for special circumstances, that finding would be circumscribed, as the length of the aggregate sentence would, in the ordinary course, allow for a lengthy period for supervision and monitoring while on parole.

Mental health

66. In Dr Furst’s opinion, Cassell meets the diagnostic criteria for alcohol use disorder, borderline personality disorder and epilepsy. While he did not suggest the offending was driven by any medical disorder, he said those underlying conditions will make Cassell’s time in custody more onerous.

67. I do not accept Mr McKenzie’s submission that Cassell should be a vehicle for general deterrence. That principle must apply here, subject to matters that otherwise reduce his moral culpability noted above. A retributive sentence is required. Others in the community must understand that to behave as Cassell did is not only criminally wrong, but that it causes considerable harm, both physical and psychological, to child victims. And that if they did what Cassell did they can expect significant punishment.

68. While Dr Furst stated at p 4 of his report that the offender does not have a sexual attraction to children; his interview with Cassell elicited no indication of a sexual preoccupation and he did not find any evidence of a paedophilic disorder. That said, it cannot be ignored that his offences on this occasion did involve children, indicating a lack of moral constraint.

69. While the offender was not intoxicated this night, if he can get assistance dealing with his alcohol use disorder and underlying conditions his chances for rehabilitation will be advanced. He would be well advised to complete any programmes offered him in custody. He is willing to seek professional help but his long period on remand has impeded help being made available to him, a factor I take into account.

Remorse

70. Generally, untested out of court statements of remorse made to third parties should be treated with caution and considerable circumspection: R v Qutami [2001] NSWCCA 353 at [58] – [59]; R v Palu [2002] NSCWCCA 381; Butters v R [2010] NSCWCCA 1 at [18].

71. However, some regard can be had here to Cassell’s remorse expressed through his psychiatrist beyond the bare fact of his plea. What was reported is consistent with his early guilty pleas and acceptance of responsibility for multiple offences. Although not on oath they were tangible expressions of contrition and are consistent with the conduct and statements of Cassell over a period of time since his police interviews. He appears to have accepted the details of events given by the complainants and accepted personal responsibility for his crimes: Thompson v R at [118].

Danger of a crushing sentence

72. The severity of a sentence should not operate to destroy prospects of rehabilitation and reform. An extremely long sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. I make this comment given Cassell’s history of suicidal ideation. This effect both increases the severity of the sentence to be served and can increase the risk of self-harm.

73. What is, however, proportionate or what might be seen as a crushing sentence can depend on the perspective of the observer; whether they are a victim, the community, the appeal court or the offender; Director of Public Prosecutions (Cth) v Beattie [2017] NSCWCCA 301

Need for victim vindication

74. Mitigating factors must be given appropriate weight, but they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of each offence. That having been said, the High Court in Munda made it quite clear that the proper role of the criminal law is not limited to the utilitarian value of general deterrence. Sentencing courts have an obligation to vindicate the dignity of each victim, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the State to the vulnerable against repetition of the offending: Munda v Western Australia (2013) 249 CLR 600: [2013] HCA 38 at [52] to [58].

Special circumstances

75. There is evidence Cassell will need considerable help and supervision in the community on release. He will need alcohol abuse treatment, his mental health conditions must be addressed and he will need considerable help adjusting to normal community life after his lengthy term. His epilepsy and suicidal ideation place him at additional risk in gaol. All provide a basis for a finding of special circumstances. However, in so finding, I am mindful of a requirement that the minimum period for which the offender should be imprisoned must properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

76. It important to note that studies reveal that offenders who receive parole supervision on release from custody take longer to commit a new offence and were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR.

Synthesis

77. Ultimately, I must, as I have tried to do, identify all factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence should be given all the factors relevant to the offending behaviour and the offender: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen.

78. I have sought to do so but not every matter has to be, or can be, fitted into categories. Human behaviour and characteristics are too varied. The sentencing exercise involves: “A synthesis of competing features, which attempt to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment, usually expressed in time in custody:” Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14 at [24].

ORDERS

Indicated sentences

• The indicated sentences take into account the reduction for the early guilty plea and, where required, matters on a Form 1.

• Sequence 1, sexual intercourse with a child 14 to 16, I indicate a sentence of two years and three months imprisonment.

• Sequence 2, sexual intercourse with a child 14 to 16, I indicate a sentence of two years and three months.

• Sequence 3, intentionally incite child sexual touching, plus Form 1,

• Sequence 4, I indicate a sentence of nine months.

• Sequences 5 and 6, stalk intimidate, I indicate sentences of nine months.

• Sequence 8, sexual intercourse with a child 14 to 16, two years seven months.

• Sequence 10, which has the Form 1 matters sequences 7 and 9, I indicate a sentence of three years.

• Sequence 11, sexual intercourse with a child 14 to 16, I indicate a sentence of two years and three months.

• Sequence 12, sexual intercourse with a child 14 to 16, I indicate a sentence of three years.

• Sequence 13, which has the Form 1 matter

• Sequence 15, sexual intercourse with a child 14 to 16, I indicate a sentence of two years and seven months. Sequence 14, which has sequence 16 on it on the form, sexual intercourse with a child 14 to 16, I indicate a sentence of two years and seven months.

Aggregate sentence

79. The aggregate sentence will be nine years imprisonment. To give effect to my finding of special circumstances there will be a non‑parole period of five years and ten months imprisonment. There will be a balance of term of three years and two months. The sentence will commence on 27 January 2021. Cassell will be eligible for consideration for release to parole after a period of five years and ten months, which will be 26 November 2026. The balance of the term, of three years and two months, will commence on that date. Total sentence will expire on 26 January 2030.

80. I repeat, nine years, five years ten months, commence 27 January 21, eligible for release to parole 26 November 26, balance of term three years two months commencing on 27 November 2026. Total sentence expires 26 January 2030.

79. I will have a copy of Dr Furst’s report sent to Community Corrections and Justice Health.

AUDIO VISUAL LINK CONCLUDED AT 11.59AM

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Decision last updated: 12 October 2022