R v CF

[2023] NSWDC 452

District Court

New South Wales

Medium Neutral Citation:

R v CF [2023] NSWDC 452

Hearing dates:

16 October 2023

Decision date:

25 October 2023

Jurisdiction:

Criminal

Before:

Coleman SC DCJ

Decision:

(1) For the offences of which he was found guilty, the offender is convicted.

(2) The offender is sentenced to an aggregate term of imprisonment for a period of 14 years, with a non-parole period of 8 years and 10 months, to date from 7 December 2022. The first date the offender is eligible for release to parole is 6 October 2031. The head sentence will expire on 6 December 2036.

(3) The indicative sentence and indicative non-parole periods (where relevant) are as follows:

• Count 1: 18 months imprisonment, with a non-parole period of 11 months

• Count 2: 18 months imprisonment, with a non-parole period of 11 months

• Count 3: 6 years imprisonment

• Count 4: 18 months imprisonment, with a non-parole period of 11 months

• Count 5: 2 years 6 months imprisonment

• Count 6: 5 years imprisonment

• Count 7: 5 years imprisonment

Catchwords:

CRIME – Child sex offences – Multiple offences – Indecent assault – Sexual intercourse with child >10<14 – Circumstances of aggravation – Sexual intercourse with young person under special care – Sentencing following trial

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M, 66C, 73

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21B, 25AA, 53A, 54B, Sch 2, Pt 35, Item 95

Crimes (Sentencing Procedure) Amendment Act 2022 (NSW)

Cases Cited:

Bravo v R [2015] NSWCCA 302

BT v R [2010] NSWCCA 276

Cheung v R (2001) 209 CLR 1

Filippou v The Queen (2015) 256 CLR 47

Johnson v The Queen [2004] HCA 15

Leach v The Queen (2007) 230 CLR 1

R v Cattell [2019] NSWCCA 297

R v Chan [2000] NSWCCA 345

R v Cranston [2023] NSWSC 1004

R v Edwards (1996) 90 A Crim R 510

R v Gavel [2014] NSWCCA 56

R v Isaacs (1997) 41 NSWLR 374

R v MAK [2006] NSWCCA 381

RH McL v The Queen (2000) 203 CLR 452

Savvas v The Queen (1995) 183 CLR 1

Skocic v R [2014] NSWCCA 225

Strbak v The Queen (2020) 267 CLR 494

The Queen v Olbrich (1999) 199 CLR 270

Weininger v The Queen (2003) 212 CLR 629

Category:

Sentence

Parties:

Director for Public Prosecutions (NSW) (Crown)
CF (Offender)

Representation:

Counsel:
D Henschell, Solicitor Advocate (Crown)
M Davis (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Michel + White Lawyers (Offender)

File Number(s):

2020/00111550

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant or which is likely to lead to the identification of the complainant. The identity of the offender is anonymised as CF.

JUDGMENT

1. The offender, who will be referred to as CF, appears for sentence today after being found guilty by a jury on 8 December 2022 of seven offences under the Crimes Act 1900 (NSW). Those offences are as follows:

1. Two counts of indecent assault upon a person under 16 years of age, contrary to s 61M(1) of the Crimes Act (being Counts 1 and 2). This offence carries a maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years;

2. One count of aggravated sexual intercourse with a person aged between 14 and 16 years, the relevant circumstance of aggravation being that the victim was under the authority of the offender (being Count 3). This is an offence under s 66C(4) of the Crimes Act and carries a maximum penalty of 12 years imprisonment but does not have a standard non-parole period;

3. One count of aggravated indecent assault, the relevant circumstance of aggravation being that the victim was under the authority of the offender (being Count 4). This is an offence under s 61M(1) of the Crimes Act and carries a maximum penalty of 7 years with a standard non-parole period of 5 years; and

4. Three counts of sexual intercourse with a child between the age of 16 and 17 under his special care, contrary to s 73(1) of the Crimes Act (being Counts 5, 6 and 7). These offences carry a maximum penalty of 8 years imprisonment with no standard non-parole period.

Fact Finding after Jury Verdict

2. In sentencing an offender after a verdict, the relevant principles were recently set out by Payne JA in R v Cranston [2023] NSWSC 1004 at [3] as follows:

1. A sentencing judge has a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;

2. Sometimes, however, it may be impossible for the sentencer to resolve a given factual question in a way that tends to either increase or decrease the sentence. In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70];

3. If a party at sentencing seeks to rely on a particular fact, that party has the onus of proving the fact in question: Olbrich at [25]. There is, however, no general joinder of issue in sentencing and, unlike at the trial, no generalised onus of proof: Olbrich at [25];

4. If the prosecution seeks to rely on a fact, they must prove it beyond reasonable doubt. If the offender seeks to rely on a fact, the standard of proof is on the balance of probabilities: Olbrich at [27]-[28]; Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41]; Filippou at [64], [66]; Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32];

5. After a jury returns a verdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury’s verdict: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [14], approving Isaacs at 376-377;

6. A sentencer cannot know, in many cases, exactly what facts the jury found or what evidence they accepted. The sentencer is constrained by a verdict only when that verdict, by necessary implication, reveals that the jury accepted particular evidence or resolved facts in a particular way: Cheung at [17]; and

7. Within this constraint, the sentencer can make findings as they see fit: Savvas v The Queen (1995) 183 CLR 1 at 8. There is no requirement to accept all of the Crown’s case as put to the jury: Cheung at [7]. Nor is the judge required to take a view of the facts most favourable to the offender: Isaacs at 377D.

3. Included in the Crown bundle were a document called “Crown proposed facts after trial”, prepared by Mr Henschell, Solicitor Advocate. At the sentence hearing, counsel for the offender confirmed that, subject to one omission, they were agreed by the parties. Neither party submitted that any further facts ought to be found by the Court.

4. I should note that as set out below, the offender does not accept that he committed any of the offences. He still maintains his innocence. It is in that context that his counsel accepted the facts that I will set out.

5. I am satisfied that those facts are consistent with the jury’s verdicts and I find the facts set out below.

Background

6. The victim in this matter is JS. In 2003, the victim’s mother, GF, met the offender and they commenced a relationship. In 2004, they got married. The offender became the victim’s stepfather and she called him “dad”.

7. In 2005 and 2007, the offender and the victim’s mother had two children together. In 2006, the family moved to a property outside Tamworth. The victim assisted the offender by working the farm with him. As she got older, her farming responsibilities and jobs grew. The victim and the offender spent increasing amounts of time together and she became the offender’s “right-hand man” on the farm.

8. The offender was in charge of the household and routinely made decisions on behalf of the family, including on behalf of the victim. Multiple times a week, the offender would lecture the family on Christian beliefs and read various passages to them from the Bible. On numerous occasions, the offender would come into the victim’s bedroom at night-time when she was lying in her bed and preparing to go to sleep. The offender would then lecture her about the Bible for periods usually in excess of an hour. The victim did not invite these visits.

9. Throughout the offending period and afterwards, the offender exercised a degree of control and dominance over the victim. Examples of this dominance included routinely checking the victim’s mobile phone to see who she had been contacting, as well as checking the mileage on the victim’s car and questioning where she had been if the amount had changed.

Count 1 – Indecent assault

10. The victim’s evidence was that this incident occurred in 2008 and before her birthday in December. The victim had gone to bed for the night and was lying on her bed under the covers. The offender came into her bedroom and sat down on the victim’s bed. She could smell beer on him and had seen him drinking earlier that day.

11. The offender reached over and put his hand on the victim’s leg, running it up her leg onto her waist. As he ran his hand up her leg, the offender started talking to the victim and said things to the effect that he loved her and would do anything for her. He also said that he was very happy that he’d met the victim’s mother so that he was able to meet her. The offender also told her that he would do anything for her and that she was very special.

12. The offender then kissed the victim on the forehead before kissing her on the mouth. When he kissed her on the mouth, he used his tongue and put it inside her mouth. It is this kissing which constitutes Count 1.

Counts 2 and 3 – Indecent assault and aggravated sexual intercourse with a child between 14 and 16 years

13. Counts 2 and 3 relate to the same incident. The victim’s evidence was that this incident also occurred in 2008 before her birthday in December.

14. The victim had again gone to bed in her bedroom when the offender came in and sat on her bed. At this point, the victim was falling asleep.

15. The offender put his hand on her leg and moved it up to her waist. The offender then continued and moved his hand under the covers and under the victim’s shirt where he started touching her breasts. At about the same time, the offender started kissing her, and as he was kissing her, he put his tongue in her mouth. It is the kissing which constitutes Count 2.

16. The offender then started to press his groin area up against the victim’s face for a period. Initially, the offender was wearing pyjamas, however he then took his penis out and pressed it against the victim’s face. The offender then put his fingers into the victim’s mouth, hooked his thumb onto her teeth and opened her mouth. He then forced his penis into the victim’s mouth.

17. The offender’s penis was in the victim’s mouth for about 10 minutes, until he ejaculated into the victim’s mouth. The offender forcing his penis into the victim’s mouth is Count 3. The offender then got the victim a glass of water.

Scotts Head Camp

18. The victim’s evidence is that the first three offences all occurred before she went to camp at Scotts Head in January 2009. Conversely, Counts 4, 5, 6 and 7 all occurred in 2009 after the Scotts Head camp but before the victim’s birthday in December.

19. During the Scotts Head camp, the victim sent a text message to a school friend, in which the victim said that the offender did other stuff to her, like sexual stuff. This was the victim’s first complaint.

20. When police were notified and attended to check on the victim, she was still at the Scotts Head camp. The attending police then told the offender and the victim’s mother about the complaint. The offender and the victim’s mother then contacted the camp and spoke to the victim on the phone. During that phone call, the victim was accused of lying and was told she should contact the police and retract her complaint. The victim subsequently contacted police and retracted her complaint. She was then admonished by police.

Counts 4, 5 and 6 – Indecent assault and sexual intercourse with child 16 – 18 years under special care (x 2)

21. Counts 4, 5 and 6 all relate to the same incident. This incident occurred in 2009 after the victim had returned from the Scotts Head camp.

22. One evening, the victim had gone to bed and at about 9:30 or 10:00pm, the offender came into her bedroom and sat down on the side of her bed. The offender then leaned over her and kissed her on the mouth using his tongue. This is Count 4. The offender then used his hand to force her mouth open and put his penis inside her mouth. This is Count 5.

23. The offender then rolled the victim over onto her stomach, took off her pants and laid on top of her. He spat on his hand, put the spit on his penis before thrusting his penis inside the victim’s anus. This is Count 6.

24. When the offender put his penis in, this caused the victim pain. The intercourse lasted for about 15 minutes until the offender ejaculated in her anus. Whilst he was having sex with her, the offender told the victim that she was sexy and that she was a good girl. When he finished, the offender brought the victim a towel and then left. The victim then cried herself to sleep.

25. The next day, the victim thought she was having her period as she saw blood. For a couple of days afterwards, it hurt her to use the toilet.

Count 7 – Sexual intercourse with child 16-18 years under special care

26. Count 7 took place in 2009 and occurred before the victim’s birthday.

27. The offender again came into the victim’s bedroom at night as she was in bed trying to go to sleep. He kissed her, then pulled her pants off before rolling her over onto her stomach.

28. The offender then spat on his hand and put it on his penis, before grabbing her hips and thrusting his penis into her anus. This is Count 7. Again, this caused the victim pain. The sexual intercourse continued for about 10-15 minutes until the offender ejaculated inside her and stopped. As the victim was cleaning herself up, she noticed ejaculate coming from her anus.

Commencement of Proceedings

29. These proceedings were commenced on 14 April 2020.

30. It is common ground that s 21B of the Crimes (Sentencing Procedure) Act 1999 (CSPA) does not apply to these proceedings. That section was inserted into the CSPA on 18 October 2022 by the Crimes (Sentencing Procedure) Amendment Act 2022 (NSW). It is accepted by the Crown that Sch 2, Pt 35, Item 95 of the CSPA provides that s 21B does not apply to proceedings commenced prior to the commencement of the amendments.

31. The parties jointly submitted that s 25AA of the CSPA does apply to Counts 1, 2 and 3. It does not apply to the remaining counts.

32. In respect to the counts to which s 25AA does apply, I have been referred to the decision of the Court of Criminal Appeal in R v Cattell [2019] NSWCCA 297, where Price J (with whom Hoeben CJ in CL and Campbell J agreed) said at [123]:

When fixing a sentence for an old child sexual offence which falls within s 25AA, a sentencing judge should:

Take into account the sentencing pattern which exists at the time of sentence where such a pattern is able to be discerned;

Determine the facts as now available to the court;

Pay regard to the maximum penalty and standard non-parole period (if any) that applied at the time of the offence;

Identify where the offence falls in the range of objective gravity of that offence;

Take into account any relevant aggravating factors and mitigating factors in s 21A(2) and (3) of the CSP Act;

Set a non-parole period in accordance with s 44 of the CSP Act as it operates at the time of sentence, and

Fix the balance of the term of the sentence.

Objective Seriousness

33. Any sexual offending against children is objectively a very serious matter. The legislature has signalled by the relevant maximum penalties for these offences the seriousness with which they are rightly regarded. Those maximum penalties, and any standard non-parole periods, serve as guideposts to be taken into account by the courts. The abuse of children for the sexual gratification of an adult is a violation of the child’s innocence and often, as here, an abuse of their trust, which will be met with a sentence that reflects the condemnation of such conduct.

Count 1 - s 61M(1)

34. This offence has a maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years. It has been said that sentencing for an offence under this section is difficult by reason of the “absurd relativity” between the 7-year maximum penalty and the 5-year standard non-parole period (see BT v R [2010] NSWCCA 276 at [41] per R S Hulme J).

35. This is a count to which s 25AA applies and I take into account the trauma that the abuse must have had on the victim. This includes that such offences will have a profound effect on the child victim for many years, if not their whole lives (see R v Gavel [2014] NSWCCA 56 at [110]).

36. The victim was in her bed when the offender came into her room. She must have been confused and terrified by his conduct of touching her legs. He told her things that suggested she was special to him and then offended by kissing her on the mouth and using his tongue. She was 15 years old.

37. The Crown submitted that the offending here falls towards the lower end of the range.

38. The offender submitted that this is a table offence and the Court should have regard to the fact that it could have been dealt with in the Local Court. It was submitted the offending is at the low end of the range.

39. I regard this offending as being towards the low end of the range but not at the bottom.

Count 2 - s 61M(1)

40. The same sentencing considerations as for Count 1 are relevant to this count.

41. Again, the victim was 15 years old. The offending involved the victim being in her bed and the offender coming into her bedroom. He touched her leg and waist. He touched her breast skin on skin. He started kissing the victim and used his tongue. Again, she must have been terrified and traumatised by this abuse.

42. The Crown submits the offending falls toward the lower end of the range. The offender submits it is at the low end of the range.

43. I accept that this offending is at the low end of the range, but not at the bottom.

Count 3 - s 66C(4)

44. This offending is aggravated sexual intercourse with a child aged between 14 and 16 years of age. The circumstance of aggravation is that the child is under the authority of the offender.

45. There is a maximum penalty of 12 years imprisonment. The offender submitted (at [12]-[13] of the written submissions) that there is no standard non-parole period. The Crown accepted in oral submissions that this is so.

46. Section 25AA does apply and I take the trauma of this offending on the child victim into account. It must have been an horrific experience for the child. The offender was the stepfather of the victim and she looked up to him and should have been able to trust him.

47. The offending took place in the same incident after Count 2. After he kissed the victim, the offender moved his groin to the victim’s face. As the facts describe, he forced her mouth open and put his penis inside. His penis was inside the victim’s mouth for about 10 minutes – a significant period of time. He ejaculated in her mouth. He then got her a glass of water.

48. The offender submits the offending falls in the mid-range. The Crown submits that the ejaculation adds to the degradation of the victim. It noted that the offender pried open the victim’s mouth with his fingers, forcing his penis into her mouth. It submitted the offending is above the mid-range.

49. I regard this as a very serious example of this offence – above the mid-range using the hypothetical scale. It was a gross breach of trust by the offender in a degrading and traumatic manner for the victim.

Count 4 - s 61M(1)

50. This offence has a 7-year maximum sentence and a standard non-parole period of 5 years.

51. It is accepted by the Crown that s 21B does not apply. Nor does s 25AA as the age of the victim (being 16 years old) means that the offence is not a child sexual offence as defined in s 25AA(5). The Court is required to sentence for this count according to the sentencing practices and principles at the time the offence was committed. The offender’s counsel has attached to his submissions statistics from the NSW Sentencing Council but notes, as I do, the caution on using sentencing statistics as set out in Skocic v R [2014] NSWCCA 225 at [19]-[20].

50. I also take into account that this count could have been disposed of in the Local Court.

51. Again, this count occurred when the victim had gone to her bed. The offender came into her bedroom, sat on her bed, leaned over and kissed her on the mouth using his tongue.

52. The Crown submits that the offending falls towards the low end of the range. The offender submits, and I accept, it is at the low end of the range.

Count 5 - s 73(1)

55. This offence is sexual intercourse with a person under special care. This reflects the offender’s position of trust and authority as the victim’s stepfather. It occurred in the same incident as Count 4. It carries a maximum penalty of 8 years imprisonment and there is no standard non-parole period.

56. It is accepted that s 21B and s 25AA do not apply, thus the offender must be sentenced in accordance with sentencing patterns and practices existing at the time of the offending. Counsel for the offender notes there is scant assistance in this regard, including from the statistics he annexes. He has set out some cases from that period and I will return to them.

57. After the offender kissed the victim, he used his thumb to open her mouth and put his penis inside it. There is no indication of how long the penis was inside the victim’s mouth, but the offending was a gross breach of trust.

58. The Crown submitted that one of the factors that made this offending fall above the mid-range was that the offender had his penis inside the victim’s mouth for about 10 minutes. I do not think that is right – that was the case for Count 3.

59. The offender submits this offending is below the mid-range and I agree.

Count 6 - s 73(1)

60. This offending also took place in the same incident as Counts 4 and 5.

61. The maximum penalty is 8 years imprisonment and there is no standard non-parole period. The same sentencing principles as for Count 5 apply.

62. After the offender placed his penis in the mouth of the victim, he rolled her over, took off her pants and got on top of her. Using his saliva as lubricant, he thrust his penis into her anus. This caused the victim pain. He continued the intercourse for about 15 minutes until he ejaculated inside her anus. After he had left, she cried herself to sleep. As the facts indicate, the next day she saw blood.

63. The Crown submits this offending is above the mid-range. The offender accepts this is so.

64. The insertion of the offender’s penis into the anus of the child is a degrading and gross breach of trust, which caused pain and distress to the victim, for the offender’s sexual gratification. The offender continued for a not insignificant period of time until he ejaculated inside her. There was blood from her anus the next day and she had pain when toileting for a couple of days. I regard this as a very serious example of this type of offending.

Count 7 - s 73(1)

65. This offending took place in 2009 when the victim was 16 years old.

66. Again, s 21B and s 25AA do not apply and the same sentencing principles as for Count 5 apply.

67. Once again, the offending took place in the victim’s bedroom at night-time. Again, he kissed her, rolled her over and used his saliva as lubricant to penetrate her anus with his penis. The painful intercourse lasted 10-15 minutes until the offender ejaculated inside the victim’s anus.

68. The Crown submitted this offending is above the mid-range and the offender accepts this is so.

69. For similar reasons as for Count 6, I regard this as a very serious example of this type of offending. It was a repeat anal rape of the victim for the sexual gratification of the offender, abusing the trust she had in him.

Aggravating/Mitigating Factors

70. As for statutory aggravating factors under s 21A(2) of the CSPA, each of the offences took place in the home of the victim where she was entitled to feel safe (s 21A(2)(eb)) and the offences all involved a breach of trust (s 21A(2)(k). However, I only take this latter factor into account for Counts 1 and 2 but not the other counts, as the victim being under the authority or in the special care of the offender is an element of the offending and I must not double count.

71. In terms of statutory mitigating factors, the offender was a person of good character (s 21A(3)(k)) and has no prior offences (s 21A(3)(e)) and this should be taken into account.

72. The offender is not entitled to leniency by way of a guilty plea, but I accept that his maintenance of his innocence does not mean he should be punished more severely.

Subjective Circumstances

73. In terms of the subjective circumstances of the offender, I have been provided with a psychological report of Dr Thomas Dornan dated 12 July 2023. I will not detail all of the matters in the report but summarise the subjective matters relevant to my considerations.

74. The offender reported that he is one of five children born to the union of his natural parents, whose relationship remains intact. He provided that during his childhood, he had a strong and secure relationship with both of his parents, whom he described as loving and kind.

75. The offender was raised as part of the Exclusive Brethren, which are a subset of the Christian evangelical movement generally described as the Plymouth Brethren. He stated that the Exclusive Brethren are known for their strict interpretation of biblical teachings and practices, emphasizing separation from the world and maintenance of a distinct community. He reported that his former church has a hierarchical structure with a centralised leadership structure, which holds significant control over the lives of its members. When the offender was a child, his father was the leader of the church in Tamworth, often referred to as the “Regional Overseer”, and was often busy with church activities.

76. The offender provided that he grew up in a “closed world”, with no access to television or radio and no outside friends. His family attended church every night and four times on Sunday. His community consisted of approximately 100 people in 2 communities in Tamworth and Armidale, and his friendships were confined to those within the community. Gatherings of children only occurred during church meetings and were closely monitored by “the older Brethren”, who were ultra-religious in nature and had strict rules and standards by which they lived.

77. Around the age of 16, the offender began to reflect on his religion for the first time and to rebel by way of listening to music, reading novels and associating with non-Brethren friends. For these transgressions, the offender reported that he was “shut up”, a punishment by which he was restricted to his room and was not allowed to communicate with anyone, including his parents, unless it was for specific requirements such as food. The community would also be made aware of this punishment, causing embarrassment to his family. Depending upon the seriousness of the transgression, this punishment could last for days, weeks or even months. Dr Dornan opined that when the offender was exploring his mental health at this time, he was describing symptoms of Posttraumatic Stress Disorder, but had limited insight into this.

78. Around the age of 20, the offender engaged in an inappropriate relationship with an older married woman which was discovered by a peer and reported to senior Brethren, resulting in the offender being “shut up” again. He was forced to move into the garage, where he lived alone for over a month and suffered a significant decline in his mental health. The offender reported that it was at this point he decided he could “no longer live this way” and left the family home, resulting in his excommunication from the church. The offender was initially homeless, camping on farmland which he had leased, before he was offered accommodation by a former school friend.

79. Since his excommunication from the Exclusive Brethren in 1995, the offender has had no relationship with his siblings, despite his attempts to make contact with them, and very limited contact with his parents. He explained that the Brethren had rules in place which prohibited contact between him and his family which his parents would never break.

80. From around the age of 18, the offender worked on his own small piece of land running cattle and sheep. After leaving school and until his excommunication from the Brethren, he worked with his father in the family business which manufactured and sold shop fittings and furniture. After leaving the community, he continued working on his own farm and, after a few years, bought a crop spraying rig and contracted his services to local members of the community.

81. In 2002, the offender reported that he was able to return to working in the family business during what he described as “an amnesty of sorts” for former members of the Brethren. However, this came to an end after a few months when it was discovered he was living with his partner out of wedlock. The offender reported setting up his own business fabricating furniture and shop fittings shortly after this, which he remained employed in up until he went into custody. The offender provided that he has also maintained his own farm throughout the years, using it as a place to bond as a family and as an additional source of income.

82. He married his first wife in 2004. She had a daughter from a previous relationship, being the victim in this matter, who moved in with them after they were married. The offender has two sons from this marriage who were born in 2005 and 2007. The offender reported that his first wife would episodically become violent, displaying manic behaviours which often resulted in a form of seizure. He did not understand what was occurring at the time, and it was only much later that she was diagnosed with bipolar disorder and epilepsy. He reported experiencing symptoms of anxiety and depression in response to his ex-wife’s mental health issues and that he would consume alcohol on most days during this period in order to self-medicate. However, he reports he has remained abstinent from alcohol since 2017.

83. The offender reported that his wife’s mental ill-health escalated in 2014. In 2015, he and his wife became estranged, living separately under the same roof, before he left the family home in 2016. In 2017, the offender met his next significant partner, and the pair were married in 2020. He reported this relationship is a significant improvement on his previous marriage and that he and his new wife are happy together.

84. In regard to his relationship with the victim, the offender stated that he had first met her when she was 8 or 9 years old and became a parental figure in her life. The offender maintained his denial that he ever engaged in any of the offending conduct to Dr Dornan, stating that he has no idea why the complaints were made as he believed he had a positive relationship with his stepdaughter.

85. Since his arrest for these offences, the offender reported developing emotional and behavioural symptoms, such as tearfulness and hopelessness, which have caused him marked distress and led to impairment in his social functioning. Dr Dornan therefore opined that the offender meets the criteria for a diagnosis of Adjustment Disorder with depressed mood.

Moral Culpability

86. The offender’s counsel submitted that the Court is entitled to take into account the nature of his upbringing, attended by isolation, social deprivation and strict religious practices, his history of mental ill health, his period of homelessness and his ongoing disconnect from his parents and siblings. It was submitted these matters impact on the offender’s moral culpability and should mitigate the sentence imposed.

87. I will take these matters into account as part of the subjective case of the offender. There is no doubt that his family life has been adversely impacted because of the strident beliefs of family members in the Brethren Church. By reason of those beliefs, which he appears to no longer hold, he has lost contact with his family. I do not see any basis on the evidence before me, including in the psychologist report, to conclude on the balance of probabilities that those matters do impact upon his moral culpability for the offences he has committed. I do not see any connection between the stringent conditions he was forced to endure when a member of the church, or the consequences of his excommunication, on his repeated abuse of his stepdaughter.

88. Nor do I accept that any mental health conditions are relevant in a causative sense to the offending. He had symptoms of PTSD by reason of his treatment by the Church. I do not understand there to have been a diagnosis that he suffers from this condition.

89. He has developed an adjustment disorder following his arrest and incarceration. I will take that into account in considering the onerous nature of custody and whether there are special circumstances.

90. I do not think there is any material on the evidence before me which reduces his moral culpability.

Remorse

91. As I have noted, he still does not accept that he committed the offending. He thus has no insight into the offending or to the harm it has caused to the victim. He has no remorse as he does not accept he has offended.

Prospects of Rehabilitation

92. The psychologist assessed the offender as having an overall low-moderate risk of contact sexual recidivism. There were few salient risks and a number of protective influences.

93. I accept that the offender has good prospects of returning to employment when he is released. That will either be running the farm he has or in an employed capacity utilizing his skills as a welder or fabricator.

94. The mental health issues he now faces can be treated and there is no suggestion they will impact upon his risk of re-offending.

95. His prospects of rehabilitation seem reasonable.

Victim Impact Statement

96. I received a victim impact statement. It was read in open court by the victim. It spoke of the harm caused to her by the offending. It speaks of the impact the offending has had on all parts of her life, including her relationship with her partner. I accept that the offending has dramatically adversely impacted her life in so many ways. The Court acknowledges the bravery of the victim in reading that statement.

97. The impact to the victim will be taken into account under s 3A(g) as discussed below but I do not take the victim impact statement into account as proving beyond reasonable doubt that there has been substantial harm to the victim that goes beyond that which would ordinarily be expected to be caused to a victim by such offending (cf s 21A(2)(g) of the CSPA).

Effect on Third Parties/Extra-Curial Punishment

98. The offender’s counsel submitted that the offender’s imprisonment has led to the closure of his successful business. I heard evidence from him to that effect. The property on which the business was operated has been sold. That business employed other persons. It was the main source of income for his family.

99. The offender’s wife and eldest son now seek to run the farm he owns. The eldest son left school to do so. His youngest son is still at school but works on the farm too. The wife said in evidence that she finds it very hard running the farm with her inexperience and has to use contractors for many things. There are significant expenses as a result.

100. The wife also said she finds looking after the offender’s youngest son a challenge. His behaviour has been difficult since the offender’s incarceration.

101. I accept that there is hardship visited on the financial and emotional status of the offender, his wife and their sons. I accept that his otherwise successful business had to close as a result of his incarceration. No doubt each of his wife and two sons miss him and his financial and emotional guidance.

102. However, I did not understand the offender’s counsel to submit that these impacts were wholly, highly or truly exceptional and were over and above that which would unavoidably flow from the incarceration of the offender who was the putative head of the family and primary breadwinner through his business (see R v Edwards (1996) 90 A Crim R 510 at 515). If I am wrong and that submission is made, I do not accept it.

103. I do not think the evidence before me establishes that there are exceptional circumstances here of the impact on the family or the finances of the offender. What has happened is a natural and inevitable consequence of the serious offending he engaged in which inexorably led to him being placed in custody on the jury verdicts pending sentence. He will as a result of that offending spend a further significant time in prison.

Sentencing Principles

Purposes of Sentencing

104. I must have regard to the purposes of sentencing in s 3A of the CSPA.

105. It is well known that child sex offences have a profound and deleterious effect on the victims for many years, if not the whole of their lives. Psychological damage may follow (see the discussion in Bravo v R [2015] NSWCCA 302 at [48] and the authorities there cited). This is so for the offences the subject of s 21B and to those that aren’t. I do not understand sentencing practices and principles relevant to those offences for 2009 ignored the Court’s experience of the impact of child sexual offending on the victims or the impact of sexual assault on a victim for those offences which are not defined as child sexual offences.

106. The purposes of sentencing of specific and general deterrence, retribution and protection of the community are prominent in this case. There is a need for the offender, and others of his ilk, to know that crimes like these against children or their teenage stepchildren will be met with significant and lengthy terms of imprisonment. Such offending will be denounced, recognising the harm it does to its innocent victims. I expressly recognise the harm done to the victim in this case.

107. There is no issue that the s 5 threshold has been crossed and that no other sentence other than one of imprisonment is appropriate for each of the offences.

108. I have sought to identify above when dealing with the individual offences recognition of the trauma of sexual offending. That trauma applies and should be recognised not only for the offences to which s 25AA of the CSPA applies but to all of the offences. It was not with the stroke of a legislative pen that courts became aware of the longstanding impacts of trauma on victims of sexual assault and child sexual assault.

109. For the offences which must be sentenced in accordance with the sentencing principles in existence at the time of the commission of the offences (Counts 4, 5, 6 and 7 as set out above), I have endeavoured to follow those practices. Neither party has identified any particular practice or principle which would significantly divert away from the approach I have taken to find the facts, identify the objective seriousness, apply any statutory aggravating and mitigating factors, take into account the offender’s subjective case and other orthodox sentencing principles to arrive at an indicative sentence for those offences.

110. I have considered the Sentencing Council extract that is an annexure to the offender’s submissions. I also have considered the other cases referred to in [25] of the offender’s submissions with respect to the s 73 offences in Counts 5, 6 and 7 and agree with Mr Davis’s submission that those cases are of limited guidance due to the starkly different factual matrices and differing mix and amounts of charges to this matter.

111. I am sentencing this offender for a pattern of repeated offending against someone who looked to him for care and guidance as a stepparent. Rather than offer that guidance, the offender engaged in a course of abuse executed by him at night in the victim’s bedroom for his own perverted gratification. Each offence was a gross breach of trust.

112. As I have set out, whilst I will take into account the subjective matters raised by the offender through his counsel and in the report of Dr Dornan, there is nothing in those subjective factors which significantly mitigates the offending, either its seriousness or the offender’s moral culpability for it.

104. A proper application of the purposes of sentencing means that this offender will spend a significant time in prison.

Aggregate Sentence

114. I propose to impose an aggregate sentence pursuant to s 53A of the CSPA. I am required therefore to set out an indicative sentence for each offence. For offences with a standard non-parole period, I will also set out an indicative non-parole period: s 54B(4) of the CSPA.

115. I accept that in determining the overall sentence I impose on the offender, I must have regard to the principle of totality. This requires me to calculate a sentence in respect of each offence, consider the principles governing accumulation and concurrency, and review the aggregate sentence to consider whether or not it is just and appropriate.

116. I must look at the totality of the criminal behaviour of the offender, ask myself what is the appropriate sentence for all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.

117. I am required to have regard to the fact that the offender is being sentenced for multiple offences, and to ensure that the ultimate sentence imposed is appropriate for the totality of the offending and to the offender’s personal circumstances: see R v Chan [2000] NSWCCA 345.

118. The offences the subject of Counts 2 and 3 and then 4, 5 and 6 temporally took place in the same incidents (that is, there were two incidents comprising those two groups of offending). I accept there should be some concurrency to reflect this fact, however, each separate offence itself would have been traumatic for the victim and they are separate acts of criminality. There will thus be some cumulation for those offences as well.

119. The sentence will be backdated to 7 December 2022 to reflect the 1 day the offender spent in custody and then the time spent in custody since the jury delivered their verdicts of guilty on 8 December 2022.

Standard Non-Parole Periods

120. Three of the counts for which the offender is being sentenced have standard non-parole periods (‘SNPP’). I note that the maximum penalties and SNPPs are legislative guideposts for the sentences to be imposed. It is a matter to be taken into account by a court in determining the appropriate sentence: s 54B(1) of the CSPA.

121. In this matter, as I have said there is little, if anything, by way of mitigating factors for the offender. There is no matter, such as a strong subjective case, or anything else which reduced his moral culpability.

122. Having considered and determined the objective gravity of each of the offences and having regard to all of the factors that bear upon the instinctive synthesis of the sentencing process, I will take the SNPPs into account as part of that process in determining the appropriate sentence.

Special Circumstances

123. I accept that the time spent by the offender in custody has been, and will be, onerous. It is his first time in custody. He has little if any visits from his family. There are some AVL and telephone visits. His geographic location has made personal visits impractical.

124. I also accept that there have been COVID lockdowns which have made custody more onerous.

125. I also accept his psychological condition has deteriorated since being in custody and he will require treatment for this.

126. There will be a finding of special circumstances to adjust the statutory ratio.

Sentence

127. CF:

1. For the offences of which you were found guilty, you are convicted.

2. For Count 1, I indicate a term of imprisonment of 18 months with an indicated NPP of 11 months.

3. For Count 2, I indicate a term of imprisonment of 18 months with an indicated NPP of 11 months.

4. For Count 3, I indicate a term of imprisonment of 6 years.

5. For Count 4, I indicate a term of imprisonment of 18 months with an indicated NPP of 11 months.

6. For Count 5, I indicate a term of imprisonment of 2 years 6 months.

7. For Count 6, I indicate a term of imprisonment of 5 years.

8. For Count 7, I indicate a term of imprisonment of 5 years.

9. I set an aggregate term of imprisonment of 14 years.

10. I set a non-parole period of 8 years and 10 months.

11. The sentence will expire on 6 December 2036.

12. The first date you will be eligible for release to parole is 6 October 2031.

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Decision last updated: 26 October 2023