R v Charlton

[2024] NSWDC 633

District Court

New South Wales

Medium Neutral Citation:

R v Charlton [2024] NSWDC 633

Hearing dates:

19 February 2024, 23 August 2024

Decision date:

28 August 2024

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Indicative sentences:

21 counts - see attached Table of Charges

Aggregate Sentence:

Convicted. Sentenced to a total term of 16 years, comprising a non-parole period of 12 years commencing on 20 December 2021, first eligible for parole on 19 December 2033, and a balance of term of 4 years expiring on 19 December 2037

No special circumstances found.

Catchwords:

CRIME – Sentencing – sexual offending against 7 victims under 10 years old –- 9 separate incidents spread over 23 years from May 1995 to January 2019 – uncharged acts – objective seriousness of offences - aggravating factors - breaches of trust – offences in home of victim - victims under authority - subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Chiro v R HCA 37

DPP v Burton [2020] NSWCCA 54

Kennedy v R [2022] NSWCCA 215

RvLulham [2016] NSWCCA 287

R v Way [2004] NSWCCA 131

Category:

Sentence

Parties:

Regina
Charlton, Peter William

Representation:

Counsel:
Defence: Mr B Murray

Solicitors:
Crown: Ms A Mifsud ODPP
Ms R Atkinson/Mr B Williams-Styles ODPP
Defence: Mr J Wallace Ramsland Laidler

File Number(s):

2022/00360702; 2022/00360722

Publication restriction:

NPO in respect of the names of the complainants and anything that might tend to identify them.

JUDGMENT

1. HIS HONOUR: Peter Charlton stood trial on 9 October 2023 in respect of an indictment containing 23 counts, two of those counts being alternatives to primary counts on the indictment. On 2 November 2023, he was convicted in respect of each of the counts including the two primary counts, and accordingly, there was no need for the jury to return a verdict in respect of the two alternative counts. In short, he was convicted in respect of Counts 1 to 17, 19, 20 and 21.

2. The counts were in relation to seven separate victims, and there were nine separate incidents or occasions over which the offending occurred between 12 May 1995 and 11 January 2019, that being a period of approximately 23 and a half years. The offender was approximately 36 years of age at the commencement of the offending and approximately 61 at the conclusion of it. He is now some 66 years of age.

3. The offender was known to the families of each victim, and all seven victims were under the age of ten years at the time of the offending.

4. The offender has been remanded in custody since his arrest on 20 December 2021 solely in respect of these matters, that being a period of approximately two years and eight or nine months. The offender is not entitled to any discount for the utility of a plea as there was no plea of guilty, all counts being defended. There is no dispute between the parties as to the appropriate facts that the Court should find from the evidence before the jury.

BACKGROUND

1. The victims were all known to the offender as follows:

• Counts 1 to 14, JY, the daughter of the offender.

• Counts 15 to 17, DV and LV, who came to know the offender through the Samaritan Charity where the offender assisted the family by mowing their lawn and became friends with their mother.

• Counts 19, 20, 21 and 23, the J children, DJ, MJ, AJ and CJ, came to know the offender because he lived on their family farm outside Narrabri. The J family had known the offender for a long time because the offender’s sister Brenda was married to their father’s brother. The J children knew him as “Uncle Peter” and treated him as a family member.

2. The offender was born on 13 November 1957. He partnered with MK and had JC, a male, born June 1983. They married two years after they had JY, who was born June 1989. When the Charlton children were growing up, the family lived in [X] Street, Swansea, until JY was about six weeks old, when the family moved elsewhere in Swansea (the family home).

3. The offender moved out of the family home when JY was between two and three years of age. The offender and Ms MK separated in August 1989. The custody arrangements were settled by way of a Family Court order and the offender had visits with JY and JC, her brother, every second Sunday from 10am to 4pm. Some of the visits occurred at the offender’s home at Marks Point, and sometimes the visits occurred at the offender’s parents’ home.

OFFENDING AGAINST JY BETWEEN 12 MAY 1994 AND 1 JANUARY 1995

RELATIONSHIP LEADING UP TO THE OFFENDING

4. JY was aged between six and seven at the time of the offending. JY recalls incidents of domestic violence between her parents when growing up. JY described the offender as a big man, and she was frightened of him as a child. JY remembers the offender used to sing the song, “If I had words” to her and JC in the car. He would also sing the song if he was putting her down for a nap at her nan and pop’s house. As JY fell asleep, the offender would be sitting next to her bed, stroking her from her head down her body repeatedly.

5. On 13 May 1994, when JY was six years old, the offender moved alone to a one-bedroom unit in Marks Point. The access visits with the offender continued every second Sunday between 10am and 4pm at his unit. The offender was not working at the time.

6. In 1993 -1994, when JY was six or seven and in Year 1 or 2 at public school, there was a Father’s Day activity at school, as there was every year. JY made the offender a pink love heart with a photo of her in the middle and an imprint of lips on the cardboard. There was also a poem and message on the heart. The offender put the heart on the glass window in his room.

7. When JY and JC visited the offender at Marks Point, they would often stop at a video shop on Marks Point Road, not far from the offender’s house. The children would choose videos, get takeaway food for lunch and go back to the offender’s unit. They would watch JY’s video while they were at lunch. After lunch, either the offender or JC would put on one of JC’s videos and he would start watching. Either the offender would tell JY to go to his room for a lie down, or JY would choose to do so because she did not want to watch JC’s video.

UNCHARGED ACTS

Evidence was given before the Court by JY which was only relevant to context and to demonstrate that the offending was not out of the blue or isolated.

8. Sometime between 1993 and 1994, an incident occurred at the offender’s unit during an access visit. It was after Father’s Day, because JY recalled that the heart was on the glass window in the offender’s bedroom. JY went to the offender’s room, and he was lying on the bed, on the side of the bed closest to the wall. JY sat on the bed and talked to her father, then she lay down next to him on her right side while they continued talking.

9. The offender started to sing “If I had words” and rubbed JY from her hair and down the left side of her body to her hips, on the outside of her clothes. Eventually this stopped, and JY left the room as she felt uneasy about what had happened.

10. JY recalls the offender did the same thing to her about five or six times while in the same year at school.

THE OFFENDING - COUNTS 1 TO 4

11. JY went to the offender’s bedroom, where he was lying on the side of the bed closest to the wall. The offender told her to have a sleep because she was moody. JY lay on the bed, on her back and the offender started to sing, “If I had words.”

12. The offender rubbed from JY’s head down over her left breast, down to her undies (Count 1, indecent assault - s 61M(2)). She turned her head to look towards the heart on the window. The offender moved his hand down to her undies and slowly put his hand underneath her undies onto the top of her genitals - skin on skin (Count 2, indecent assault - s 61M(2)). The offender then removed his hand and put it back to the top of JY’s head and rubbed her again downwards over her left breast (Count 3, indecent assault - s 61M(2)) back to a position under her undies, this time moving his hand a bit lower onto her genitalia. (The victim used the words “pubic area” during her evidence), (Count 4, indecent assault - s 61M(2)). The offender continued to repeat this motion and each time his hand would go onto her genitalia.

13. JY recalled that she knew that it was wrong for her father to touch her on the genitals like this, but that she was very confused about what was happening to her and did not tell anyone at the time.

THE OFFENDING - COUNTS 5 TO 8

14. Another incident occurred on JY’s next access visit to the offender’s unit. It was still 1993 or 1994, when she was in Year 1 or 2 at public school and aged between six and seven. JY and JC went to the offender’s unit for an access visit. On the way, the offender took them to the video shop and then the takeaway shop to buy lunch. They ate lunch at the unit and then JC started watching one of his videos. The offender told JY to go to his room. She did not want to go to his room but did so. The offender was lying on the bed, on the side closest to the wall. He told her to climb up on the bed. She did so and lay on her back on the bed. The offender started to sing “If I had words.”

15. The accused started to rub JY from her head down over her left breast (Count 5, indecent assault - s 61M(2)) to her underpants. JY turned her head to look at the heart on the window. The accused moved his hand to JY’s undies and slowly put his hand underneath her undies onto the top of her genitals (Count 6, indecent assault - s 61M(2)). The accused then removed his hand from her undies and put it back to the top of her head and rubbed her again downwards over her left breast (Count 7, indecent assault - s 61M(2)). He continued to rub down her body to a position under her undies and this time he moved his hand lower onto her genitals (Count 8, indecent assault - s 61M(2)). He continued to rub his hand from JY’s head down her body and over her left breast and into her undies. Each time his hand went a bit lower and onto her genitalia. JY felt confused again because she did not know why this was happening to her.

THE OFFENDING - COUNTS 9 TO 14

16. The next incident occurred on the access visit JY made to the accused a fortnight later. The accused picked JY and JC up from his parents’ house. It was during the warmer months of the year. The accused first drove JY and JC to Caves Beach and the parkland to the right of the presently existing hotel. JC and JY had kites with them, and they flew them in the parkland for about 30 to 40 minutes.

17. They then went to the video and takeaway shops as usual and then back to the offender’s unit. JC started to watch a video after lunch. The offender said to JY that she needed to go to bed, and he went and set up the bed in his bedroom.

18. Shortly afterwards, JY went into the offender’s room. He was lying on his side with his back to the wall. He patted the bed next to him and said to jump up onto the bed. JY got onto and into the bed and lay on her righthand side with her back to the offender. The offender took hold of JY’s left arm with his left arm and rolled her back towards him so that she was lying on her back. The offender then put his left arm over JY’s body around her stomach.

19. The offender then took his left hand away from the victim’s stomach and started to rub her from her head downwards over her left breast to her undies (Count 9, indecent assault - s 61M(2)). The offender then put his left hand inside JY’s underwear onto her genitalia (Count 10, indecent assault - s 61M(2)). He did this a few more times.

20. The offender again rubbed his hand from her head downwards over her left breast to her underwear (Count 11, indecent assault - s 61M(2)). The offender then inserted his finger into JY’s genitalia (Count 12, sexual intercourse child under ten - s 66A). JY felt sick and pretended to be asleep and acted like she was snoring so the accused would stop. JY was sore, and the accused was still singing the song as his finger was inside her genitalia. He left his finger in her genitalia for a short time, then he removed his hand and started to rub JY from her head downwards again.

21. The offender once again rubbed JY’s body over her breast (Count 13, indecent assault - s 61M(2)). He then put his hand inside JY’s underwear and again inserted a finger inside her genitalia. (The victim described the offender putting his finger in her vaginal opening), (Count 14, sexual intercourse child under ten - s 66A). JY was still pretending to be asleep. The digital penetration caused her pain. The offender then suddenly removed his finger from her genitalia, then his hand from her underwear. He climbed across JY and got off the bed and walked from the room.

22. JY lay there until it was time to go home. She was crying while she lay on the bed. The offender drove her and JC home later that day. JY felt confused, scared and hurt.

23. JY did not want to go back to the offender’s unit, so she told her mother she was sick for the next few weekends. The following year, JC and JY started going back to the offender’s house at Marks Point under the same access conditions; that is every second Sunday, 10am to 4pm. The offender stopped taking the victim to his bedroom.

COMPLAINT

24. JY and JS were friends from about Year 3 or 4 at primary school (1995 or 1996). Sometime during their school years, the victim had told JS that the offender had “touched her vagina.” Years later, as an adult, around 2011 to 2012, while JS was cutting the hair of JY’s daughter, the victim expressed her concern about living so close to the offender after he had touched her as a child.

25. JY and CH were friends from about Year 3 at primary school. When they were in their early 20s, JY and CH were in the car eating dinner at Newcastle Foreshore. JY told CH that she had been abused by her dad. In late 2021 or early 2022, JY called CH and told her she had spoken to police about the offender, and that, “It’s not every day you want to tell anyone your father has put his hands down your pants and fingered you.”

26. In about 2017, JY was in a relationship with Tyson Griffiths. JY was talking to him about the offender, and during the conversation, she told him her dad “used to touch me and sexually assault me when he would take me to the room.”

27. In evidence, JY was asked why she did not tell her mother, and said:

“Because I was scared. I didn’t want my mum to blame herself. At the start I was always raised that the only people that could touch you in those places was your mum, your dad and a doctor, so at the start like I just thought that was what was happening. He was my dad. I was supposed to be able to trust him and as time got on, I didn’t want my mum, when I got older, to realise how bad it was. I didn’t really want my mum to blame herself because she wasn’t - she hadn’t done anything wrong.”

OFFENDING AGAINST DV BETWEEN 4 APRIL 2007 AND 11 OCTOBER 2007

RELATIONSHIP LEADING UP TO THE OFFENDING

28. The V family included the following people: MV, DOB October 1976, who had twin daughters, JV and CV, DOB June 1995. MV subsequently commenced a relationship with MM. They had six children together, two of whom are victims:

1. DV, DOB April 1998.

2. LV, DOB October 2002.

29. MM was often absent from the family home, leaving MV to raise the children. MV had a mild intellectual disability and largely left the children responsible for the housework, their own cooking and cleaning, and getting themselves ready for school. MV and MM would also often physically and mentally assault the children. Family and Community Services, the Samaritans and other organisations became involved with the family as a result.

30. DV recalled that his family moved to Windale when DV was approximately one or two years of age (1999 to 2001). They were still living in Windale in 2007, when DV was eight years of age. In 2007, DV was in Year 3 at public school. That year he was eight and turned nine in April 2007. His father left shortly after Dominic’s ninth birthday in April 2007. Not long after MM stopped living with the family, the offender began to mow the lawns at the V family home. This was an arrangement that had been made by the Samaritans charity because MM was no longer around to mow the lawns.

31. The first couple of times, the offender came with another person, and after that he came to mow the lawns on his own. Over time, he became friendly with MV and started to get to know the children. After a few weeks, the offender started to visit when he was not mowing the lawns and would do so a couple of times a week. The offender had a black kelpie dog called “Fox,” who he would bring to the house and tie up on the front veranda when visiting.

32. The offender would sometimes come to visit in the evenings or on weekends. He would sometimes stay for a meal with the family and sometimes stay overnight. When he stayed overnight, his dog would be kept in the backyard with the V family dog. The offender would talk to the children and watch TV with the family and generally be in the company of the family. The children trusted the offender because their mother had trusted him, and they opened up about their lives to him.

33. LV remembers the offender as a family friend when he started to come around to the house. It is LV’s recollection that she was attending a preschool in Windale, and a preschool inside the public school at this time. The offender would sometimes pick up LV from school.

THE OFFENDING - COUNTS 15 AND 16

34. Shortly after DV’s eighth birthday, the offender asked DV to go into MV’s room with the offender. DV went with the offender. The offender closed the door and said to DV to come to the bed. The offender walked to the bed and got onto the bed and lay on his back. DV walked to the other side of the bed and got onto the bed beside the offender and lay on his back. Both were still clothed at this time. DV gave evidence:

“Once we were in the bed together, laying on our backs, Peter grabbed my hand, I don’t remember which hand, and grabbed my hand and put it on top of his pants to touch his penis. Peter then pulled his pants down. I don’t remember if it was all of his pants or if he was just...or if he was wearing underwear and then dragged my hand to then touch his penis, skin on skin.”

The offender took hold of DV’s hand and moved it to stroke the offender’s penis on the outside of his clothes. The offender removed his pants, and at one stage DV’s hand was on the skin of the offender’s penis (Count 15, indecent assault, person under ten - s 61M(2)).

35. The offender then rolled onto his side and held DV down with the offender’s weight, “with excessive force, and touched his (the offender’s) hand with my penis and stroked it”. DV was still on his back. DV gave evidence that “he (the offender) made me stroke his penis, and then he stroked my penis” and “I remember it lasting for about an hour.” DV left the room and returned to the living room (Count 16, indecent assault person under ten - s 61M(2)). DV did not tell anyone what had happened.

UNCHARGED ACTS, FACTS RELATING ONLY TO CONTEXT

The relationship between the Victim and DV relevant to DV being under the authority of the offender as a parental figure.

36. Another incident occurred in relation to DV in the same period, when DV was eight years old. DV is unsure whether this happened before or after the incident where the offender masturbated him. On this occasion, the offender took DV into the bathroom. Both the offender and DV were clothed when they entered the bathroom. The offender then closed the door and locked it with a sliding bolt lock. The bath had been run earlier. The offender forcibly removed all of DV’s clothes, leaving him naked, and picked him up and threw him into the bath. The offender then stood and watched DV in the bath until he got out. The offender then helped DV to dry himself with the bath towel. DV did not tell anyone about this incident.

37. The offender would regularly ask DV if the offender could bathe or shower with him. DV told the offender that this was not going to happen.

38. NV, DV’s brother, recalls that at nighttime when the offender was at the house, the offender would say “Who needs a bath?” The offender would grab DV and start pulling his clothes off in the lounge room. Once DV was naked, the offender would pick him up and throw him into the bath.

39. On a particular day on a weekend during daylight hours, the offender, MV, NV and DV were all home. DV and NV had been misbehaving and were hiding in their room. DV and NV then got out through their window and went to the bush for a while. When they returned to the house and climbed back in through the bedroom window, the offender opened the bedroom door and entered. He was alone. He put one arm around each boy’s neck and applied pressure. The boys were moving around, trying to move away. The offender was yelling about how they had made their mother worried, and no-one knew where they had gone. The offender then dragged the boys into MV’s bedroom to the bed. He then held the boys down on the bed with his weight. He had a hand around each boy’s neck and was applying pressure to hold them down while he knelt on the bed. DV got away and ran from the room and then the offender released NV, who also ran from the room.

40. On another occasion during the same period, NV and DV were both present, and had again been misbehaving. When this happened, and the offender was at the house, the offender would pull each boys pants and undies down and smack each of them numerous times on their bare bottoms.

COMPLAINT BY DV

41. DV recalls that he made a general complaint to Michael Fair, an adolescent worker with FACS. NV recalls that in about 2018, he had a conversation with him about making a report to Victim Services and police about the offender trying to get into bed with him.

42. In evidence, DV was asked why he did not tell his mother straight away. He said:

“I didn’t feel that what was done to me was wrong because I trusted Peter through mum. I trusted mum and I trusted Peter and so whatever Peter did to me, I trusted that - you know? It wasn’t anything bad that he was doing because I didn’t know any better, as I was eight. As I grew up and went through school and made a statement with the police, I, you know, realised that, you know, that is something that Peter did that, you know, wasn’t appropriate and was, you know, sexualised behaviour that I hadn’t talked to anyone with before.”

OFFENDING AGAINST LV BETWEEN 4 APRIL 2007 AND 11 OCTOBER 2007

43. On one occasion when the offender was visiting the V’s, LV was sitting in the loungeroom when the offender walked with LV from the loungeroom into her bedroom, which at that time was the small first bedroom on the left side of the hallway. A single bed with a wooden frame was on the left side of the room.

44. LV entered first, and the offender closed the bedroom door behind him. The offender and LV both sat on LV’s single bed. The offender sat closest to the bedroom door with his right foot on the floor and his left leg bent up on the bed. LV sat around the middle of the bed.

45. The offender was talking to LV, but she does not remember his words. The offender pulled LV closer to him and grabbed both of her wrists. The offender pulled his penis out from the top of his pants (Count 17, indecent assault person under 10 - S61M(2)). LV remembers that either her mother or one of her sisters entered the bedroom at that time and said words to the offender which resulted in the offender leaving the room.

COMPLAINT BY LV

46. Around March 2019, LV moved in with her father, MM, and not long after, she told her father what had happened with the offender.

OFFENDING AGAINST THE J CHILDREN

BACKGROUND RELATING TO THE RELATIONSHIP BETWEEN THE OFFENDER AND THE J FAMILY LEADING UP TO THE OFFENDING

[The uncharged acts referred to in the following were used in the trial only as context evidence, and are, as one would anticipate, not to be the subject of sentence. Some relate to the offender normalising sexual language to assist in committing the offending conduct.]

47. LT and PJ have eight children and four of the children are victims in these proceedings. DJ, DOB July 1997; MJ, DOB February 2008; CJ, DOB January 2010; and AJ, DOB August 2012.

48. The offender’s sister was married to JP’s brother. The J family had known the offender for a long time and the children knew him affectionately as “Uncle Peter.” The family was living at Jack’s Creek, Narrabri, on a property. This was a 100-acre property with a three-to-four-bedroom house. The offender started to stay there in around 2006 to 2007, and during that time lived in at least two different caravans.

49. After some time, PJ gave the offender another caravan to live in, a bigger one which had previously been kept at the back of the house. There was a table and chairs at the front of the caravan and a double bed up the back where the offender slept and watched TV from. The television was clearly visible from the bed, so a person would sit on the bed to watch the television. The offender began living fulltime at the property around 2008.

50. Initially, the offender would provide some assistance to the J family when he came to stay because PJ was often away for work and his partner did not have a driver’s licence. The offender would also drive her and the kids to town or the hospital if needed. He would also drive the kids to and from the bus stop which was some 16 kilometres down the highway.

51. When the offender was staying on the property, PJ’s partner saw the offender every day. Each day, he would get the kids up for school and then the offender would come into the house. He would get breakfast and then drive the kids to the bus stop. Afterwards he would spend time in his caravan watching TV. When it was time to pick the kids up, he would go down to the bus stop. After the kids got home, the offender would have a shower in the house as there was no shower in the caravan. He would then usually have dinner with the J family before he went back to his caravan to sleep. The offender would also help PJ around the property and would sometimes get firewood. Over time, the assistance provided by the offender reduced.

52. The offender would go into the caravan with the girls, and they would watch children’s DVDs together. This started when CJ was about two years old. CJ turned two in January 2012. When AJ was old enough, she and CJ would go and watch DVDs in the offender’s caravan. DJ recalls that at the earlier times, he would see CJ and AJ go into the offender’s caravan almost daily. Sometimes they went together and sometimes separately. When they watched movies with the offender, sometimes the door would be open and sometimes closed. There were times when DJ found the door locked when the girls were in the caravan with the offender.

53. NJ recalls that the offender used to say inappropriate sexual things. The offender told NJ that he had gotten a tattoo of a chain around one of his wrists because that was how far he was able to get his hand “up a woman’s vagina and he (the offender) said that’s how far he got it, so he got a tattoo there.” The offender also told NJ that he had got a tattoo of an open eye on his forehead so that when he was performing cunnilingus on a woman, he could watch her.

54. DJ also recalls that the offender had a chain link tattoo on his left wrist. DJ recalls that the offender told DJ the tattoo was there to show how far up inside a woman his hand had been.

55. NJ recalls that sometimes, when he walked into the offender’s caravan, the offender was watching pornographic videos. NJ remembered that on several occasions, MJ, CJ and AJ were present in the offender’s caravan when he was watching these videos. NJ specifically recalled an incident when he was in primary school living in his own caravan, which he started doing when he was nine or ten years of age. NJ turned nine in 2011. CJ was about six or seven years old (CJ turned six in January 2016), and AJ was three or four years old (AJ turned three in August 2015).

56. NJ was sitting in his own caravan at about 4.30pm. He could hear sex noises and female moaning sounds. NJ went to the offender’s caravan which was parked not far from NJ’s. NJ knocked on the door then stuck his head in. He saw the offender lying on the bed in between CJ and AJ who were sitting up fully clothed. NJ saw that on the television two women were engaged in sexual activity together. NJ shut the door and went back to his own caravan.

OFFENDING AGAINST DJ BETWEEN 24 MAY 2006 AND 1 JANUARY 2010

THE OFFENDING - COUNT 19

57. This incident occurred when DJ was in primary school (DJ turned 5 in July 2002). It was within the first 12 months of the offender being regularly at the property. WJ had not yet been born (DOB in June 2017) and DJ believes AJ was not yet born either (DOB in August 2012). DJ believes NJ was no older than five years old. (NJ turned five in April 2007).

58. Around the same time as the offender told DJ about the significance of his wrist tattoo, DJ recalls the offender had a camcorder. It was silver with a black strap and a navy-blue fabric case. He showed DJ pornographic material on its foldout screen and said to him, “Here, have a look at this.” The offender had made the video himself. “It was of a woman laying on the bed naked.” “It was sexual...the position in which she was laying on the bed.” DJ gave evidence that he saw her “face, breast” and “I remember seeing the pinkness between the legs which was pretty obvious to see because the colouration of her skin made it quite obvious to see the pink bits between her legs.” The offender did tell DJ who the lady was, but DJ could no longer remember. (Count 19 - commit act of indecency with a victim under 16 - s 61N(1)).

OFFENDING AGAINST MJ BETWEEN 1 JANUARY 2013 AND 5 FEBRUARY 2018

THE OFFENDING - COUNT 20

59. MJ recalls an occasion when he got home from school and went inside for a while then he and CJ went to the offender’s caravan. MJ and CJ started watching a movie in the offender’s caravan with the offender. CJ was at the front of the caravan sitting on a chair watching the television.

60. MJ and the offender were sitting on the bed together. The bed was along the back wall of the caravan sideways to the television. The offender sat on the bed closest to the back wall of the caravan with his legs stretched out lengthways on the bed toward the side wall of the caravan. MJ also sat on the bed with his legs in the same direction. MJ sat closer to the front of the caravan and to the television.

61. The offender put his hand inside MJ’s pants and started touching MJ’s penis. The offender was moving his hand up and down for a few minutes (Count 20 aggravated indecent assault person under 16 s 61M(2)). Then MJ said to the offender that he needed to go to the toilet, so he left and did not go back. He left CJ in the caravan with the offender.

OFFENDING AGAINST AJ BETWEEN 26 AUGUST 2015 AND 27 AUGUST 2017

THE OFFENDING - COUNT 21:

62. On an unknown date when AJ was three or four years old (AJ turned three in August 2015), AJ was in the offender’s caravan on the Jones’ family property. They were watching television. AJ was wearing shorts and a shirt. The offender placed his hand inside AJ’s underwear and digitally penetrated her genitalia (which she described as “the rude part” and drew on a diagram, writing “toch (sic) the inside of my vigina” (sic) on 13/11/19). His fingers were moving when they touched her. AJ said “stop” and the offender said that he would never stop. The offender did not stop touching AJ and she was scared (Count 21 sexual intercourse child under 10 s 66A(1)). Then the offender went for a drink. The offender told AJ that if she told anyone he would smack her. She did not say anything in response. AJ said this happened every day until she got into school.

OFFENDING AGAINST CJ BETWEEN 10 JANUARY 2017 AND 11 JANUARY 2018

THE OFFENDING - COUNT 23:

63. The incident occurred when CJ was seven years old. CJ turned seven in January 2017. CJ was in the offender’s caravan and only CJ and the offender were present. CJ was sitting on the floor. The offender used his finger to touch CJ on the outside of her genitalia (Count 23 indecent assault s 61M(2)). CJ said “No,” but the offender did it anyway. Then the J kids threw rocks at the caravan. The offender stopped and yelled at them, and CJ ran away.

COMPLAINT BY AJ AND OR CJ TO SIBLINGS AND THEN TO PJ

64. It was AJ’s recollection that when she was six years of age, she was in the pool with her brothers NJ and MJ (she turned six in August 2018). She told them that she was sad and then she told them that “Uncle Pete” touched her on the “rude part.”

[I note when I previously referred to AJ as describing some of the conduct as occurring every day, the offender is only being sentenced for the count that is on the indictment, and any other uncharged acts cannot be the subject of sentence, and the Crown does not rely on the words ‘every day’ as indicating this in fact happened every day.]

65. NJ recalls AJ and CJ coming up to him and AJ saying something about the offender touching her private parts. NJ then asked CJ “Did he do that to you too?” and CJ said “Yes”. NJ told them to go and tell their father immediately. He also asked, “Why didn’t you say something before?” AJ said, “Fat Pete said he was going to hurt us.”

66. MJ remembers an occasion when he was in the big pool with CJ at the property and CJ telling him that the offender put his hands in her pants. He told her to tell their father. AJ’s father was inside when this happened. AJ went inside and told her dad that “Uncle Pete” touched her on the “rude part.”

COMPLAINT BY MJ TO KB

67. In April 2023 MJ was talking to KB who was the girlfriend of NJ. They were at the property. MJ said, “(KB) can I speak to you about something?” KB replied, “You can speak to me about something mate, what’s wrong?” MJ said, “I don’t want to go to Newcastle.” (The victims were due to attend at Newcastle in relation to this mater.) KB asked “Why?” and MJ replied, “What happened to AJ and CJ also happened to me.” He said that he had not said anything to anyone else as he felt nobody would listen.

ARREST

68. On 20 December 2021 Detective Senior Constable Gallagher became aware that Belmont Police had arrested the offender. Detective Gallagher attended Belmont Police Station and spoke to the offender, and he was arrested and taken into custody.

OBJECTIVE SERIOUSNESS OF THE INDIVIDUAL OFFENCES

5. In R v Way the Court of Criminal Appeal said that the maximum penalty prescribed by the statute creating the offence can be viewed as an expression of the legislative intention or a reflection of the public perception of the seriousness of the crime through the legislative process. Regardless of whether the case falls within the worse category, the maximum penalty is always relevant in determining the appropriate sentence as is any standard non-parole period that has been provided.

6. I will set out the objective seriousness of each of the offences with a short summary of the conduct.

JY INCIDENT 1: which was described in the trial as the “moody sleep incident” between 12 May 1994 and 1 January 1995

Count 1: Indecent Assault – Victim under 10

7. At the offender’s house in Marks Point the victim was in the offender’s bedroom. The offender rubbed the victim from her head down over her left breast and towards her underwear. In my view this falls at the lower end of objective seriousness.

Count 2:- Indecent Assault - Victim under 10

8. The offender put his hand underneath the victim’s underwear onto the top of her genitalia, skin on skin. At the lower end but more serious than Count 1.

Count 3:- Indecent Assault – Victim under 10

9. The offender again moved his hand down the victim’s body and over her left breast. The lower end of objective seriousness.

Count 4 – Indecent Assault – Victim under 10

10. The offender again moved his hand under the victim’s underwear, lower onto her genitalia, skin on skin on her pubic bone. Mid-range objective seriousness.

11. I find that Counts 1, 2 and 3 fall below the mid-range and Count 4 at the mid-range for offences of this kind. Count 4 is more objectively serious, given that the offender rubbed the victim’s genitalia skin on skin as opposed to on top of her clothing and was very close to the opening of the victim’s genitalia. The victim was the daughter of the offender, and she trusted him and whilst not at the lowest age range for this offence, it is certainly not at the upper most age of just under ten, she being six or seven at the time of the offending.

12. Applying Chiro v R HCA 37, it is acknowledged that in circumstances where the Crown cannot prove beyond reasonable doubt that JY was six or seven, the facts most favourable to the offender would mean the victim should be taken as having been seven for the purposes of sentencing. The offender was aged 36 or 37 years of age at the time of the offending, so there was a significant age gap between the victim and the offender of approximately 30 years.

13. The victim was clearly distressed and confused by the incident and she demonstrated compliance and submission which is typical of a child of that age in the dynamic of a parental relationship. This offending occurred in the context of the offender previously stroking the victim in a similar way on top of her clothing, not around her genitalia though, whilst singing the song “If I had words” to normalise the conduct with the victim leading up to this incident and placing the victim in a false sense of security and safety with the offender alone in his room. This explains why the victim did not call out to alert her brother who was in the lounge room next to the bedroom or tell anyone about what had happened.

14. While each count constitutes its own offending, and a discrete penalty must be imposed, the offending in respect of these counts was over the course of one single period of conduct which would entitle the offender to have the sentences made largely concurrent to each other for this incident. There are relevant aggravating factors for Counts 1 to 4:

s 21A(2)(eb) - In the home of the victim.

15. JY visited the offender’s home on access visits as part of a shared custody arrangement. She was entitled to have a reasonable expectation of safety, security and protection with her father in his home, which was in effect also her home on access visits.

s 21A(1)(k) - Breach of trust/authority

16. The relationship was of father and daughter in this particular instance and the offender was in a position of care and had an obligation to protect JY as a seven-year-old child. - the aggravating factor is made out.

17. It is not simply the case that the victim trusted the offender for some other reason, as referred to in DPP v Burton [2020] NSWCCA 54 at 30-31. It is the case that JY by her own evidence stated she trusted her father and there was a breach of that trust by the offending. Further to this, there was also a breach of authority. The offender used his position as a father and the custody arrangements where the victim was removed from her mother to commit the offending. There was in effect both a breach of trust and authority and under authority is not an element of the charge, so it can be taken into account.

JY INCIDENT 2: THE NEXT ACCESS VISIT BETWEEN 12 MAY 1994 AND 1 JANUARY 1995

Counts 5, 6, 7 and 8: each being Indecent Assault – Victim under 10

18. Count 5, the offender rubbed his hand down the victim’s body, over her left breast to her underwear. I find this is at the lower end of the range of objective seriousness.

Count 6, the offender put his hand under the victim’s underwear onto the top of her vagina, skin on skin. I find this is in the mid-range of objective seriousness.

Count 7, the offender again rubbed the victim from her head down to her underwear over her left breast. I again find that this is at the lower end of objective seriousness.

Count 8, the offender again placed his hand under the victim’s underwear, lower onto her genitalia, skin on skin and on top of her pubic bone. Again, I find this is in the mid-range of objective seriousness.

Counts 6 and 8 are at the mid-range for offences of this kind for the same reasons as given in respect for Counts 1 to 4.

AGGRAVATING FACTORS COUNTS 5 TO 8

19. Again, s 21A(2)(eb) in the home of the victim applies and s 21A(2)(k) breach of trust and/or authority also applies.

20. There was more planning involved for this offending. Counts 1 to 4 having already been committed and the uncharged conduct previously referred to leading up to Counts 1 to 4. However, that is not to the degree where it can be found that s 21(2)(n) applies. However, the lack of planning in this context of father/daughter in a domestic setting is of negligible, if any, significance as it is typical that this offending is more opportunistic in nature and not premeditated. Kennedy v R [2022] NSWCCA 215 at 49 and 52.

JY INCIDENT 3: THE KITE INCIDENT BETWEEN 12 MAY 1994 AND 1 JANUARY 1995 - COUNTS 9 TO 14

Count 9: Indecent Assault – Victim under 10

21. The offender rubbed the victim from her head down across her left breast to her underwear. I find this is at the lower end of objective seriousness.

Count 10: Indecent Assault - Victim under 10

22. The offender put his hand inside the victim’s underwear onto her genitalia, skin on skin. I find this is midrange.

Count 11: Indecent Assault - Victim under 10

23. The offender, again, rubbed the victim from her head down across her left breast to her underwear. I find this is at the lower end of objective seriousness.

Count 12: Sexual Intercourse – Victim under 10

24. The offender digitally penetrated the victim’s genitalia. I find this is a midrange offence for an offence of this type.

Count 13: Indecent Assault – Victim under 10

25. The offender again rubbed his hand from the victim’s head down across her left breast. I find this is at the lower end of objective seriousness.

Count 14: Sexual Intercourse – Victim under 10

26. The offender again digitally penetrated the victim’s genitalia. I find this is in the midrange of objective seriousness for an offence of this type.

27. For the same reasons as expressed in respect of the previous counts, the sexual touching in respect of Counts 1, 11 and 13 falls towards the lower end of objective seriousness. However, in respect of the third incident there were two similar incidents of sexual touching which then escalated to penetration by the third incident.

28. I accept that these counts are slightly more objectively serious as the offending became less opportunistic and more planned. That is, the offender knew that the victim had not disclosed his prior activity and was successful in his previous sexual touching of the victim and accordingly, continued. The uncharged acts referred to cannot operate to increase punishment of the offender in any way, but the Court is entitled to use them as context in assessing objective seriousness.

AGGRAVATING FACTORS COUNTS 9 TO 14

S 21A(2)(eb) - In the home of the victim

29. This factor applies for the same reasons as previously expressed as it occurred in the offender’s home which was, in effect, the victim’s home when she was on access visits to him, and it should have been a safe place for her. Her evidence was that she no longer felt safe at this time and then told her mother that she did not want to visit the offender anymore. JC gave evidence that he could recall they stopped visiting their father for a period, but he did not know why. The victim’s mother also gave evidence that JY told her she did not want to visit her father and that the visits ceased for a period. This goes to demonstrate that JY did not feel safe anymore and believed that the offending was not going to cease until she stopped visiting her father.

S 21A(2)(k) - Breach of Trust / Authority

30. I accept for the same reasons as expressed before that breach of trust / authority is relevant to take into account in relation to these counts.

DV: - COUNTS 15 AND 16 - BETWEEN 4 APRIL 2007 AND 11 OCTOBER 2007

Count 15: Indecent Assault – Victim under 10

31. The offender told the victim to go into the victim’s mother’s bedroom, the offender took the victim’s hand and used the victim’s hand to stroke the offender’s penis on the outside of the offender’s clothes and then skin on skin. I find this is in the midrange of objective seriousness.

Count 16 - Indecent Assault - Victim under 10

32. The offender then masturbated the victim, skin on skin. Again, I find this is in the midrange of objective seriousness noting the period of time over which it was said to have occurred.

33. At the time of the offending, the victim was eight years of age and the offender 49, being a significant difference in age of some 40 years. It occurred in the victim’s home, in his mother’s bedroom on her bed where the offender had then isolated the victim away from the others present in the home. The offending was skin on skin contact and the victim was confused and scared at the time and afterwards as something like this had never happened to him before, as he recalled during his evidence.

AGGRAVATING FACTORS - COUNTS 15 AND 16

S 21A(2)(eb) In the home of the victim

S 21A(2)(k) – Breach of trust / authority

34. Both these aggravating circumstances apply in the circumstances of this offending.

35. DJ gave evidence that he trusted the offender because his mother did. He gave evidence that the offender had become a trusted member of the family, that he had dinner with them, sometimes stayed overnight and even brought his dog to stay when he did. There was a breach of trust in what had quickly developed as a pseudo parent/child relationship between DJ and the offender. The offender cultivated a position of trust and then breached that trust.

36. The offender had also disciplined both DV and NV as boys who felt that they were under his authority given the power dynamic that the offender demonstrated within the V home after their father had left. There was a distinct age gap between DJ and the offender, the offender assuming the male father role in the home and MV allowing the offender to play out this role in all the circumstances.

37. The offender took advantage of a vulnerable, disadvantaged family that required the support of FACS and other agencies such as the Samaritans. He used his position of trust and authority that he had gained in getting to know the Vs to commit the offences in respect of both DV and LV.

LV: - BETWEEN 4 APRIL 2007 AND 11 OCTOBER 2007

Count 17: Indecent Assault – Victim under 10

38. The offender walked the victim into her mother’s bedroom and closed the door. The offender pulled the victim close to him and grabbed both of her wrists. The offender pulled his penis out from the top of his pants. The offender was interrupted by someone entering the room and he left. I find this falls in the mid-range of objective seriousness.

39. The victim was three or four at the time of the offending. The offender must have the benefit of the facts most favourable to him which places the victim at aged four and the offender aged 47, giving a 43-year difference in age at the time of the offending. The offender isolated the victim to commit the offending. There was a significant age gap between them, and it was committed in the context of the offender playing the role of a father figure or parent in the absence of their father. The offender also picked up LV from pre-school and would take all the kids to the shops occasionally.

AGGRAVATING FACTORS - COUNT 17

S 21A(2)(eb) - in the home of the victim

S 21A(2)(k) - breach of trust or authority

S 21A(l) - vulnerable because of the victim’s age

40. For the same reasons as before, the offender breached the trust of LV and used his authority to commit the offending again which he had previously established by his attendances at the family home and the circumstances of those attendances.

41. The vulnerability of a victim of sexual assault is not an element of a sexual assault offence. That is not something that needs to be independently proved by the prosecution. The relevant element is age. It is entirely appropriate for me to take into account the fact that a younger child would have an increased level of vulnerability merely as a factor of age and I am entitled to have regard to the likelihood that both physical and mental maturity would increase with age, but she was towards the bottom end of the range covered by the section. being up to ten years of age. That has long been recognised in judicial decisions.

DJ: - COUNT 19 BETWEEN 24 MAY 2006 AND 1 JANUARY 2010

COUNT 19 - INDECENT ASSAULT, VICTIM UNDER 16 YEARS

CONDUCT

42. The offender showed the victim a video of a naked woman on a bed exposing her genitalia (“pink bits”) at the victim’s home when the victim was aged somewhere between eight and 12. For the purpose of sentencing, I will regard him as being aged 12, which is towards the upper end of the age scale where his physical and mental maturity would have increased to some degree from any younger age.

43. DJ recalled the incidence as occurring midway through primary school but there is other evidence from which it can be inferred that it could have been either earlier or later. As the age cannot be proved beyond reasonable doubt, it is appropriate to take the age as being at the highest, or 12. The offender was aged 52 at this time, giving a difference in age of some 40-odd years.

MJ: - COUNT 20, BETWEEN 1 JANUARY 2013 AND 5 FEBRUARY 2018

COUNT 20 - AGGRAVATED INDECENT ASSAULT PERSON UNDER 16

CONDUCT

44. The offender masturbated the victim’s penis while they sat on a bed in the offender’s caravan on the victim’s family property.

45. 34. The evidence in relation to MJ’s age was not clear during the trial. DJ recalled it occurring one day when he came home from school and CJ was in the caravan. CJ had been born in January 2010 so this incident could have occurred any time during the date range of the offence from ages four and a half to ten years. As the age cannot be proved beyond reasonable doubt, the offender is entitled to the facts most favourable to him, which would mean MJ was approximately nine years at the time of the offence for the purpose of sentencing, and the offender was then aged 60, giving an approximately 51-year age difference.

46. This falls in the mid-range of objective seriousness.

AJ:- COUNT 21, BETWEEN 26 AUGUST 2015 and 27 AUGUST 2017

Count 21 - Sexual intercourse with a person under 10.

CONDUCT

47. The offender digitally penetrated the AJ’s genitalia while in the offender’s caravan on the J family property. She told him to stop, and the offender said he would never stop. The offender told the victim that if she told anyone he would smack her. In my view this matter is in the mid to high range of objective seriousness.

48. At the time of the offending the victim was three or four, and for the purposes of sentencing she is taken to have been four years. The offender was some 60 years of age at the time, and it occurred in the offender’s caravan that was gifted to the offender by the victim’s father. Although the victim gave evidence the conduct happened every day until she got into school, I cannot use that evidence except to conclude that the offending did not occur in isolation and that the offender had built up trust over time and normalised the conduct.

49. The victim gave evidence she did not tell anyone because she thought “fat Pete” would hurt her, which was a reasonable fear for a child to hold given the offender had threatened to harm her if she did tell anyone.

50. As previously noted, the Crown does not assert that although the victim referred to the offending as occurring every day until she went to school, that is not a matter that can be taken into account except to demonstrate that the charged count was not in isolation.

AGGRAVATING FACTORS FOR COUNT 21

SECTION 21A(2)(e)(b) - in the home of the victim

SECTION 21A(2)(k) - breach of trust or authority

SECTION 21A(l) - vulnerable because of the victim’s age

51. I accept that the offending occurred in the victim’s home despite it not being in her home, which was close to the offender’s caravan. The caravan the offender was residing in was situated near the home but on the J family property. In my view a four-year-old child would expect the property to be regarded as her home, just as all adults living on properties regard the property as being their home rather than the structure which is normally referred to as a house which is usually present on the property. The victim was entitled to have a reasonable expectation of safety and security on the property and on that basis the home, as it were, extends to the physical area of the property, not just the actual house. In R v Lulham it was found that areas “at least reasonably adjacent” to the home or building can reasonably be regarded as being the home. In support of that proposition is R v Lulham [2016] NSWCCA 287 at 5 per Bathurst CJ with whom Beazley P agreed, although the other presiding judges did not address this issue in their reasons. But as I have said common experience is that persons who live on rural properties regard their home as being the entirety of the rural property and not simply the house or any building attached to the house.

CJ: COUNT 23 BETWEEN 10 JANUARY 2017 AND 11 JANUARY 2018 INDECENT ASSAULT PERSON UNDER 16 YEARS OF AGE

CONDUCT

52. The offender touched the victim on her genitalia, skin on skin while in his caravan; the victim said “No,” but the offender did it anyway. I assess this as falling in the mid-range of objective seriousness. At the time of the offending the victim was 7 years of age and the offender 60 years of age, meaning there was a very significant age gap of approximately 53 years.

53. The victim referred to the offender as “Uncle Pete,” as did the other children, and he had developed a relationship with the Js’ as he had with the Vs as a father figure/adult carer in circumstances where the father was largely absent. The offender took advantage of what was a vulnerable family in an isolated location with little support.

AGGRAVATING FACTORS for COUNT 23

SECTION 21A(2)(eb) IN THE HOME OF THE VICTIM

SECTION 21A (2)(k) BREACH OF TRUST OR AUTHORITY

54. For the same reasons as stated in respect of AJ, these aggravating factors are made out.

VICTIM IMPACT

55. Victim Impact Statements are before the Court from JY and DV. JY’s Victim Impact Statement is an eloquent and detailed outlining of all of the problems that have beset her both personally, emotionally and also in regard to her vulnerability within the community from those who have become aware of the offending.

56. It is clear that she has been very substantially affected by the conduct of her father, that it is entirely within the boundaries to accept that this will continue despite counselling and/or treatment for many years to come, if not, and most probably for the rest of her natural life. It is appalling that an individual would do this to a child, but even more appalling where it is the father who inflicts the illegal sexual activity on his child.

57. I accept that JY has been badly scarred by the offender’s conduct and I would like to refer to at least part of her statement when she said, talking about coming to the trial to give evidence,

“The first day I came here to give evidence I went to walk into the room, but I was really overwhelmed and scared, started to cry. I had to walk back out, shaking in fear, just seeing you. Every day I came here feeling sick, ashamed, scared, vulnerable and got taken back to those moments; back to that scared nervous little girl. The Crown’s red shoes actually got me through one of those days as they were the brightest things in the room.

I have been seeing psychologists since 17 years old to help me through. For many years I have struggled with depression, anxiety, unhealthy relationships with food, nightmares, unhealthy relationships - domestic violence, sexual abuse, that’s a small list.

The day last year when I got my subpoena, I was a mess knowing I had been in the same room as you, wanting to face you for me, for the scared little girl who once needed you to protect her, to show her that I protect myself. I had to send one of my kids to mum’s because I mentally couldn’t be the mum that they needed at that point. I got sleeping tablets from my doctor and had weekly psychologist appointments and check-ups together with anti-depressants and struggled to sleep.”

58. Despite the significance and substantial nature of the impact that this offending has had on JY, those impacts are within what can ordinarily be expected as the impacts that flow from offending of this nature.

59. DV also provided an impact statement which outlined the effects that these matters have had on him including depression, PTSD and having to eventually face, what he refers to as the shameful nature of the abuse, which he had apparently managed to repress for many years by utilising the defence of “denial”. He made his statement in 2020 and he said,

“… the last few years had been the hardest, I’ve had to confront my problems and bring up shameful and embarrassing things to complete strangers, to my family and friends. I repressed my memory of the sexual abuse so well for so many years that it feels like I went through it all again. I have nightmares now and have so for many years.”

60. Again, the offending has had a very significant effect on DV in relation to his ability to enjoy life, his feelings of trust and the ability to form new relationships. He has also found that his damaged self-esteem and confidence have made it difficult to find suitable employment opportunities. He stated,

“The crime has changed my normally happy predisposition to life and social connections. I find it difficult to feel happy and cannot help feeling that I pull others down when I engage in normal healthy social activities. Often, I feel unsafe to venture out by myself as panic and anxiety overwhelms me for no reason. It causes me to avoid new relationships and distance myself from the feelings, exposure, judgments and criticisms.” ... “Years after they discovered what Peter did, I went to therapy and thought I was getting over this, I was very wrong. My full understanding of what happened to me has only gotten clearer as I’ve gotten older. The crime will never really stop, this is what I will live with forever.”

61. Again, the impact has been very significant as one would expect it to be. It does not go, however, outside the ordinary sequelae which victims of this type of offending suffer, as I have said for significant periods of their life if not for the entirety of their life.

62. Section 25AA(3) of The Crimes (Sentencing Procedure) Act requires the Court to take into account the trauma of sexual abuse of children as it is now understood and not as it was understood in the past. Statistics available for offences committed in the past where the sentencing has happened in the past frequently did not understand the full degree of trauma and impact caused to children by this offending. Section 25AA(3) was introduced to ensure that Courts would take into account what is now understood as to the serious nature of those sequelae on the victims, particularly as a result of the recent Royal Commission into Sexual Offending Against Children disclosed it, and I have taken s 25AA(3) into account.

SUBJECTIVE MATERIAL

63. The offender did not give evidence at trial, nor did he give evidence on sentence. In respect of subjective material before the Court is the offender’s criminal history and New South Wales Department of Corrective Services Conviction Sentence and Appeals report, the report of Ms Caroline Hare, psychologist, dated 26 March 2024, a New South Wales Department of Corrective Services Report in respect of the risk of sexual reoffending, prepared by the New South Wales Department of Corrective Services, dated 27 February 2024. and a document provided apparently by the offender’s general practitioner, simply being a list of the offender’s attendances on his general practitioner between 31 March 2009 and 9 November 2018, the attendances being nothing more than short entries such as admitted JHA coronary angiography, medication and discharge hospital, general check-up and scripts, documents saved, influenza vacs, flu vacs, pathology required, pathology for diabetes clinic, diabetes and ischaemic heart disease, freestyle light test strip, diarrhoea, nausea and the like - minimalistic entries which may be meaningful to his general practitioner but are not particularly meaningful to me in the absence of a report from his practitioner as to any particular medical problem and its severity and likely impact on him.

63. There is some better reference by way of his reporting to Dr Hare on his state of health and problems. Of course what is contained in Dr Hare’s report is simply what she has been informed by the offender and what she is able to identify from material provided to her such as the indictment, a police report, the Corrective Services Conviction Sentence and Appeals report, the Sentencing Assessment Report of JY Ryan that I have already referred to, and the case note report of Paola Castillo, psychologist, on 27 February 2024. She observed that the offender attended for interview in an AVL suite, making use of a walking stick or cane consistent with him experiencing some mobility issue.

64. He informed her that he was raised in Swansea and the Lake Macquarie area by his mother and a stepfather who he believed was his father until he reached adolescence, and his mother informed him that he was in fact a stepfather. At that time, he felt very angry towards his stepfather and betrayed by his biological father who he has apparently never had any contact with. He spent some time, apparently in a youth remand centre at that period where he claims he was sexually assaulted by other boys, a fact that he has not previously disclosed before talking to Ms Hare.

65. He has three younger, maternal half-siblings, two sisters and a brother. Although he has had some ongoing contact with them up until the time of this offending, he does not currently maintain any contact with them. One of his problems in that regard is that he is currently facing separate charges which have not yet come to trial, being charges of a sexual nature in relation to allegations of sexual offences committed against his younger sister during their childhood.

66. He described his stepfather as being a good man and at least from the age of 16 he described developing an increased respect for his stepfather.

67. The offender spent time living away from home from about the age of 15 and gained permanent independence when he married in his early 20s. He referred to his childhood as being 90% happy and receiving lots of support from his mother and stepfather, and that the sad stuff, then referring to his involvement with criminal justice, was his “own fault,” asserted by him as being triggered by his underlying “anger that nothing went right for him.” He said that he developed the perception in his childhood that he had the opposite of the Midas touch, that is, that he ruined everything he touched.

68. He is said to have had an unremarkable school history, leaving school at the earliest opportunity when he was 14 years and nine months old. He had occasionally truanted while at school but was never suspended and furthered his education after leaving school by engaging in English and Mathematics classes at TAFE as a young adult.

69. He indicated that he had maintained an unstable employment history, being engaged in multiple manual labouring jobs over the years, with recurrent episodes of unemployment and periods on unemployment benefits.

70. At the time of the report, he indicated that it was years since he had engaged in formal employment. Between 2006 and 2018 he had lived on the J family property, doing some chores there as part payment for rent, but during the latter part of that time he was on a disability support pension due to his physical health issues.

71. He was apparently not involved in any structured leisure activities within the community, and he focused all his time on his companion dog, once he had acquired the dog.

72. Whilst in custody he worked for a period in the Nowra Correctional Centre laundry, but that ceased when he suffered an injury in custody when falling from his bunk bed.

73. He describes himself as a loner, being friendly, but preferring to be alone, with only past superficial friendships who he has said would describe him as being an acquaintance. He reported having experienced persistent loneliness after the end of his marriage in the late 1980s/early 1990s until he acquired the companion dog.

74. He identifies as heterosexual. His first significant union was in the early 1970s when he was in his mid-teens. It lasted approximately eight years but was terminated when he was serving a custodial sentence in approximately 1977, aged 20. His next significant relationship commenced in the late 1970s and they wed a couple of months prior to his wife terminating the union in the late 1980s.

75. There were two children of that marriage or union, being his son JC, born in 1983 and his daughter JY, who is one of the victims. His contact with his daughter ceased many years ago, but he had some ongoing contact with his son up until he was charged with these offences, and his son has not visited him on any occasion since he has been in custody. JY ceased contact with him approximately 20 years ago. Apparently, his son ceased accepting any phone calls from him in 2022 while he was in custody.

76. He informed the psychologist that he was aware of the legal age of sexual consent in New South Wales and acknowledged that it was never okay for an adult to engage in sexual behaviours with a child, describing the impact of sexual abuse on children as “very bad” and citing, in that regard, his own experiences at the hands of male peers as previously referred to. Despite his having that understanding, he committed this significant series of offences against children over a period of approximately 23 and a half years.

77. He informed the psychologist of having knee pain and shoulder pain resulting from the bunk bed fall in 2022, regular bouts of diarrhoea, stress-related migraines, episodes of dizziness several times daily, occasionally causing him to collapse, cataracts, hearing loss, obesity and type-2 diabetes, and said that he was on 14 medications daily including blood thinners, iron supplements and medicine to help manage his blood sugar level, antihypertensive medication, statins and medications for reflux. He said that he had stents inserted to reopen a blocked artery in approximately 2000 when he was in his mid-40s and that he had had triple bypass surgery to his heart sometime between 2016 and 2018 after suffering a heart attack.

78. Despite the lack of evidence of these problems, I am prepared to accept that the offender had stents inserted, that he does have some ongoing problems in relation to his physical state, but there is nothing outlined in this material or in the GP’s list of attendances that raises any issue that any of his problems are not entirely capable of being appropriately dealt with while in custody.

79. The psychologist indicates that he reported having been involved in a motor vehicle accident when he was 17 years of age and suffering a head injury and becoming forgetful or neglectful after that. He was said to have recently undergone brain scans at the Prince of Wales Hospital as a result of the fall from the bunk but had not received the results, and I note no results have been put before me.

80. The psychologist opined, as a result, that he could be suffering neurological decline, which in turn could impact his decision making. She recommended that further neurological and/or neuro‑physical assessment “outside the scope of the current assessment” would be required to assess this aspect of his presentation. Again, I note that no such material has been placed before me on sentence.

81. He is said to have had reported episodes of heavy alcohol use during his life, particularly prior to 2018, when he subsequently moderated to a very conservative consumption of two middies of beer per week, once he had the companion dog.

82. Apparently, he has smoked cannabis intermittently since he was about 20 years of age and regularly smoked it while living at the J family property. He claims to have ceased smoking cannabis in 2018, when he also moderated his drinking. Apparently, he also experimented irregularly with hallucinogens in the 1970s, but has ceased such use. He reports having no withdrawal symptoms or cravings since being remanded in custody.

83. The psychologist summarised his criminal history in the following fashion:

“Mr Charlton’s NSW criminal history reflects general anti-social conduct dating from 1973 (aged 15) including convictions for acquisitive offences, driving offences, property damage and contravene prohibition/restriction in order. He has prior convictions for sexual offences (two offences of wilful and obscene exposure) committed in 1990 and 1996. Mr Charlton reported being unable to recall these past sexual matters when they were explored during the current assessment.”

85. A case note indicated to the psychologist that he had faced three child sexual abuse charges in 2007 against complainants from the same family as two of the complainants in the current matters, but that those complaints were dismissed in 2008. They are accordingly not relevant to the current sentencing procedure and the fact that he apparently awaits a future trial for further sexual abuse allegations against his sister arising from their childhood also is not relevant to the sentences to be imposed here.

86. I will simply take into account his general criminal history which does not have any significant matters in relation to sexual offending but which is not totally irrelevant in the light of the two offences of wilful and obscene exposure, noting that the first of those occurred on 27 March 1990 and the second was on 4 January 1996. In relation to each of them he received a recognizance under s 558 to be of good behaviour for a period of time.

87. I find it unusual that the offender cannot recall what it was he was dealt with for wilful and obscene exposure, however there is no further information before me which illuminates that issue.

88. Ms Hare refers to the offender as maintaining his innocence with regards to all of the present matters. She rated him as being above average risk in relation to Static-99R for being charged with or convicted of a further sexual offence and placed him in the high risk/treatment need category. She otherwise opined that his account:

“… reflects the presence of cognitive distortions or comfortable stories that I opine allowed him to overcome internal barriers to committing the sexual offences, for example telling himself that he was engaging in innocent play and/or tending to the complainant’s needs.”

89. Mr Charlton’s poor problem solving meant that following the sexual offence charges being laid (and dismissed) in 2008 by siblings of two of the complainants in the current matters, he failed to reflect on his conduct and adjust his behaviour to avoid placing himself in situations whereby he was at risk of further allegations being made. She also suggests that because of his multiple physical health complaints, which she apparently accepted, and a history of unresolved trauma, that those combined factors might suggest that he could experience the custodial environment as more challenging than someone without those issues.

90. The case note report assessed the offender as being on the Static-99R test as being at above the average risk level. It is also noted that he has consistently denied his sexual offending behaviour. As he is assessed as above average risk in custody, he would be eligible to participate in a high intensity sex offender program, although if he continues to deny the offending, he may be more eligible for the deniers’ program.

91. The Sentencing Assessment Report of J Ryan dated 5 February 2024 contains the following as to family and social circumstances: that both of his parents have died and he has no support available to him, having also cut all ties with his close family and friends due to the index offences. He was apparently the recipient of a disability pension from Centrelink for the past five years.

92. Under History of Anti-Social Behaviour, his history of offending is described as:

“Including offences relating to driving, stealing, break and enter, wilful and obscene exposure, malicious damage, in breach of AVO ... the index offences display a continued and concerning pattern of behaviour of offences of this nature ... while Mr Charlton has a limited history of sexual offending, the index offences were committed over an extended number of years ... Mr Charlton refused to accept responsibility for the offences and denied any culpability”.

93. Under The Impact of Offending, it is stated that:

“Mr Charlton showed no insight into the impact of his offending. He dismissed suggestions the victims would have been affected by his actions and maintained his denial.”

94. The Community Corrections officer assessed him as a medium risk of offending, but I note he has been otherwise assessed at a higher level, including by his own psychologist. The Community Corrections officer also indicated under Attitudes:

“Mr Charlton presented a minimising attitude towards his offending. He denied committing the offences and reported a belief he is only guilty due to the Court’s findings ... Mr Charlton was unable to provide any rationale with regards to the noticeable pattern of similar behaviour reported by the individual victims in these offences.”

95. However, in Ms Hares’ report, the offender provided some explanation for these matters. She states at para 30:

“Mr Charlton maintains his innocence with regards to all the current matters. He suggested a female friend of his ex-wife’s ‘put stuff (in her) head and ‘caused trouble’ resulting in his daughter making allegations of sexual abuse. Mr Charlton reported the next allegations dating from 2007 - occurred within the context of him having formed a friendship with the complainant’s mother. He described attending her home to complete chores such as attending the garden during a period when she was separated from her partner. Mr Charlton acknowledged sitting with his arms around the girls while watching television and going bushwalking with the boys. He described playing with the children and touching them (non-sexually) on the outside of their clothing. He also recounted an incident whereby the children ‘tied’ (him) up’ and ‘pulled (his) pants down’ exposing his penis. His account suggests he employed cognitive distortions or comfortable stories that justified his sexual misconduct as innocent play.

Regarding the most recent allegations spanning 2006 to 2018, Mr Charlton advised that he was living on the property of his brother-in-law’s brother’s wife and nine children during this period. The father was often away, leaving the Mr Charlton to support the complainant’s mother with chores and caring for the children.

Mr Charlton reflected having felt close to the children (‘I thought of those kids as my own’) and indicated engaging in activities such as changing nappies, swimming with the children and driving them to places. He said the allegations were made after his tenure at the property ended abruptly. This was after he made a sexually explicit comment to the complainant’s mother over the telephone which her partner overheard. Mr Charlton said the comment was made in jest (telling her she would need to perform a sexual act on him in return for him securing some cannabis), but her partner verbally abused Mr Charlton and told him not to return to their property.

Mr Charlton offered his belief the complainants were forced to make the allegations against him by their father who he believes was ‘getting even’ after misperceiving Mr Charlton was having an affair with his partner (which Mr Charlton denied). Given Mr Charlton was maintaining his innocence, victim empathy was not canvassed during the current assessment.”

96. His psychologist opined after her consideration of all of the material and her consultation with the offender, the following:

“Based on his presentation and limited insight, I was unable to form an opinion as to whether Mr Charlton was suffering from any diagnosable mental health conditions, either historically or at the time of the present assessment. He appears to have experienced an emotional crisis when his marriage terminated when he was aged in his late thirties/early forties, and he evidences a long-standing pattern of avoidant emotional coping that allows problems to re-emerge rather than resolving them through proactive coping strategies.”

97. The trial was defended. The offender continues to deny any of the offending in respect of which the jury found him guilty. There is, accordingly, as previously said, no discount for the utility of a plea. There is also no evidence of remorse or contrition from any of the material before me and the prospect of rehabilitation has to be extremely guarded in the circumstances where the offender continues to deny the conduct. Rehabilitation is only ever likely to occur where an offender acknowledges that they have committed the offences and is prepared to then accept or seek treatment or guidance as to how to deal with their individual problems which may have a bearing on the commission of the offences.

98. There is no psychological explanation for any of these offences and as I have said, there is no remorse or contrition. The offender continues in blanket denial of the pain and suffering he has caused to his daughter and to all of the other victims of his offending and no doubt, of course, stress and concern to their relatives who have had to cope with them and their problems arising from this offending.

99. I intend, as indicated to deal with these matters by way of an aggregate sentence which in itself will take account issues such as totality and concurrency.

100. I will now proceed to state the indicative sentences as I am required to in the circumstances where I propose to impose an aggregate sentence. That will include where the offence is one that has a standard non-parole period provided by the legislation, an indicative non‑parole period. But not in relation to obviously any count which does not have a standard non‑parole period provided by the legislation. I will provide a schedule to the parties.

HIS HONOUR: I will just read the count number and the indicative sentence and then deal with the aggregate sentence.

So, first of all, Mr Charlton is convicted in respect of Counts 1 to 17, 19, 20, 21 and 23.

In respect of Count 1, the indicative sentence is 18 months’ imprisonment.

Count 2, the indicative sentence is two years’ imprisonment.

Count 3, 18 months’’ imprisonment.

Count 4 two years’ imprisonment.

Count 5 18 months’ imprisonment.

Count 6, two years six months’ imprisonment.

Count 7, 18 months’ imprisonment.

Count 8, two years, and six months’ imprisonment.

Count 9, 18 months’ imprisonment.

Count 10, two years six months.

Count 11, 18 months.

Count 12, seven years’ imprisonment.

Count 13, 18 months’ imprisonment.

Count 14, seven years.

Count 15, four years with an indicative non-parole period of three years. Count 16, four years with an indicative non-parole period of three years. Count 17, one year with an indicative non-parole period of nine months.

Count 19, one year.

Count 20, four years six months with an indicative non-parole period of three years four months.

Count 21, ten years with an indicative non-parole period of seven years six months.

Count 23, three years four months with an indicative non-parole period of two years six months.

101. I will impose an aggregate sentence with a non-parole period of 12 years commencing from the date of his arrest on 20 December 2021. He will accordingly be first eligible for parole on 19 December 2033. The balance of term is four years which will expire on 19 December 2037.

102. The total term of the head sentence is accordingly 16 years with a 12-year non-parole period. It will be evident to the parties that in those circumstances I have clearly not found special circumstances.

103. As I have said, there is no remorse or contrition. The only prospect of rehabilitation, it would seem to me, is the length of time that he is required to serve in prison, and he will be significantly older by the time he is first eligible for release in December of 2033. Increasing age may be the only hope that he can be rehabilitated and will not reoffend. But that is entirely speculative.

101. The prospect of rehabilitation in my view is well served by the fact that there are four years of potential parole if he is released at the earliest occasion. Noting of course, although he is only likely to be supervised for three years of that period, it is nonetheless in my view a matter in which any lesser sentence would not appropriately reflect the seriousness of the offending which occurred over such a significant period in respect of a significant number of children, who were in fact all under the age of ten on every occasion, and in circumstances where over time it appears that the offender put himself into situations where he could, in effect, groom the children by way of placing them in the effective position of being under his authority, and them developing a trust in him as a result.

CHARLTON TABLE OF CHARGES Redacted version (282121, pdf)

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Decision last updated: 05 February 2025