R v CG

[2020] NSWDC 107

District Court

New South Wales

Medium Neutral Citation:	R v CG [2020] NSWDC 107
Hearing dates:	14 February 2020
Date of orders:	06 March 2020
Decision date:	06 March 2020
Jurisdiction:	Criminal
Before:	Hatzistergos DCJ
Decision:	See [87]
Catchwords:	SENTENCING – Indecent assault – Committed over a period of 6 years – Two children involved – Children between ages of 5 and 12 years old throughout duration of the offences – Offender uncle to the children – Breach of position of trust or authority – Offences not isolated – Where complainants provided victim impact statements – Plea of guilty on first day listed for trial – 10% discount applied – Limited evidence remorse – Prior good character – First time in custody – Good prospects of rehabilitation – Evidence of impact on family members – Finding of special circumstances – Application of section 25AA of Crimes (Sentencing and Procedure) Act 1999 (NSW)
Legislation Cited:	Children’s (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 61E(1), 76, 76A, 578A(2) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22, 25AA, 28, 44, 53A
Cases Cited:	Dipangkear v R [2010] NSWCCA 156 Georgopolous v R [2010] NSWCCA 246 Helboski v R [2006] NSWCCA 168 MC v R [2017] NSWCCA 316 Mill v The Queen (1988) 166 CLR 59 R v Bednarz [2000] NSWCCA 553 R v Borkowski [2009] NSWCCA 102 R v Christoff (2003) 140 A Crim R 45 R v Daley [2010] NSWCCA 223 R v Fidow [2004] NSWCCA 172 R v Gavel (2014) 239 A Crim R 469 R v Holder [1983] 3 NSWLR 245 R v Nelson (2016) NSWCCA 130 R v PGM [2008] NSWCCA 44 Wright v R [2006] NSWCCA 122
Category:	Sentence
Parties:	Regina (Crown) CG (Offender)
Representation:	Counsel: Ms F. Sullivan (Regina) Mr G. Hoare (CG)   Solicitors: Director of Public Prosecutions
File Number(s):	2017/270916
Publication restriction:	Section 578A(2) of the Crimes Act 1900 (NSW) and s15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) apply. Pseudonyms S and T are used for the victims, B for S’ brother and CG for the Offender

Judgment

1. The Offender has entered a plea of guilty and is to be sentenced in respect of 12 Counts as follows:-

1. Counts 1 and 2, being charges in the same terms: that between 1 January 1979 and 31 December 1981, at Leumeah in the State of New South Wales, he assaulted S and at the time of the assault committed an act of indecency on S, she being then a female under the age of 16 years, namely between 10 and 12 years. These are offences pursuant to s 76 of the Crimes Act 1900 (NSW), [1] and carry a maximum penalty of 6 years imprisonment;

   1. Hereinafter referred to as “the 1900 Act”.

2. Count 3: that between 1 January 1979 and 31 December 1981, at Leumeah in the State of New South Wales, he committed an act of indecency towards S, a girl then under the age of 16 years, namely between 10 and 12 years. This is an offence pursuant to s 76A of the 1900 Act and carries a maximum penalty of 2 years imprisonment;

3. Count 4: that between 1 January 1980 and 31 December 1981, at Leumeah in the State of New South Wales, he committed an act of indecency towards S, a girl then under the age of 16 years, namely between 11 and 12 years. This is an offence pursuant to s 76A of the 1900 Act and carries a maximum penalty of 2 years imprisonment;

4. Count 5: that between 1 January 1979 and 31 December 1981, at Leumeah in the State of New South Wales, he committed an act of indecency towards S, a girl then under the age of 16 years, namely between 10 and 12 years. This is an offence pursuant to s 76A of the 1900 Act and carries a maximum penalty of 2 years imprisonment;

5. Count 6: that between 1 January 1979 and 31 December 1981, at Leumeah in the State of New South Wales, he assaulted S and at the time of that assault committed an act of indecency on S, she being a female under the age of 16 years, namely between 10 and 12 years. This is an offence pursuant to 76 of the 1900 Act and carries a maximum penalty of 6 years imprisonment;

6. Count 7: that between 1 January 1979 and 31 December 1981, at Leumeah in the State of New South Wales, he committed an act of indecency towards T, a girl then under the age of 16 years, namely, between 5 and 8 years. This is an offence pursuant to s 76A of the 1900 Act and carries a maximum penalty of 2 years imprisonment;

7. Count 8: that between 1 January 1980 and 24 September 1981, at Leumeah in the State of New South Wales, he assaulted T and at the time of that assault committed an act of indecency on T, she being then a female under the age of 16 years, namely between 6 and 8 years. This is an offence pursuant to s 76 of the 1900 Act and carries a maximum penalty of 6 years imprisonment;

8. Count 9 and 10, being charges in the same terms: that between 1 January 1980 and 31 August 1983, at Leumeah in the State of New South Wales, he assaulted T and at the time of that assault committed an act of indecency on T, she then being a female under the age of 16 years, namely between 6 and 10 years. These are offences pursuant to s 76 of the 1900 Act and carry a maximum penalty of 6 years imprisonment;

9. Count 11: that between 1 January 1984 and 31 December 1985, at Bundeena in the State of New South Wales, he assaulted T and at the time of that assault committed an act of indecency on T, she then being a person under the age of 16 years, namely between 10 and 12 years. This offence is pursuant to s 61E(1) of the 1900 Act and carries a maximum penalty of 6 years imprisonment;

10. Count 12: that between 1 January 1984 and 31 December 1985, at Bundeena in the State of New South Wales, he assaulted T and at the time of that assault committed an act of indecency on T, she then being a person under the age of 16 years, namely 11 or 12 years. This offence is pursuant to s 61E(1) of the 1900 Act and carries a maximum penalty of 6 years imprisonment.

Agreed Facts

2. The Offender is the uncle of the victims S, born in 1969, and T, born in 1973. S and T are cousins.

3. S moved to Leumeah with her family in 1979. Sometime in early 1980, the Offender and his family moved to an address in Leumeah. They would spend time together at each other’s homes and occasionally S and her brother B would sleep at the Offender’s house. The Offender and his wife would also assist with looking after S after school, due to her mother’s work commitments. T’s family would visit the Offender and his wife a few times a year for family gatherings and drop in visits.

4. The Offender would play with the children and piggyback them around the backyard regularly. On those occasions, the Offender would hold S to his back with his hands behind his back instead of linking his arms under her knees. Whilst he was doing this, he put his fingers into S’ pants and touched the outside of her vagina. This conduct occurred on many occasions over the years. The Offender admitted in his ERISP that when giving S piggy back he would touch her on the ‘bum’. On one particular occasion the Offender and other family members were present at S’ home. Whilst the children were running outside the Offender came outside and started to play with them. He gave everyone piggyback rides and ran around with the children. He picked up S and gave her a piggyback ride.

5. During the time he was carrying her, he rubbed S’ vagina on both the inside and outside of her underpants. This initially tickled S however it also stung. This was Count 1.

6. On other occasions during this time, the Offender also touched S’ vagina whilst sitting at the kitchen table. This would occur at his home, or S’ home. On those occasions the Offender would say “Come and sit on Uncle C’s lap”, and lift S onto his lap. On those occasions S complied even though she hated doing it and the Offender touched the outside of her vagina inside her underwear. On the first occasion the Offender did this, he pushed his finger against S’ vagina and it really stung. This happened nearly every time she sat on his lap. This was Count 2.

7. During this period, on an occasion when S was alone with the Offender, the Offender also exposed his penis to S. The Offender walked around the house with his penis out and played with it using his hand in front of S. S could see the Offender flicking his penis around with this hand. The Offender made admissions in his ERISP to masturbating in front of S. This conduct was said to have occurred on many occasions. This was Count 3.

8. The Offender also exposed his penis in front of S in the lounge of his Leumeah home, when S was with her cousins T and K. He exposed himself to her on many occasions. This was Count 4.

9. On another occasion at S' Leumeah residence, the Offender opened the toilet door and swung his penis around in front of S and T. The Offender made admission to this in his ERISP. These were Counts 5 and 7 respectively.

10. When sleeping at the Offender’s house, S would sleep in a bedroom on her own located down the other end of the hall from the Offender’s bedroom, which he shared with his wife. B would sleep in the lounge room on a mattress on the floor. On one occasion, the Offender came into S’ room during the night and woke her by standing over her and pushing himself towards her. The Offender said “shhh”. He rubbed his penis all over S’ face and around her nose and down her neck. This was Count 6.

11. This conduct occurred almost every time she stayed. On the occasions when the Offender entered S’ room and did this, if the Offender was seen in her room by someone else and he would say “I was just checking on her.”

12. T’s first recollection of the Offender was when she recalled being in the garage of his Leumeah home. S was also present. There was a small white car like a Corolla parked in the garage. The Offender took his penis out of his pants and grabbed the girls’ hands to make them touch it. This was Count 8.

13. On another occasion whilst at the Offender’s Leumeah home, the Offender put his hands inside T’s pants and rubbed the outside of her vagina. He also exposed his penis. This was Count 9.

14. This happened on most occasions that T visited the Offender’s home.

15. On another occasion at the Offender’s Leumeah home, T was inside a little white car parked on the driveway, and was cleaning it with the Offender. The Offender had put his penis out and rubbed T’s hand on his penis. This was Count 10.

16. Forcing T to rub his penis was not an isolated incident.

17. On other occasions at the Offender’s home, the Offender touched T near her vagina or made her touch the outside of the front of his pants whenever she left the toilet.

18. In 1984, T moved to her mother’s house in Bundeena. T was in Year 6 and was aged 11 years at the time. One night the Offender and his wife were staying over and T was crying as she had hurt herself. The Offender began to cuddle her and took her into her bedroom. The Offender placed her on her bed and continued to cuddle her quite firmly. The Offender then took his penis out, moved T’s underwear to the side, and began rubbing T’s vagina with his penis, which hurt T a lot. The Offender then stopped, although T cannot remember why. This was Count 11.

19. The last time that T recalls the Offender committing offences against her was when she was in Year 7. The Offender and his wife were once again staying at her mother’s house at Bundeena. The Offender came into T’s bedroom, lifted her nighty and started kissing her nipples and face, whilst touching her vagina and telling her he loved her. This was Count 12.

20. T subsequently told her mother what the Offender had been doing to her, however her mother was unsupportive, asking why she let him do it and why she didn’t just call out. When S was in Year 5 or 6, she told her friend at school about what the Offender did to her. S also told her mother and her mother’s then partner about sexual misconduct by the Offender when she was around 11-12 years old. She turned 12 in 1981. At that stage they were living at the Leumeah residence. S’ mother took her to the police station and she disclosed the sexual misconduct to police. Police have been unable to locate records of this report and the Offender was not charged by police at this time.

21. S made her first statement to police on 15 December 2014. T made her first statement to police on 26 October 2016.

22. Around October 2016, T called the Offender and recorded the conversation. She said “I need you to apologise for touching me for all those years, are you sorry”. The Offender apologised.

23. In August 2017, T called the Offender. The conversation was lawfully recorded. The Offender made a general admission to touching T and S and the Offender apologised to T. He also said that he had apologised to S in Fiji.

24. In August 2017, S called the Offender. The conversation was lawfully recorded. The Offender made generalised admissions to touching T and S. During the call, S asked why he “molested” T. The Offender said “I had a problem and I did get help…I was sick in the head those days…I apologise to you for what I’ve done.” S said “you’d say come and sit on Uncle C’s knee and when you’d put your finger up my skirt and into my pants and everything…you used to come into my room at night and pull your pants down and shove your penis in my face and stuff like that I remember all of that C.” The Offender replied, “Yeah”. S also said that she recalled him picking her up and exposing his penis to her in the car.

25. On Wednesday 6 September 2017, following an appointment the Offender presented himself to Campbelltown Police Station and was arrested. He was advised of his rights, and he participated in an electronically recorded interview. During the interview, the Offender:

• Admitted to exposing his penis to S and T and masturbating in front of them for sexual gratification. He also admitted to ejaculating in front of them;

• Stated he was feeling frustrated and was not having sex with his wife;

• Described the girls as being of primary school age; and

• Admitted when giving S piggybacks he would touch her on the “bum”.

Victim Impact Statements

26. Each of the victims has given the Court a Victim Impact Statement.

27. S indicated that the offending has impacted on her life in so many ways. She stated that she became self-destructive in some relationships in her early years. She stated she lost her whole family, her cousins and that the offending has had a huge impact on the whole family. Her children do not get to know their uncles, aunties or their extended family. Her eldest daughter is the only one that knows, as for the other children it is just “too heavy”. She stated that she was protecting her girls from the Offender, and disengaged herself from him and the family to protect them. She stated that her family didn’t believe her and her mother still calls her a liar, and that her mother stands by the Offender’s side and not by her own daughter. She stated that the offending continues to destroy her life. Her mother has recently told S’ fiancé in the UK that she is a liar, and as result he has stopped contacting her. She was planning her wedding and had plans to move to the UK to be with her fiancé. She stated that when she was young she turned to alcohol, and as result had a child taken off her. Her child went into care and she received no help from her family. She was always blamed. S states that her life could have been a lot better to what it is, but her life is a consequence of the Offender’s actions.

28. T also gave a Victim Impact Statement which she read aloud in Court. She stated that the Offender took away her innocence at a young age that could never be replaced. He touched her without permission, and this was highly unforgivable. Her mother didn’t believe her, as she thought he was more of a person than that. As for that, he had destroyed her relationship with her mother and other members of the family. She stated that the offending was for his own personal pleasure. She stated she is sure that the Offender’s family has suffered for his actions not just herself. She stated that whatever the sentence the Offender received had no relevance to her, but she was thankful that he has now faced up to the wrong that had been done.

29. In sentencing the Offender, I have regard to the Victim Impact Statements in the way provided for in s 28 of the Crimes (Sentencing Procedure) Act 1999 (NSW). [2] The profound impact child sex offences have is well-known, and the Victim Impact Statements confirms as much. [3] In having regard to the two statements I note the harm to the relationships of both victims with other persons, although as the Crown properly conceded, there was no suggestion that the Offender played any role in the reaction to the Victims by their families.

    2. Hereinafter referred to as “the 1999 Act”.

    3. R v Gavel (2014) 239 A Crim R 469 at [110]; R v Nelson (2016) NSWCCA 130 at [17]-[22].

Objective Seriousness

30. In relation to each of the counts the Crown contended, and the Defence accepted, that the acts involved a breach of a position of trust or authority in relation to the victims, noting that the Offender was their uncle. Although the Offender is only to be sentenced in respect of the offences referred to, the context is such that it cannot be said that each of the incidences were isolated so as to justify leniency on this basis.

31. The agreed facts do not disclose the duration of each offence this being a matter that can only be discerned from the circumstances described. I accept in each instance the duration would have been relatively short but sufficient to embrace the offending in question. However, the fact that the duration was not prolonged would not ordinarily reduce the objective seriousness in offending of this kind. [4]

    4. R v Daley [2010] NSWCCA 223 at [48] per Price J at [48] (Hodgson JA and Fullerton J agreeing)

32. In assessing the seriousness the agreed facts are limited in their description.

33. Count 1 occurred at the home of S during play including other children. The Crown did not argue that the offence was aggravated pursuant to s 21A (2) (ea) or (eb) of the 1999 Act on this basis. Nevertheless, it is part of the agreed facts that the offending occurred in the context of play activity including other children. The Offender rubbed S’ vagina on the inside and outside of her underpants whilst he was carrying her. This caused S to feel “tickled” initially but also stung. At the time of this offending, S was between 10-12 years of age, making the difference in age with the Offender one of 13 years. In assessing the objective seriousness, I bear in mind the spectrum of offending behaviour to children under 16 years of age embraced by the offence.

34. Count 2 occurred also when S was between 10 and 12 years of age, and there was 13 year difference with the Offender. It is not apparent whether the offending occurred at the Offender’s house or S’ house. This offence involved a request by the Offender for S to sit on his lap and him lifting her onto his lap. The Offender touched the outside of S’ vagina inside her underwear and was noted to have pushed his finger against her vagina so that it stung. In assessing the objective seriousness, I again bear in mind that spectrum of offending behaviour to children under 16 years of age embraced by the offence.

35. Count 3 involved the Offender walking around the house with his penis exposed, and using his hand to rub it in front of S. The Offender made admissions of masturbating in front of S, however there was no evidence that it involved ejaculation on this occasion. The agreed facts do not disclose the duration of this occurring, although it was noted that S was alone with the Offender at the time. I note that the age difference between S and the Offender was one of 13 years and at the time S was between the ages of 10-12 years of age. I note the offence itself embraces a spectrum of indecent acts towards females under the age of 16 years.

36. Count 4 involved the Offender exposing his penis in front of S when she was with her cousins (T and K) in the lounge room of the Offender’s home. I note that the age difference between S and the Offender was one of 13 years and at the time S was between the ages of 10-12 years of age. The Crown contended that the offending was aggravated as it was in the presence of a child under 18 years of age pursuant s 21A(2)(ea) of the 1999 Act. The age of K has not been described, although I do note that it was in the presence of another person. I note again the Offence embraces a spectrum of indecent acts towards females under the age of 16 years.

30. The offending in Counts 5 and 7 involved the Offender at S’ home, where he swung his penis around in front of both S and T. In sentencing the Offender, I bear in mind the age of S being between the age of 10-12 years, and T being between the ages of 5-8 years. The age difference between the Offender and the victims was 13 years in the case of S and 17 years in the case of T. The offending in each case is aggravated by reason of the fact that it was committed in the presence of a child under the age of 18. [5] I accept that the offending was aggravated in that it occurred in the house of S. Despite the difference in ages in the two victims I have borne in mind each other’s presence in assessing the objective seriousness. I note that the Offence embraces a spectrum of indecent acts towards females under the age of 16 years.

    5. S 21A(2)(ea) of the 1999 Act.

31. Count 6 occurred when S was sleeping at the Offender’s house. The Offender would come into S’ room during the night and wake her by standing over her and pushing himself towards her. He told her to “shhh” and then rubbed his penis all over S’ face, her nose and down her neck. It was said to have occurred every time S stayed over. I bear in mind that the age difference was one of 13 years and that at the time S was between the ages of 10-12 years of age. I also bear in mind that the offending involves committing an act of indecency towards a female under the age of 16 years and the spectrum of indecent acts that the section embraces. I also bear in mind that the offending involved multiple areas of contact, the Offender requesting the victim to be quiet and a level of force was used.

32. Count 8 occurred in the Offender’s home and involved T in circumstances where S was also present. In this latter respect the offence is aggravated as S was under the age of 16 years. [6] The Offender took his penis out and grabbed the girls’ hands to make them touch it. The offending in question only relates to T, and the age difference at the time of the offending was one of 17 years. The offence in question relates to an act of indecency towards a female less than 16 years of age and at the time, T was between the ages of 6 and 8 years old. In assessing the objective seriousness, I again bear in mind that the spectrum of offending behaviour to children younger than 16 years of age embraced by the offence.

    6. S 21A(2)(ea) of the 1999 Act

33. Count 9 also occurred in the Offender’s home and involved the Offender putting his hands inside the T’s pants and rubbing the outside of her vagina, as well as exposing his penis.

34. Count 10 also occurred inside the Offender’s home and involved the Offender having his penis out and making T’s hand rub his penis. It occurred in the context where the Offender was cleaning his car, with T being inside it in the driveway. The duration of the incident is again not described. I bear in mind the age of the victim at the time being between 6-10 years of age and the age difference with the Offender being one of 17 years. In assessing the objective seriousness, I again bear in mind that the spectrum of offending behaviour to children younger than 16 years of age embraced by the offence.

35. Count 11 occurred in T’s bedroom and was aggravated pursuant to s 21A(2)(eb) of the 1999 Act. The context in which it occurred was that T was crying because she had hurt herself. The Offender was seeking to comfort her in the bedroom before taking his penis out and moving her underwear to the side and rubbing her vagina with his penis which hurt T a lot. This offence occurred when T was between 10-12 years of age and there was a 17 year age difference with the Offender. In assessing the objective seriousness, I again bear in mind that the spectrum of offending behaviour to children under 16 years of age embraced by the offence.

36. Count 12 also occurred when the Offender was staying at T’s mother’s house. The Offender came into T’s bedroom and started kissing her nipples and face while touching her vagina and telling her that he loved her. I bear in mind the nature of the assault, the indecency involved, the age spectrum involved in the offence, the fact that the Offender and T had a 17 year age difference and at the time T was between the ages of 11-12 years of age. The offence is also aggravated pursuant to s 21A(2)(eb) of the 1999 Act by reason of it taking place at T’s home. In assessing the objective seriousness, I again bear in mind the spectrum of offending behaviour to children under 16 years of age embraced by the offence.

37. The Crown submitted that each of the Counts referred to fell within the mid-range of objective seriousness except Count 11 which fell above mid-range.

38. The Defence, following enquiry by me today, did not dispute this characterisation and I proceed accordingly.

Subjective Circumstances

Background

46. The Offender did not give evidence before me.

47. Tendered on his behalf, however, was a report of Mr Raymond Hudd, Psychologist, [7] who saw the Offender on 29 November 2019 and 22 January 2020, having been referred by Dr Petros Patroulias of Ingelburn.

    7. Exhibit 1, Report of Raymond Hudd dated 4 February 2020.

48. In his report, Mr Hudd details the Offender’s history. The Offender is a 63 year person born in Campbelltown who grew up in the Harris Park and Granville areas of New South Wales. He concluded his formal education in Year 10 and his school grades were below average, and had trouble with literacy and numeracy and spelling especially. However, Mr Hudd recorded that school had been an overall good experience. After he left school he obtained a carpentry apprenticeship, but resigned from it because he could not keep up with the demands of mathematics and the theoretical part of the trade that was required of him at TAFE.

49. He is the youngest of five children, although one of his brothers died at birth. He has a half-sister to his mother’s previous relationship.

50. His relationships with his siblings were described as “not good” and he has no contact with one of his sisters and his half-sister. He described his relationship with his father as being distant emotionally. He had little to do with his siblings growing up because he was the youngest in the family and by the time he reached adolescence, all of his siblings had left home and started their own families. He reported that from his childhood he could remember his parents constantly arguing together.

51. He has been married to his current wife for 40 years and that relationship has produced two children, a daughter aged 36 and a son aged 38.

52. His son was recorded as being in Waratah House, the psychiatric unit of Campbelltown Hospital and he has a history of mental health issues.

53. The Offender reported that since his arrest his partner cannot cope, and requires medication to get through the day and to help her sleep.

54. Since 1980 the Offender is noted to have worked for a city rail contractor in the position of signalman. He resigned from his position upon his arrest. He also described that both his nephew and brother-in-law had committed suicide, which has had a devastating impact on him. He is currently prescribed 20mg of Seroquel which he has been taking for the past two years.

Plea of guilty

55. The plea of guilty was entered on the first day the matter was listed for trial. [8] I was informed during submissions that this followed charge negotiations. No other account for the delay in the plea was raised. In R v Borkowski, Howie J stated that the reason for the delay in a plea is generally irrelevant because the utilitarian value is less. [9] No submission was advanced that were particular benefits emanating from the prospective length and complexity of any trial. In the circumstances I will allow a discount of 10% for the utilitarian value of the plea.

    8. S 22 of the 1999 Act

    9. [2009] NSWCCA 102; 195 A Crim R 1 at [32] principles 8 and 9 (Mc Clelland CJ at CL and Simpson agreeing)

Prior Records/Good Character

56. The Offender has no prior criminal history and I take that into account. [10]

    10. S 21A(3)(e) of the 1999 Act.

57. The Crown submitted that notwithstanding the offences are not included in the range of offences encapsulated by s 21A(5A) of the 1999 Act, the Offender’s prior good character should be given little weight. The Defence submitted, notwithstanding this, that some weight should be afforded to the Offender’s prior good character. Whilst I would accept that the Offender’s prior good character is to be afforded some weight, bearing in mind the time over which the various offending acts occurred this has been progressively and substantially eroded. [11]

    11. R v PGM [2008] NSWCCA 44 at [43]-[44]

Remorse

58. The Offender did not give evidence, and the report of Mr Hudd did not indicate any remorse. I accept that the Offender has accepted responsibility for his actions by pleading guilty and by doing so spared both the victims of the need to give evidence. He has apologised to both victims, as was noted in the agreed facts. I am not satisfied that the remorse shown meets the requirements in s 21A(3)(i) of the 1999 Act. Nevertheless, I bear in mind that he has accepted responsibility and the fact that he has apologised as subjective factors in his favour. [12]

    12. s 21A(1) of the 1999 Act

Prospects of rehabilitation/Likelihood of reoffending

59. Mr Hudd stated that he administered the STATIC 99 psychometric test on the Offender. The test showed that the Offender’s score was two, placing him in the category of moderate to low risk of sexual recidivism. The highest score of the scale is said to be six. Mr Hudd nevertheless noted that considering the Offender’s background, the score would more likely be one, which places him in the lowest risk category. He notes that low is the lowest possible category on this scale given that it assumes universally everyone has the potential of sexually offending. Mr Hudd further opined that he does not reach the Diagnostic and Statistical Manual of Manual Disorders 5th edition’s (DSM V) criteria of Paedophilic Disorder, nor did he find that the Offender reached the assessment criteria of paedophilia outlined by Barbaree and Seto (1997).

60. Overall I am satisfied that by reason of the Offender’s age, the time since his offending, and the findings of the STATIC-99, that the Offender does have good prospects of rehabilitation and low likelihood of reoffending.

Health

61. A report by Dr Vishal Patel records that the Offender has a medical history that includes hypertension, gastroesophageal reflux disease, Bipolar Disorder, Depression, glaucoma, skin cancer, right hand carpal tunnel surgery and industrial deafness. As at 11 December 2019, he is under investigation by Dr Patel for light headedness and dizziness which led to him being admitted to hospital on 21 March 2019. He also notes that it is likely from orthostatic hypotension, medications or due to stress/anxiety. He recorded him being on Seroquel 100 mg nocte, Pristiq 100 mg, Somac 40 mg, Temazepam 10 mg, Timoptol E/D, Aspirin 100 mg and Atacand 16 mg.

62. Mr Hudd observed that on presentation the Offender’s mood, although friendly, was anxious and at time he appeared deeply depressed. He noted that during the sessions the Offender’s mood fluctuated frequently with short fast vacillations between anxiety and depression with depression being dominant. He noted no obvious signs of psychosis present. [13]

    13. Exhibit 1 at [11].

63. Based on the history provided by the Offender, and the observations of him and the results of psychometric testing administered on him, Mr Hudd opined that the Offender’s symptoms were consistent with Post-Traumatic Stress Disorder (PTSD) and Borderline Personality Disorder (BPD).

64. Under the heading “Link between diagnosis and offending behaviour” Mr Hudd opined that the essential feature of BPD was a marked pattern of impulsivity and instability of affects, difficult in maintaining appropriate interpersonal relationships and negative self-image. He added that this pattern can be seen in early adulthood and occurs across a variety of contexts. In respect of PTSD, he noted that individuals with a childhood history of abuse were more likely to remit PTSD, which he noted that was a common comorbidity of BPD. These comments appear to be somewhat generic. There was no submission that the Offender’s moral culpability was diminished in the circumstances of this case and no evidence that the Offender had been subject to childhood abuse. Rather, I accept that the symptoms referred to were something that has been pervading him in more recent times.

65. This is supported by Mr Hudd’s report reference to the Offender’s nephew suiciding in his mid-30s by an overdose of drugs and the Offender’s brother in law hanging himself on the stairs after consuming copious amounts of bourbon. I earlier referred to Mr Hudd’s report as to the impact these events have had on the Offender.

66. Under the heading “Treatment”, Mr Hudd states that it would be unlikely that if the Offender was incarcerated he would receive the treatment he requires to overcome his psychological issues and thus change his behaviour. I do not see this proposal as referable to the Offender’s prospects of rehabilitation and likelihood of reoffending which I have earlier addressed.

67. The Defence conceded that the Offender’s physical disability was slight. However it drew attention to Mr Hudd’s evidence that indicated that it is unlikely that if he was incarcerated he would receive psychological treatment in relation to the issues he identifies.

68. The Crown argued that the evidence on the impact of incarceration on the Offender was limited and Mr Hudd had only been treating the Offender recently on two occasions such that it could not be said that a rapport had been established between them.

69. Be that as it may Mr Hudd’s report was unchallenged. To the extent the Offender will be unable to avail himself of the treatment that Mr Hudd refers I accept that this is to be taken into account as making incarceration more burdensome.

Impact on family members

70. During the course of the hearing, the Defence tendered a medical certificate from Dr Barbara Piraska in relation to the Offender’s wife dated 11 November 2019. [14] That indicated that the Offender’s wife suffered from major depression, severe anxiety disorder and chronic pain. It added that she suffered from depress mood, anxiety, poor concentration, memory problems and sleeping problems, in respect of which she received anti-depressant medication. It noted that she suffered difficulty walking, standing and shortness of breath on exertion.

    14. Exhibit 4, Medical Certificate for Jennifer Gliddon for Centrelink dated 11 December 2019.

71. The Offender’s daughter gave evidence that her brother (the Offender’s son) had been the registered carer for her mother in the past, but in November 2019 he had a mental health episode involving a physical altercation. This resulted in him being arrested and charged and he was placed in Waratah House. He has since been released and gone to live in Newcastle area. She stated that she had been taking steps to assist her mother through the National Disability Insurance Scheme. At present she indicated that her mother will have to live alone, although she will be able to assist her after she works and on the weekends. In the meantime, the Offender has been looking after her mother on a day-to-day basis. She indicated that her mother can’t walk very far and is assisted in day-to-day duties such as lawn mowing, and cannot drive.

72. Overall, whilst I have noted the impact of incarceration on the Offender’s wife, it was not submitted that these circumstances constituted exceptional circumstances. However, even if the effect on a third party does not rise to the level of “exceptional”, it can be taken into account as part of the general factual matrix in selecting an appropriate sentence, and I will proceed on this basis. [15]

    15. R v Bednarz [2000] NSWCCA 553 at [51]-[52]; Helboski v R [2006] NSWCCA 168 at [17]-[21]; Dipangkear v R [2010] NSWCCA 156 at [29], [40].

SENTENCE

73. As was submitted by both parties I accept that having considered all possible alternatives no penalty other than imprisonment was appropriate. [16]

    16. S 5(1) of the 1999 Act

Special circumstances

74. The Crown submitted that the fact that the Offender was to be placed in custody for the first time alone cannot justify a finding of special circumstances. [17] The Crown, however, also noted that there were contrary authorities which suggested that such a fact alone could constitute a finding of special circumstances. [18] However, overall the Crown submitted that there were no overriding factors in this matter that would cause the Court to make a finding of special circumstances. The Defence submitted that the finding of special circumstances should be made based on the Offender’s need for psychological treatment, his prospects and the fact that it was his first time in custody.

    17. Georgopolous v R [2010] NSWCCA 246 at [25].

    18. R v Christoff (2003) 140 A Crim R 45; R v Fidow [2004] NSWCCA 172; Wright v R [2006] NSWCCA 122.

75. The fact that this is the Offender’s first time in custody, his health needs and his good prospects of rehabilitation, in my view do justify a finding of special circumstances and a variation of the statutory ratio in s 44 of the 1999 Act.

Accumulation, Totality and Concurrency

76. When sentencing the Offender it is necessary to have regard to the individual acts that occurred, bearing in mind two victims were involved and that the offending occurred over the period described. The Crown conceded that a number of the matters had common features. In particular, care is necessary to avoid double counting the criminality in Counts 5 and 7.

77. It is appropriate in the circumstances that there be some concurrency and accumulation but also an application of the principles of ‘totality’. [19]

    19. R v Holder [1983] 3 NSWLR 245, cited in Mill v The Queen (1988) 166 CLR 59.

Section 25AA

78. It was not in issue that s 25AA of the 1999 Act applied to the offences in question. Specifically, I am required to sentence the Offender in accordance with the sentencing patterns and practices at the time of sentence, not at the time of the offending. [20] Further I am required to have regard to the trauma of sexual abuse for a child sexual offence as understood at the time of sentencing not at the time of the offending. [21]

    20. s 25AA(1) of the 1999 Act.

    21. s 25AA(3) of the 1999 Act.

79. These acts involved an appalling exploitation of the youth of two young relatives who were powerless to resist.

80. In sentencing the Offender, I have regard to the sentencing purposes in s 3A of the 1999 Act.

81. In sentencing the Offender I acknowledge that he needs to be punished, made accountable for his actions, and his conduct be denounced. The sentence needs to provide for general deterrence despite the offender’s age and circumstances. [22] I am satisfied that there is no particular need to protect the community from the Offender and the circumstances do not call for any emphasis on specific deterrence. The need for the sentence to promote rehabilitation is also to be addressed in the way I have outlined. Finally the harm to the victims must be recognised in the sentence to be imposed.

    22. MC v R [2017] NSWCCA 316 per Hamill J at [57] (Simpson JA and Rothman J agreeing)

82. I propose to proceed by way of an aggregate sentence pursuant to s 53A of the 1999 Act.

Commencement of Sentence

83. I will commence the sentence from 13 February 2020 taking into account presentence custody on 6 September 2017 in addition to the period from 14 February 2020 to date.

SENTENCE

84. The Offender is convicted of each of the Counts.

85. Pursuant to s 53A(2)(b) of the 1999 Act. I record the following indicative sentences had separate sentences be imposed instead of an aggregate sentence. In doing so I take into account the Offender discount (10%) for the plea of guilty:

1. Count 1: 16 months

2. Count 2: 14 months

3. Count 3: 7 months

4. Count 4: 7 months

5. Count 5: 7 months

6. Count 6: 16 months

7. Count 7: 7 months

8. Count 8: 13 months

9. Count 9: 13 months

10. Count 10: 13 months

11. Count 11: 2 years and one month

12. Count 12: 12 months

86. Overall I would impose an aggregate sentence of six years imprisonment comprising:

1. a non-parole period of 3 years and eight months commencing on 13 February 2020 and expiring on 12 October 2023.

2. an additional period of 2 years and four months imprisonment from 13 October 2023 to 12 February 2026 during which he shall be eligible to be released to parole.

87. The earliest possible release date shall be 12 October 2023.

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Endnotes

Decision last updated: 16 April 2020