R v CG

[2023] NSWDC 383

District Court

New South Wales

Medium Neutral Citation:

R v CG [2023] NSWDC 383

Hearing dates:

8 June 2023

Date of orders:

10 May 2023

Decision date:

10 May 2023

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Impose a Community Correction Order

Catchwords:

CRIME – Child sexual assault – Historical Child Sex Offences – When offender juvenile

CRIME – Child sexual assault – Elapsed time between commission of offence and plea of guilty – Purposes of sentencing

Legislation Cited:

Child Welfare Act 1939 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Records Act 1991 (NSW)

Cases Cited:

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

WB v R [2020] NSWCCA 159

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
CG (Offender)

Representation:

Counsel:
Mr B Allison (Crown)
Mr Kent (Offender)

File Number(s):

2022/00082732

Publication restriction:

Statutory non-publication order
Non-publication order in relation to victims

SENTENCE

The Charges

1. The offender stands to be sentenced having pleaded guilty to the following charges: That between 1 January 1974 and 31 December 1976 at Tregear, he assaulted SG, a female under the age of 16 years, and committed at the time of the assault an act of indecency. That is an offence under the then s.76 of the Crimes Act 1900 (NSW) and has a maximum penalty of 5 years imprisonment. That offence was count 1 on an indictment the Crown presented against the offender.

2. There is also an offence that between 1 January 1976 and 30 March 1976 at Tregear the offender assaulted AG, a female under the age of 16 years, and at the time of the assault committed an act of indecency. That too is an offence under the then s.76 of the Crimes Act and at the relevant time carried a maximum penalty of 6 years imprisonment. That offence was count 4 on the indictment.

3. There is a 3^rd offence, being an offence that between 1 January 1976 and 19 August 1976, at Tregear the offender assaulted a male person, namely MG, and committed an act of indecency upon him. That is an offence under the then s 81 of the Crimes Act and at the relevant time had a maximum penalty of 5 years imprisonment. That offence was count 6 on the indictment.

Form 1 Offences

4. The offender acknowledges his guilt in relation to a number of other offences which are on 3 Form 1s.

5. In relation to the Form 1 concerning the offence in count 1, the offender acknowledges his guilt in relation two indecent assaults committed upon SG during the period 1 January 1978 and 1 February 1979 and asks that I take those offences into account when I sentence him on count 1. The offender was between 16 and 17 years of age as at the date of those offences.

6. In relation to the Form 1 that relates to count 4, the offender acknowledges his guilt in relation to a further indecent assault concerning AG, that occurred between 1 April and 30 April 1976, and asks that I take that into account when I sentence him on count 4. The offender was 14 years of age as at the date of that offence.

7. In relation to the Form 1 that relates to count 6, the offender acknowledges his guilt in relation to a further indecent assault on MG that occurred between 1 January 1976 and 19 August 1976 and asks that I take that offence into account when I sentence him on count 6. The offender was between 14 and 16 years of age as at the date of that offence.

The facts

8. The following is taken from the agreed facts.

9. The offender is the biological brother of all three victims. The family lived in England when AG was born. At the time, the family comprised of the offender’s mother, the offender’s father, sisters J, twins D and DA, and the offender. They emigrated to Australia in early 1967 where they lived in a house in Lansvale New South Wales. In 1968, twin brothers M and MA were born.

10. In 1970, the family moved to live in a property in Tregear NSW. SG was born shortly thereafter in 1971. It was a four-bedroom housing commission house consisting of a lounge room, kitchen and dining room, toilet and separate bathroom, and laundry room. The parents shared a bedroom. J, SG and AG shared the back bedroom, CG, MA and MG shared another, and D and DA shared the fourth bedroom.

11. The victim SG recalled that her family were living at the Tregear address in 1971 when she was born. She described the house as a four-bedroom house that the family lived in from around 1971 to 1978.

12. The victim, SG, was badly burned in January 1978 when she was 6 years old. Before she had suffered the burns and before she had started school (in 1976), the victim would often go into the offender’s bedroom and play his guitar in the early morning or afternoon. She recalled the offender shared a bedroom with the twins MA and M. The offender had a bed on one side of the room, whilst the twins occupied a bunk bed on the other side of the room.

Count 1: Assault female under the age of 16 years, and commit act of indecency – s76 Crimes Act 1900

13. SG was aged between 3 to 5 years old during a period of offending against her between 1974 and 1976. On one occasion during this period, the offender called the victim into his bedroom. M was already in the bedroom. M remained in the bedroom during this entire interaction and watched.

14. The offender was sitting on the bottom bunk bed and had his pants down while he played his guitar. The offender told the victim “Suck my dick”. The victim complied. The offender had an erection and the victim saw his penis was circumcised. The offender showed the victim how to suck his penis in a way that made him happy.

15. During this period between 1974 and 1976 there were various other uncharged instances of similar conduct. Count 1 was not an isolated incident. To make the victim do what he wanted, the offender would punch her, give her a ‘dead leg’, say horrible things to her or threaten her. He would say things like, “Do not tell mum and dad, or I will make sure you get in trouble for something like taking a biscuit”.

Count 2 (Form 1): Assault female under the age of 16 years, and commit act of indecency – s76 Crimes Act 1900

16. SG was aged between 5 to 7 years old during a period of offending against her between 1976 and 1978. On one occasion during this period and just after the victim had suffered her burns, the offender told the victim to go into his bedroom. This occurred just after dinner when it had become dark outside.

17. The victim SG walked into the offender’s bedroom. The offender was sitting on the bottom bunk bed, using a pick to play his guitar. It was very dark in the bedroom.

18. The offender told SG to go underneath the bunk bed and onto the floor. The offender lay on his side underneath the bed, and the victim lay on her side facing the offender. They were lying top and tail, with the victim’s head near the offender’s feet and the offender’s head near the victim’s feet.

19. The victim asked the offender a number of times, “Why do we have to go under the bed?” and the offender would answer, “So no one knows we’re in here”.

20. The offender told SG to give him “a hand job”. The offender put his hand down the victim’s pants, and circled his hand around her vagina. He did not put his fingers inside her vagina.

21. During this period there were various other uncharged instances of similar conduct.

Count 3 (Form 1): Assault female under the age of 16 years, and commit act of indecency – s76 Crimes Act 1900

22. The victim SG recalled the last incident with the offender was during the summer in around 1978, after the family had moved to a house in Heckenberg.

23. At about 7:30pm or 8pm, the victim and her siblings were sitting outside in the backyard near the barbeque. At some point after they had finished eating, the victim and the offender were alone.

24. The offender grabbed SG’s hand, and put it underneath his shorts and onto his penis. The victim knew that this meant the offender wanted her to masturbate him which she proceeded to do.

Count 4: Assault female under the age of 16 years, and commit act of indecency – s76 Crimes Act 1900

25. AG was aged around 12 years old during the period of offending against her between 1 January to 30 March 1976.

26. The victim AG was swimming in the backyard pool at the house in Tregear. She was in the pool moving her way around the edge of it. The offender came into the pool and swam up behind her. He pulled down the victim’s swimming costume, exposing her bottom. The offender pulled his own pants down and pulled out his penis. The offender pressed his erect penis against the victim’s bottom and pushed it against her anus. The victim felt immediate pain. The victim asked, “What are you doing? Stop it”. The offender said, “No. Like before, if you don’t do what you’re told, I’m going to get my friends onto you”. The victim panicked and couldn’t move. The offender stayed behind her, keeping the end of his penis in the same position against her bottom.

27. The offender bent the victim over and crouched behind her. They were both below the water level and the water was up to the victim’s shoulders. The offender said, “Keep moving around the pool”. The victim ‘duck walked’ around the pool, with the offender staying behind her. The offender kept his penis in the same position the whole time.

28. This continued for a few minutes before the offender let the victim go. The victim got out of the pool straight away. The offender said, “Don’t say anything, because you know what will happen”, and the victim replied, “what do you mean?”. The offender said, “Do I need to get my friends on to you?”, and the victim replied no and walked away.

29. This incident in the pool was not isolated. There were other similar incidents in the pool between the summer months between January and March of 1976. The offender would mostly assault the victim when he was alone with her in the pool, however he would continue these assaults even when the victim’s other siblings were present as well. The offender did not ejaculate. After that summer, nothing happened for a period of time.

Count 5 (Form 1): Assault female under the age of 16 years, and commit act of indecency – s76 Crimes Act 1900

30. The next incident occurred around two months after the victim AG commenced high school. On a weekend around mid-afternoon, everyone in the family was home except for their father. The victim walked past the offender’s bedroom where he was laying on his bed. The offender called out to her “Get in here! You know what you have to do”. The victim went in and started to masturbate the offender. As this was happening, the victim saw her mother walk past the offender’s bedroom and look in to see what was happening. She walked away without saying anything. The victim did not say anything to the offender, but stopped and stood up. Within seconds, their mother returned to the bedroom with a broom and told the victim to get out. The victim left the room and stood in the doorway.

31. Their mother used the handle of the broom to smack the offender all over his body as he lay in his bed in the foetal position. As their mother hit the offender, she said “You’re a dirty fucking little bastard. I knew it was you all the time. Your father won’t deal with you, I will”. She continued to repeatedly hit the offender with the broom, and accidently hit the lightbulb hanging from the ceiling causing it to smash. She stopped and said to the victim “A, come and get this broom off me before I kill the little bastard”.

Count 6: Assault male and commit an act of indecency – s81 Crimes Act 1900

32. MG was aged around 8 years old during the period of offending against him between 1 January and 19 August 1976. Before turning 8 years old, the victim recalled sitting in the loungeroom with his whole family. They all sat in the positions they would usually sit in watching a television show he recalled to be ‘the bionic man’. The television series ‘6 Million Dollar Man’ featuring a bionically implanted character aired between 1974 and 1978. While the family watched television, the offender said to the victim “I need your help in the bedroom.” The victim followed the offender to the middle bedroom which was next door to the bedroom they shared. The offender closed the door behind him and pulled down his pants. The victim saw that the offender’s penis was fully erect. They positioned themselves so that they lay side by side on the floor, with the victim facing the offender’s penis and the offender facing the victim’s penis.

33. The offender asked, “Do you want to suck it?”. Thinking this was normal behaviour, the victim put his mouth around the offender’s fully erect penis and began to suck it. He could not fit the offender’s entire penis into his mouth.

Count 7 (Form 1): Assault male and commit an act of indecency – s81 Crimes Act 1900

34. The offender put the victim’s penis into his mouth and sucked it, moving his mouth up and down the length of his penis. The victim could not recall how long this lasted.

35. The offender then said “Stop”, and the victim got up off the floor. The offender told the victim to go and brush his teeth. The victim went to the bathroom to brush his teeth and the offender remained in the bedroom. The victim then went back to the lounge room where everyone was still watching the television.

36. This offending against MG was also not isolated.

Complaint to FACS

37. In November 1978 just before the family moved to Heckenberg, the victims’ mother reported the offender to Family and Community Services (FACS). Two FACS officers came to the family home in Tregear and interviewed each of the siblings separately. The siblings were all asked not to speak with each other about what was said to the officers.

38. When speaking to AG, the officers informed her that there had been allegations made about the sexual acts committed by the offender in his bedroom and in the pool. AG told the officers what had happened. Following the interviews, the offender was taken away with the FACS officers in their car.

39. The victims did not see the offender for at least another two or three months until they had moved to the new house in Heckenberg. The offender was then allowed to return to live with the family in that house. By that stage, the victims’ mother and father had separated.

40. In May 1979, two FACS officers returned to the family’s house. Again, they interviewed each of the family members separately.

41. AG told the officers about what had happened. The officers told her that they were unaware of any previous complaints from previous reports. AG told the officers that nothing further had happened to her since the offender had returned home.

Complaint to Police

42. On 25 September 2015, MG provided a statement to police.

43. On 24 June 2017, AG provided a statement to police.

44. On 5 February 2022, SG provided a statement to police.

Arrest and interview of the offender

45. In 2018, the offender initially agreed to an interview with Police, before becoming upset and refusing to continue with the interview before listening to the allegations put to him.

46. An arrest warrant was later obtained and police located the offender on 30 July 2021. He was arrested and charged with the offences.

The Victim Impact Statements

47. There are two victim impact statements before me from AG and MG which detail the traumatic impact the offender’s offending has had upon them.

Objective seriousness

48. I now turn to the objective seriousness of each of the offences. I will consider the closely related issue of the offender’s moral culpability for the offending after I have reviewed the offender’s subjective case.

49. Count 1 occurred between 1 January 1974 and 31 December 1976. In that date range the victim was between 3 and 5 years of age. The offender was between 12 and 15 years of age. It is not possible to be satisfied beyond reasonable doubt as to their respective ages when the offence occurred. The victim was very young, well below 16 years of age. The offender was approximately 9 years older than the victim and it can be inferred bigger and stronger than she was. The offence involved the offender having the victim felate him but there is no suggestion that he ejaculated. The offence occurred in the victim’s home which was also the home of the offender. The offence occurred in the presence of the victim’s young brother who watched the offence. I am not satisfied beyond reasonable doubt that the violence referred to in paragraph [13] of the agreed facts was inflicted on the victim as at the time of this particular offence, given how the agreed facts have been drafted. The offence was clearly a very serious offence, given the nature of the sexual act and the age difference between the offender and the victim.

50. Count 4 occurred when the victim of that offence was aged 12 years of age and the offender was 14 years of age. The age difference between the victim and the offender was only 2 years in this instance. The offence involved the offender pushing his erect penis up against the anus of the victim while they were in the family swimming pool. The circumstances of the offence, to my mind, are reflective of the immaturity of the offender at that point in time. The victim experienced pain, although there was no penetration of the anus nor did the offender ejaculate. The offence lasted for “a few minutes”, and the offender persisted even though the victim asked him to stop. The offender made a threat to the victim if she were to tell her parents. The offence occurred at the victim’s home which was also the offender’s home. As the victim experienced pain and the offender persisted after the victim had asked him to stop, and threatened the victim, the offence is a serious offence.

51. MG was the victim of count 6 which occurred between 1 January and 19 August 1976. The victim was 7 years of age, approaching 8, as at the time of that offence. The offender was 14 years of age, so the age difference between them was approximately 7 years of age. It may be inferred that the offender was bigger and stronger than the victim given the age difference. The offence involved the offender having the victim suck his penis. The offender did not ejaculate. The offence also occurred in the victim’s home which was also the offender’s home. Given the nature of the sexual act the subject of the charge and the age difference between the victim and the offender, the offence is a very serious offence.

52. In relation to the offence in count 1, the following statutory objective aggravating factors under s. 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) are present: the offence was committed in the presence of another child; the offence was committed in the victim’s home. I have had regard to both those factors in my assessment of the objective seriousness of the offence in order to avoid double counting.

53. In relation to the offence in count 4, the following statutory objective aggravating factor under s.21A of the Crimes (Sentencing Procedure) Act was present: the offence was committed in the victim’s home. I have had regard to that in my assessment of the objective seriousness of the offence in order to avoid double counting.

54. In relation to the offence in count 6, the offence was also committed in the victim’s home and I have had regard to that in my assessment of the objective seriousness of the offence.

55. The Crown submitted that in light of the content of the victim impact statement from MG, I would also be satisfied that the factor in s.21A(2)(g) was established being that the injury, emotional harm, loss or damage caused by the offence was substantial. No psychological evidence was tendered in relation to MG and I note that his trauma as expressed in his victim impact statement doesn’t appear to be limited to the offence the offender perpetrated upon him. MG refers to the fact he was isolated as a child, that he could not interact with people and that he could not read or write when he attended school, and had been left to defend himself. These comments seem to be directed to the manner in which he was brought up, rather than the commission of the offence by the offender. I note in that regard there is evidence in the offender’s subjective case from Youth and Community Services as to the violent and dysfunctional family in which the victims and the offender grew up. I accept that the offence by the offender had an adverse impact on MG, but I am not satisfied that it was such as to amount to the aggravating factor provided for in s.21A.

The Impact of the Form 1 offences

56. The offences on the form 1s mean that the individual offences that the offender is to be sentenced for were not isolated instances, but part of a course of conduct perpetrated by the offender on his 3 victims.

57. The second offence on the form 1 concerning count 1 occurred when the offender was either 16 or 17 years of age. The offences on the form 1 have some impact upon the sentence to be imposed on count 1 which concerns SG.

58. The offence on the form 1 that relates to count 4 involved the offender having AG masturbate him. There is no suggestion that the offender ejaculated, and he was stopped by his mother within a short period of time. In these circumstances the offence has a limited impact upon the sentence to be imposed on count 4 which concerns AG.

59. The offence on the form 1 that relates to count 6 involved the offender sucking MG’s penis. The offence has some impact upon the sentence to be imposed on count 6.

The offender’s subjective case

60. The offender is currently 61 years of age. He was between 12 and 15 years of age when he committed the offence in count 1 and 14 years of age when he committed the offences in counts 4 and 6. He was between 16 and 17 years of age when he committed the offence in count 3 which is on a form 1. He was a juvenile when he committed all of the offences, and in relation to the offences he is to be sentenced for, he was well below the age of 18.

61. While the offender is now a mature age male, in my opinion, the principles associated with sentencing a juvenile need to be considered here, given the age the offender was when he committed the crimes for which he is to be sentenced.

62. Those principles are essentially as follows: Considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. The law recognises the capacity for young people to reform and mould their character to conform to society’s norms, therefore, considerable emphasis is placed on the need to provide an opportunity for rehabilitation.

63. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence. Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult.

64. The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity. In determining whether a young offender has engaged in “adult behaviour”, the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence. Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

65. I do not consider here that the offences involve the offender engaging in adult behaviour. They are offences reflective of immaturity in my opinion.

66. The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity. A “child-offender” of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth.

67. Here, in terms of the age of the offender as at the date of the offences for which he is to be sentenced, he was well below 18. When I have regard to the content of the documents that are before me from Youth and Community Services from the late 1970’s, which I will shortly review, together with the young age of the offender, I am satisfied on the balance of probabilities, that the offender was not fully aware of the consequences of his actions, at least to some degree.

Criminal History

68. The offender has a very limited criminal history. In the 1980’s he had a conviction for a drink driving offence for which he was fined. In the 1990s he had convictions for certain driving offences, none of which resulted in anything other than a fine or a bond. It appears that those offences on his criminal record are now spent convictions under the Criminal Records Act 1991 (NSW).

69. In 2013 and 2014 he was placed on bonds for breaching an ADVO (Aggravated Domestic Violence Order), which did not relate to any of his victims. His criminal history does not disentitle him to leniency here.

Documentary material

70. There are before me the following documents: a psychological report dated 6 April 2023 by Dr Kim Dillati; extracts from the Family Casework File of the Child Welfare Department concerning the offender’s family and what occurred in relation to the offender when there was disclosure of the offending in the 1970’s; a letter dated 3 April 2023 under the hand of Neil Barassi, psychologist; a letter under the hand of the offender’s partner who also gave evidence on sentence and a testimonial under the hand of David McNamara.

71. The offender did not himself give evidence at the sentence hearing but his current partner did.

Family background

72. The offender told Dr Dillati that he was born in the United Kingdom and his family migrated to Australia when he was 5 years of age. He was the eldest of 8 siblings. He described to Dr Dillati an unsatisfactory childhood recalling “an unrested family”, fuelled by conflict and violence between his parents. He stated to the psychologist a belief that he had an overly parentified role as the eldest sibling of his family, including babysitting his siblings at the age of 9. The offender also recalled a history of severe domestic violence and physical abuse by his parents. He described being beaten by his parents on a number of occasions. He reported that on occasions he arrived at school with physical injuries and his teachers reported the matter to the police who questioned his parents who denied having assaulted him. The offender reported that he had been afraid of his parents due to their violence and aggression.

73. The offender claimed to Dr Dillati that he had been sexually abused by his father when he was 5 years of age and by his mother at the age of 11 or 12 for 10 years.

74. In terms of his relationship history, he told Dr Dillati that he had been in 3 long term, serious relationships. With his first wife he had a son in 1988, but has had no contact with his son in the last 5 years. His first marriage was between 1986 and 1989. His second marriage was between 2002 and 2008, with his wife passing away from a form of cancer.

75. For the past 9 years he has been in a relationship with his current partner who gave evidence on sentence. His partner gave evidence of the positive nature of their relationship.

76. The account that the offender gave the psychologist Dr Dillati about his childhood is essentially corroborated by documents tendered on sentence from the Family Casework file concerning his family held by Youth and Community Services at the time. In a document prepared by the Liverpool District Officer and date 5 March 1979, the offender’s family was described as a “generally disturbed, multi problem family”. The document also contains the following: “[The offender’s father] is psychiatrically disturbed and has violent outbursts. Children are terrified of him. One evening in February [the offender’s father] bashed MA. [The offender’s mother] attempted to defend MA and stabbed [the offender’s father]. The family has strange attitudes to rape and sex. CG alleges that [his father] assaulted him 5 years earlier.”

77. In a court report dated 28 July 1980 the following appears in a report of the Liverpool District Officer: “The dynamics of the family are weird and the parents are both paranoid about alleged sexual assaults that the elder son CG made on the girls. None of these was confirmed by the police and [the offender’s father and mother] cannot accept this. CG (who was 18 at the time of the report) refuses to return home and few officers who have been associated with the family blame him.”

78. Ms B gave evidence that during her relationship with the offender he has told her of his traumatised childhood and upbringing.

Education and employment history

79. The offender completed year 11 and has achieved qualifications in information technology and business administration.

80. In relation to his employment, the offender told Dr Dillati that in 1978 he worked as a despatch clerk for 12 months and resigned after receiving an injury. He then worked as a warehouseman for 6 years before re-locating to the Gold Coast with his wife in 1997. He has maintained several short term employment positions and was working as a cleaner until early 2023. There is a testimonial before me from Mr McNamara which speaks well of the offender’s performance in that work. As at the time of Dr Dillati’s report, the offender was reported as being unemployed.

Substance use

81. From the age of 18 the offender began to use alcohol. He denied to Dr Dilati that he used prohibited drugs or abused prescription medication.

Psychological/psychiatric history

82. Dr Dillati records in his report that the offender reported a history of mental health symptoms consistent with a Generalised Anxiety Disorder since childhood, Major Depressive Disorder, suicidal ideation, panic attacks and symptoms consistent with PTSD. The offender gave the psychologist a history of 3 suicide attempts and described a current suicidal ideation in relation to the current offences.

83. After psychometric testing Dr Dillati considered that the offender met the criteria for diagnoses of; Major Depressive Disorder; Generalised Anxiety Disorder and Post Traumatic Stress Disorder.

84. After administering a number of assessments designed to assess the risk of the offender engaging in sexual offending in the future, Dr Dillati considered that the offender had a moderate risk for doing so. Dr Dillati expressed the opinion that the offender would require psychological and psychiatric treatment of at least 2 years to deal with his mental health conditions. I note he is currently receiving regular treatment from Mr Neil Brassil psychologist.

85. In terms of any connection between his upbringing and the commission of the subject offences, Dr Dillati notes that “Research has found that individuals who have experienced family dysfunction, particularly in childhood, may be more likely to exhibit sexually aggressive behaviours”. Given the account the offender had provided to the psychologist concerning his early childhood, Dr Dillati expressed the opinion that the offender had developed an array of mental health symptoms consistent with individuals who have been raised in abusive households and experienced childhood sexual assault.

Attitude to the offence

86. Although the offender has pleaded guilty, Dr Dillati’s report records that the offender denied a history of harmful sexual behaviours towards his siblings. I also note that a Youth and Community Services document dated 5 March 1979 in so far as the allegations are concerned states: “At this stage CG was under intense psychological pressure as he had no conscious awareness of the incidents.” According to Ms B’s evidence, the offender has told her he could not remember any of the events the subject of his offences.

The future and risk of re-offending

87. I set out earlier Dr Dillati’s conclusions about the risk the offender has of re-offending. That risk must also take account of the fact there is no suggestion that the offender has re-offended in a similar way since he was removed from the family home when he was 17.

Imposition of sentence

88. The offender’s pleas of guilty were entered on the morning of his trial, and he is to be allowed a 5% discount of his sentence for the utilitarian value of his pleas.

89. There is no evidence of genuine remorse here apart from his pleas of guilty.

90. Given the period of time since the commission of the offences, and there having been no similar offending, in essentially over 40 years, I consider that the offender is substantially rehabilitated.

91. If the offender is to receive a sentence of imprisonment, then there should be some accumulation of the sentences given the fact that there are 3 victims.

Delay and the events of 1978 and 1979

92. The documents from Youth and Community Services show that the offender’s mother and his siblings made allegations in December 1978 that the offender had sexually assaulted his siblings. The offender was removed from the family home and arrangements were made for him to stay at the St Annes Crisis Centre. Those documents record that a number of relevant authorities were involved in considering the circumstances of the offender at that time. The document dated 5 March 1979, I referred to earlier, records that the “District Officer, Police, Psychologist from Area Health, psychiatrist from Concord Hospital were all involved in this case. The Police did not charge CG as it was difficult to establish the accuracy of the allegations and also there was no medical evidence. Further they thought that the offender’s mother was magnifying it and possibly fabricating. Arrangements were made to remove CG from the home environment for quite some time. He was placed at Clifton Lodge, North Sydney, under the supervision of Chatswood District Office.” The placement at Clifton Lodge appears to have been after he was removed and spent time at the St Anne’s Crisis Centre.

93. Part of the material from Youth and Community Services that is before me is a letter from a Father Rawlings and appears to be dated some time in 1979. Father Rawlings was writing on behalf of St Annes Crisis Centre in Liverpool. It records that the offender was placed there on 3 January 1979 and remained there for a month. The letter records that the offender complied with all the rules of the Centre. It was noted that he was a capable and reliable worker and was said to be trustworthy and responsible. The letter also records that the offender’s behaviour at the Centre was consistent, however, after any phone contact with his parents, it was noted that the offender would be extremely upset and confused. It was also noted that the offender’s emotions appeared to be unstable with regard to his relationship with his parents and his sisters.

94. What is clear from the material before me is that the offender was removed from the family home for some time by the child welfare authorities at the time, as a consequence of the allegations that were made in 1978. It is also clear that the relevant investigation was referred to the police and they decided not to charge the offender. It appears that the offender’s removal from the family home for a period was done as, in effect, punishment for the allegations that were made against him. I note this is not a case, on the material before me, of family members being initially unwilling to make statements and give evidence against the offender, and then subsequently deciding to do so. It is clear from the material before me that the authorities at the time, in particular the police, decided not to charge the offender. The offender, who was a young boy at the time, cannot be seen as in anyway responsible for the police decision not to charge him. It may well be that the police in 1978/79 had a different attitude to prosecuting child sexual allegations within a family, than they do today, but that cannot be laid at the feet of the offender.

95. In my opinion, on all the material before me, the offender was entitled to consider that he had been dealt with for the allegations by being removed from the family home at the relevant time for a considerable period of time and that the police had decided he would not be charged. This case is not just a case of delay, but of implicit representations by persons in authority that the offender had been dealt with in the late 1970’s for his offending. I accept that I have no direct evidence that the offender was told that was the case, but all of the evidence gives rise to that inference, in my opinion. Even if I am wrong in that conclusion, what occurred upon his removal from the family home was clearly, at the very least, extra curial punishment.

96. I am of course conscious of the fact that it is often the case that there is a delay in the prosecution of child sexual offences, however, the relevance of the delay to the sentence to be imposed must be considered in the context of the facts of the particular case. Here, for the reasons I have given, in my opinion, it should result in very considerable leniency being extended to the offender.

97. The delay in the charging of the offender, who was not charged until July 2021, also remains completely unexplained apart from what is contained in the documents from Youth and Community Services. There was even considerable delay in his charging from when MG first made his statement in 2015 and AG in 2017.

The Relevance of the Child Welfare Act 1939 to this sentence

98. During the course of submissions, I raised with the parties what legislative scheme would have applied to the offender if the police had charged him with the offences in 1978 or 1979. The relevant legislative scheme applicable to children at that time was contained in the Child Welfare Act 1939 (NSW). That Act drew a distinction between a child for the purposes of the legislation, who was defined to be a person under 16 years of age and a young person, who was defined to be a person who had attained the age of 16 but was under 18 years of age. I note that the offender did not turn 18 until 2 November 1979. The legislation established a Children’s Court and under s.20(2) the Children’s Court had jurisdiction to hear a charge if the offender had attained the age of 18 years but was under 21 years.

99. Section 12 of the Child Welfare Act provided that the Children’s Court had jurisdiction to hear and determine an indictable offence summarily, unless it was a charge of homicide, rape or another offence punishable by death.

100. If the offender had been charged before he was 21 years of age, the Children’s Court established under the Child Welfare Act had jurisdiction to hear the offences for which the offender is to be sentenced. Given his young age at the time of the commission of the offences, it seems a realistic possibility that he may have been dealt with in that court if he had been charged before he turned 21.

101. There was a separate sentencing regime contained in the Child Welfare Act. That regime was set out in s.83 and in so far as indictable offences were concerned, was contained in s.83(2). It provided the following sentencing options: release on probation; commit the person to the care of a person who was willing to undertake the care of the child or young person; commit the person to the care of the Minister; commit the child to an institution for a period not exceeding 3 years; or dismiss the charge, or admonish and discharge the child or young person or discharge the child or young person upon them entering into a recognisance.

102. The sentencing regime contained in the Child Welfare Act is not a sentencing pattern or standard such that it is caught by s.25AA of the Crimes (Sentencing Procedure) Act; see WB v R [2020] NSWCCA 159 at [80]. I have, therefore, had regard to the fact that there was a possibility that the offender would have been dealt with under that sentencing regime if he had been charged before he was 21 years of age.

The relevance of the Bugmy v R principles

103. In my opinion, given the evidence before me of the dysfunctional and violent childhood the offender experienced, and the nature of the offences he committed, together with the psychological evidence, there is established on the balance of probabilities a causal connection between the offender’s traumatic and disadvantaged background and the offences. The principles discussed in Bugmy v R (2013) 249 CLR 571; HCA 37 are particularly relevant here, although I acknowledge it is not necessary that a causal connection be shown for those principles to have application. I consider that the offender’s moral culpability is considerably reduced in accordance with those principles.

104. I have had regard to the objectives of sentencing referred to in s.3A of the Crimes (Sentencing Procedure) Act. Sexual offending against young children is considered abhorrent by all right-thinking members of our community. Young children should be free to experience the joys of childhood without being preyed upon sexually by older siblings. Even when cases are brought many years after the offences, significant sentences of imprisonment are usually imposed in order to properly reflect the sentencing principles of general and specific deterrence. This court, unfortunately on a far too regular basis, is called upon to denounce child sexual offending for the evil that it is. It is now well recognised that sexual offending upon young children often results in a child suffering the impact of that offending for all of their adult life.

105. However, justice requires that individual cases be assessed according to their own particular facts and established sentencing principles.

106. The Crown submitted that the only appropriate sentence here was one of imprisonment. Counsel for the offender submitted that was not the only appropriate sentence, in all the circumstances here, to impose. I record that the maximum penalties have been taken into account as legislative guideposts.

107. This is a particularly difficult sentence, in my opinion. It involves sentencing someone who, when a relatively young boy, more than 40 years ago, committed serious sexual offences upon his younger siblings. He was somewhere between 12 and 15 years old when he committed count 1 and 14 years of age when he committed counts 4 and count 6. The offender grew up in a very dysfunctional and violent household and I have found that there is a causal connection between his disadvantaged childhood and the commission of the offences. He was removed for some time from the family home by the Child Welfare authorities when the allegations were initially made in the late 1970’s. The allegations were referred to the police at that time and they decided not to have the offender criminally charged. If he had been charged at that time, there is a real likelihood that he would have been dealt with in the Children’s Court. Since the offences and being removed from the family home, he has not committed any similar offence and has a very limited criminal record.

108. Weighing up all of the relevant factual circumstances here and applying the relevant sentencing principles, I have come to the conclusion that in relation to each offence, a sentence of imprisonment is not the only appropriate sentence to impose.

109. The offender is convicted of each of the offences to which he has pleaded guilty. On count 1, being the offence concerning SG, and having regard to the offences on the form 1, I order that the offender enter into a Community Correction Order for a period of 2 years. It commences today and expires on 7 June 2025. The standard conditions apply being that the offender must not commit any criminal offence and appear before this court if called upon to do so during the term of the order. There is an additional condition that the offender continue to receive psychological treatment for the duration of that order.

110. On count 4, being the offence concerning AG, and having regard to the offence on the form 1, I order that the offender enter into a Community Correction Order for a period of 18 months. It commences today and expires on 7 December 2024. The standard conditions apply to that order.

111. On count 6, being the offence concerning MG and having regard to the offence on the form 1, I order that the offender enter into a Community Correction Order for a period of 2 years. It commences today and expires on 7 June 2025. The standard conditions apply to that order.

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Decision last updated: 20 September 2023