R v Childs

[2022] NSWDC 659

District Court

New South Wales

Medium Neutral Citation:

R v Childs [2022] NSWDC 659

Hearing dates:

30 November 2022
01 December 2022
13 December 2022

Date of orders:

16 December 2022

Decision date:

16 December 2022

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

See [135] – [138]

Catchwords:

SENTENCING – plea of guilty – child sexual offences - background of disadvantage – diminishment of moral culpability

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v the Queen (2013) 249 CLR 571

Markarian v The Queen [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120

Perkins v R [2018] NSWCCA 62

R v Lau [2022] NSWCCA 131

R v Millwood [2012] NSWCCA 2

Category:

Sentence

Parties:

Rex (Crown)
Gary John Childs (Offender)

Representation:

Counsel:
A Coulton (Crown)
D Wong (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)

File Number(s):

2020/0049122

Publication restriction:

Non-publication order in respect of the victims or any information that may tend to identify them.

Judgment

1. The offender Gary John Childs, born in 1981, is before the court for sentence for seven offences. They are two counts of sexual touching contrary to s66DB(a) of the Crimes Act 1900 (Crimes Act) (sequences 6 and 7) for which the maximum penalty is 10 years imprisonment and for which there is no standard non-parole period, two counts of indecent assault person under 10 years of age contrary to s61M(1) of the Crimes Act (sequences 10 and 11) for which the maximum penalty is 7 years imprisonment and for which there is a standard non-parole period of 5 years, and three counts of indecent assault person under 10 contrary to s61M(2) of the Crimes Act (sequences 17, 19 and 20) for which the maximum penalty is 10 years imprisonment and for which there is a standard non-parole period of 8 years. The offender pleaded guilty to these offences at Nowra Local Court on 6 May 2022.

2. The agreed facts are as follows:

1. The offender has no prior criminal history.

2. At the time of charging, the offender was unemployed and resided in a camper van in the driveway of his father’s home on the South Coast of New South Wales.

3. Previously, Mr Childs was in a relationship with AB. She had moved to South Coast in 2015 with her three children CD (born in 2004), EF (born in 2007) and GH (born in 2009).

4. AB migrated from Europe with the father of the children in 2007 but they had divorced in 2015 at the time she moved to the South Coast.

5. The offender moved into AB’s home with her children soon after their relationship commenced in 2015. He then became the stepfather of CD, EF and GH.

6. The offender moved with AB and her children to another address on the South Coast in February 2018.

7. The relationship between the offender and AB ended in May 2021.

8. In July 2021, a Helpline report was received at the Wollongong Child Abuse Unit following disclosures made by AB’s daughters CD and EF. CD provided a statement to police on 5 August 2021 and EF was interviewed by police on 6 August 2021.

Offence with respect to CD

Sequence 19: Aggravated indecent assault - child under 16 years

9. Between 2016 and 2017, when CD was about 12 years old, the family (including the offender, AB and her three children) were watching a movie they had rented.

10. CD was wearing shorts and was seated on the three-seater lounge with blankets covering her. The offender sat between CD and AB. CD’s brother and sister were on the other lounge. During the course of the movie, the offender rubbed his hand up and down CD’s inner thigh, at times coming close to her genitals.

11. The offender engaged in this type of conduct on a regular basis.

Offences with respect to EF

Sequence 6: Sexual touching - child between 10 and 16 years

12. During 2019, the offender was reading a bedtime story to EF and her younger brother. They were in EF’s bedroom laying on her bed and her brother fell asleep.

13. Whilst reading the story, the offender was rubbing EF’s upper thigh with his hand. He then moved his hand and started rubbing her buttocks. EF felt uncomfortable and told the offender she needed to use the toilet. She left the room and went downstairs and told her mother that the offender was touching her. EF was 11 years old at the time.

14. This was not an isolated incident and occurred several times when the offender read bedtime stories to EF.

Sequence 7: Sexual touching - child between 10 and 16 years

15. On 28 March 2020, EF was asleep in her bedroom. The offender entered her bedroom, laid down next to her and placed his hand inside her bra. EF woke up to find the offender's hand grabbing her breast. She kept her eyes shut and rolled over onto her side. The offender got up and walked out of her bedroom.

16. EF sent a message to her sister CD who was staying at a friend’s house. The complainant told her sister, 'I just woke up to Gary's hand on my tit… he had his hand down my bra.'

17. EF was 13 years old at the time. She told her mother about this incident, but no report was made to police and the offender continued to live in the family home.

Complaint

18. EF disclosed the offending on a number of occasions from 4 March 2017 to her mother AB. AB confronted the offender on a number of occasions, but he denied any wrongdoing.

19. In May 2021, the offender and AB separated, and the offender moved out. AB questioned the offender about the disclosures made by her daughter. The offender replied, "You don't understand. It's all about love. Your girls are an extension of you."

Arrest

20. At about 11.15pm on 20 August 2021, the offender was arrested and charged with the matters now before the court.

Contact between KL and EF

21. IJ, the former wife of the offender, made contact with AB in 2015 when she became aware that the offender had commenced a relationship with AB. She warned AB that the offender had had a sexual interest in her daughter KL. The offender convinced AB that this was untrue.

22. Following the separation of the offender and AB and the disclosures of EF, AB told EF that she had been warned by IJ about the offender’s sexual interest in KL. EF told her mother that she wanted to speak with KL.

23. Following a conversation between KL and EF, KL provided a statement to police on 1 August 2021.

Offences with respect to KL

24. KL was born in 1996. Her mother, IJ, was 16 years old at that time she was born. KL has never met her biological father.

25. The offender met IJ in 1999. In 2000 they moved into a house with KL.

26. The offender and IJ had a son MN in 2001. At that time KL began calling the offender ‘Dad.’ KL enjoyed his company as he was very involved, he always played with her and he would take her swimming and fishing at the river. He took on the role of KL’s father.

27. In 2005 IJ and the offender had a second son OP.

28. In 2002 IJ and the offender married. KL was 6 years old and had started Kindergarten.

29. In 2003 IJ and the offender purchased their first house. KL was about 7 years old at the time.

30. In 2005, at the beginning of year 4 when KL was 8 years of age, she moved to a school in suburban Sydney.

Sequence 20: Indecent assault of victim under the age of 10 years

31. KL was about 8 or 9 years old when the offender started coming into her bedroom when she was about to go to sleep. He would only come in when her mother was not home. He would tickle her back initially, and then progress to tickling the back of her legs and thighs.

32. As time went by, the offender asked KL to take her pants off (leaving her underwear on) and he tickled her bottom and the inside of her thighs with his hands. He ultimately would ask her to remove her underwear.

33. One night when KL was about 9 years old, the offender came into her bedroom before she we went to sleep. The offender told her to stand up and asked her to take her pants and underwear off. She complied and laid back down on the bed on her stomach.

34. The offender knelt down next to the bed and moved her legs slightly apart. He tickled her bottom with his hands before moving to her genitals. He ran his fingertips softly over the outside of her genitals and moved his fingers from her bottom back down to her inner thighs and then back to her genitals again.

35. This type of activity took place on a regular basis over a 2-year period when KL’s mother was absent from the home, or when she was reading. On occasion the offender would become angry when KL asked him to stop, and he would leave the room.

Context evidence

36. On a weekend at about the time of KL’s 9^th or 10^th birthday, a family birthday party was held at KL’s home. Her mother’s side of the family were in attendance.

37. After she opened presents, KL took them up to her room. The offender followed her into to her bedroom. He asked her to try on some new clothing she had received in front of him. She said, “No, I don’t feel comfortable with you watching me. Go out and I will get changed and come back out and show you.” The offender said, “I’m your dad and you shouldn’t feel uncomfortable getting naked in front of me.” He was sitting on the corner of her bed against the wall, and he would not leave the room. KL complied and tried on various outfits while the offender watched.

Sequence 10: Indecent assault of victim under the age of 16 years

38. When KL was about 9 or 10 years old, she went into the bathroom to use the toilet at about 5 to 5.30am. This was the only toilet in the house.

39. The offender was in the shower getting ready to leave for work.

40. The door was locked with a latch and KL knocked on the door. The offender let her in. She used and flushed the toilet and pulled her pants up. At the same time the offender turned the shower off and got out. He locked the bathroom door. KL said, “I’m just leaving now, sorry.” The offender said, “No stay.” He pushed her shoulders downwards and she fell to her knees.

41. The offender was naked, and he placed his penis at the side of KL’s face. She turned her face away, and the tip of his penis touched the side of her face. He reached down and pulled both her arms up, placing her hands on the side of his naked body. He moved her hands with his hands as a guide, up and down the side of his body whilst his penis was moving against the side of the skin on her cheek.

42. After a time, KL stood and said, “I’m leaving now, I’m going back to bed.” The offender allowed her to leave the bathroom.

43. This type of activity took place in the bathroom on more than 50 occasions. It stopped when KL was in year 7 (12 or 13 years old) after she got her first boyfriend. She was terrified to use the toilet when the offender was in it and she would hold on if she could. On one occasion she defecated in her pants in her bedroom. She was about 9 or 10 years old at the time. Her mother questioned her about this, but KL was too scared to disclose the reason to IJ.

Sequence 11: Indecent assault of victim under the age of 16 years

44. The accused and IJ separated in 2007 when KL was 10 or 11 years old. The offender stayed in the family home but was sleeping in KL’s bedroom and sometimes on the lounge for a few months. During this time, KL slept either in her mother’s bed or in her brother’s bunk bed.

45. One morning she was asleep in MN’s bedroom on the bottom bunk. She was about 10 or 11 years old. In the early hours of the morning, whilst it was still dark outside, she woke up to the sound of the shower running. The bathroom shared a wall with MN’s bedroom.

46. A few minutes later, KL heard the shower stop and the offender came into the bedroom. She was pretending to be asleep and was laying on her stomach with her head facing towards the wall. Her right hand and arm were outside of the blanket and slightly hanging over the edge of the mattress. She felt the edge of the offender’s towel touch her arm and felt the tip of his penis touch the palm of her hand.

47. The offender softly rubbed the tip of his penis up and down KL’s arm and hand and at the same time he was running his lips across the back of her neck and on her left ear. KL felt what she then believed was water on her hand. She now understands it was semen, as it was sticky. KL’s brother MN was asleep in the top bunk the entire time. A few minutes later the offender left the room.

48. This type of incident occurred a number of times.

Sequence 17: Indecent assault of victim under the age of 16 years

49. On KL’s 13^th birthday in 2009, the offender moved out of the family home. He had been bringing women to the family home and this had caused issues.

50. The offender moved in with his sister. KL and her brothers would visit the offender every second weekend and they would sleep over on those weekends. The boys slept in the loungeroom on the lounge and the offender had his own room. His sister had her own room and when she was not home for the night, the offender made KL sleep in his sister’s room.

51. On a night in late 2009 or early 2010 (when KL was 13 years old) she was at her aunt’s house in her bed. The boys were asleep in the loungeroom. The offender came into the room and laid down next to KL on the bed. He started kissing her shoulders and neck. He tickled her back and arms. He tried to force his hands between her legs. KL said “Stop, I’m trying to sleep.”

52. KL tried to push the offender off and he pushed himself on top of her. He put his body in between her legs and pushed his penis against her genitals. She was wearing underwear at the time. He started grinding and humping whilst laying on top of her. She tried to push him off, but he was too heavy.

53. The offender pulled her shirt up and started biting and sucking on her breasts. He called her nipples “mosquito bites”, a comment that he had made multiple times before. She told him to stop, get off her and that she wanted to go to sleep. He persisted and told her it was just a bit of fun.

Complaint

54. When KL was 13 years old, she disclosed the sexual abuse to her aunt and her mother. KL and her brothers had spent the weekend with the offender at his sister’s home. Her aunt was discussing that she had been sexually abused when she was younger.

55. KL said, “You don’t know what Gary has done to me”. Her aunt and her mother were shocked, and both asked, “What do you mean?” KL said, “Don’t worry about it, I don’t’ want to talk about it.”

56. When KL and her mother were in the car, IJ asked KL if she wanted to talk to the police about the abuse and KL began to panic. She said that she did not wish to talk to the police.

57. Later that night, the offender arrived at the family home. He asked KL to talk to him outside. They sat on the front steps, and he said, “Do you know how serious this is what you said, you know what it’s like to grow up without a father, you don’t want your brothers to go through that?” KL did not reply. He said, “You don’t want your brothers’ father to go to jail do you?” KL did not reply.

58. From that point the sexual abuse stopped (apart from one more inappropriate incident when she was about 16 years old). She asked her mother if she could stop visiting the offender with the boys and her mother agreed.

59. In November 2013, when KL was 17 years old and she was in year 11, she told her school counsellor some basic information about the sexual abuse. The counsellor was a mandatory reporter and she notified police.

60. KL was reluctantly interviewed by police at her school on 14 November 2013. Whilst she responded truthfully, she did not give police the complete version of events. At that time the offender was still living in the family home. She was also studying for the HSC, and she advised police she would not give evidence at that time.

61. At about Christmas 2013, the offender left the family home. KL, her mother and her brothers have not seen the offender since. When IJ discovered that the offender was in a relationship with AB, she sent AB a message warning her that the offender had sexually abused KL. AB replied that the accused had denied this allegation.

62. In July 2021 MN received a message via social media from AB indicating that her teenage daughters had disclosed that the offender had sexually abused them. On 31 July 2021, KL added EF as a Facebook friend after EF asked to talk to KL and they messaged each other.

63. Some days later, MN placed comments on some photographs, to the effect that the offender liked touching young girls, which were posted on the Instagram account of the offender’s father.

64. On 24 July 2021, KL received an Instagram message request from the offender under the username of ‘gary.john81.’ KL believed it was the offender as his middle name is John and he was born in 1981. The message read:

“I’ve learned so many things in my life the wrong way. A needle in my vein was the highest of my priorities when we met. All I really know is everything ended in such a terribly sad and painful manner.
I’m not asking for your forgiveness. That to me is a personal journey for each and every person to discover within themselves if they choose it.
I am deeply sorry that I wasn’t what and who you needed me to be. I let you down tremendously and it has haunted me for every day of my life since. I am embarrassed and ashamed for you to know the version of me that you do.
I hope that your life is wonderfully abundant in joy and happiness and freedom to be who you want to be.
Gary.”

65. KL replied (and then blocked the offender from messaging her further):

“I also have learnt a lot of things in my life since I first told everyone what you did to me. Like how to not let people manipulate me, I am 25 years old now, not 10. I see straight through this and I know who you really are no matter how hard you want to try and hide it.
You cannot blame everyone else for your actions, you are an adult and have full control over all the decisions you make. You choose to hurt people because that is what you enjoy to do, what gives you satisfaction. You enjoy sexually abusing females, grooming young boys to be like you, and to hit children when they don’t do what you want.
I don’t want your sorry, nor do I need it. You mean nothing to me and haven’t for a long, long time. You shouldn’t be embarrassed and ashamed for me, you should be embarrassed and ashamed for yourself. You should be steering clear of any relationship with any women or children for their own protection. That’s what you would do if you really cared at all about what you have done.”

66. On 31 July 2021, KL called police and arranged to make a statement. The offender was later charged with offences with respect to KL.

Exhibits

3. Before me are eight exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. Committal documents;

2. A charge certificate;

3. Agreed facts, (recited above);

4. The offender’s criminal history; and

5. The offender’s custodial history.

4. Exhibit 2 is a Sentencing Assessment Report (SAR) under the hand of Kevin Bentrup dated 1 August 2022 to which a Structured Case Note prepared by Grace Maguire senior psychologist at Nowra Community Corrections dated 4 August 2022 is annexed.

5. Exhibit 3 is a report prepared by Patrick Sheehan psychologist dated 25 July 2022. Mr Sheehan was not required for cross-examination.

6. Exhibit 4 is a letter from Dr Mario Farina dated 6 October 2022. He is Mr Childs’s treating clinical psychologist, and he was not required for cross-examination.

7. Exhibit 5 is a letter to the court by the offender’s partner Kathryn Powell dated 30 November 2022.

8. Exhibit 6 is the Intake Assessment Form and three offence maps completed by Ms Shelley Hadlow, Community Corrections Officer.

9. Exhibit 7 is a Case Note Report completed by Ms Hadlow on 12 May 2022.

10. Exhibit 8 comprises three case notes completed by Mr Kevin Bentrup on 1 August 2022, after he met with the offender.

Evidence

11. I will now summarise some of the documents which have been placed before me.

Exhibit 1

12. The offender has no prior criminal history and was arrested for the instant offences on 21 August 2021. He was released on bail on 1 September 2021 and he has thus spent 13 days in custody. His sentence will be backdated to reflect the time he has spent in custody

Exhibit 2

13. The SAR prepared by Mr Bentrup states that a source of information used to prepare the report was “interviews with Mr Childs”. However, during the course of the sentencing proceedings, it became apparent that Mr Bentrup had not in fact interviewed the offender in the first instance, but rather relied on an Intake Assessment Form and a case note from a previously engaged Community Corrections Officer Ms Hadlow who had interviewed Mr Childs. Mr Bentrup relied on her notes as well as an interview with the offender.

14. The SAR indicates that the offender currently lives in a converted mobile home on his father’s property. He has the support of his father, his siblings and his current partner. He is currently unemployed, but has previously been in continuous employment. He has no prior criminal history.

15. The offender expressed feelings of guilt and shame mixed with self-concern. He blamed his poor mental health and substance abuse for the offending, but expressed regret. It was reported that he disputed the police facts, saying that he agreed to them only to have the matter finalised. He said that he had little recollection of the offences which he claimed were taken out of context. The offender reported being in toxic relationships and being hurt because of his partners’ infidelity. He said that he offended as a means of reprisal. The offender described feeling “privileged” because his mother disclosed to him that she was a victim of sexual assault. The report writer observed that the offender used the disclosure as a rationale for his offending, and that he minimised his behaviour citing his substance abuse as lowering his inhibitions and distorting his thinking.

16. The offender reported being a heavy drinker from a young age. He commenced using intravenous drugs at 18 years of age to cope with childhood trauma. He ceased drug use in July 2021. He continued to drink, but has reduced his consumption.

17. Mr Bentrup reported that Mr Childs attributed blame to his first victim, claiming that she had impliedly consented by entering the bathroom. He said that his victim must have wanted it and that he did not have to force her, and he noted that she was already sexually active.

18. The offender had yet to engage in mental health interventions, although he reported long-term symptoms of anxiety, stress, depression and paranoia. He was able to acknowledge the pain and trauma suffered by his victims.

19. The offender was assessed at a medium risk of re-offending according to the LSI – Revised.

20. It is important to observe that the opinions and conclusions of Mr Bentrup were in part arrived at as a result of his reliance on Ms Hadlow’s handwritten notes (and her opinions and conclusions), which she conceded were not comprehensive. My reading of all of the notes, and my understanding of the evidence given in court by both Ms Hadlow and Mr Bentrup (both of whom were candid and professional), was that when the offender looked back in time, he believed that he then thought that one victim had “consented” (which he now understood was not possible), that with respect to CD and EF he “did it” (in part) to get back at AB (which he understands now is misguided), that all the offending took place when he was either fuelled by excessive drugs and/or alcohol, that whilst he had no or little recollection of what had happened he accepted the facts, and that he was guilty and accepted responsibility. To the extent that either Mr Bentrup and/or Ms Hadlow concluded that the offender minimised his offending and/or blamed the victims, in my opinion those opinions are misconceived and I do not rely upon them. As will shortly be seen, in my view the offender has evolving insight into his offending. It is hoped that he will engage with psychologists and other professionals to improve his prospects of rehabilitation.

21. The Structured Case Note by Ms Maguire was noted not to be a comprehensive risk assessment. Its purpose is to assist in the prediction of sexual recidivism. No face-to-face interview was conducted. Dynamic risk factors were not factored in.

22. Ms Maguire notes that in his interview with Community Corrections, the offender reported feeling guilt and shame about the offences, but minimised his behaviour by stating that he did not have malicious intent. He attributed his most recent offending to alcohol use, feeling hurt from his partner’s infidelity and wanting to get back at her. He refuted the details of the offending, but stated that he did not recall the offending behaviours due to his intoxication at the time. With respect to the offending against the first victim, the offender attributed responsibility to the child by stating that she was sexually curious and had continued to return to the situation which he believed showed a measure of consent. He reported mental health issues and significant drug use at the time of offending.

23. The offender has good family support. He finished year 12 and an apprenticeship as a parts interpreter in 2000. He believes that he has a good work ethic. He currently has a supportive relationship with a partner. He has two sons from a previous marriage with whom he has no contact. He reported current alcohol abuse. He had previous drug issues with cannabis and methamphetamine, but has not used drugs since June 2021. He expressed a willingness to seek counselling. He was diagnosed with cancer and completed treatment in 2019.

24. According to the STATIC 99R, Mr Childs scored in the Below Average risk category. Dynamic risks were said to possibly include negative emotionality/hostility, poor problem-solving skills, sex as a coping mechanism and deviant sexual preference.

25. Ms Maguire notes that based on Mr Childs’s risk assessment, he is not eligible for the Sex Offenders Program offered by Corrective Services. She believes that he would benefit from psychological intervention.

Exhibit 3

26. Patrick Sheehan, forensic psychologist at Big Picture Psychology, reported on behalf of the offender on 25 July 2022. He interviewed the offender for three hours in his Sydney rooms on that day.

27. Mr Sheehan found the offender to be cooperative, polite and a competent communicator. Mr Childs was able to provide a coherent history and he was not thought disordered. Mr Sheehan noted that the offender’s insight was uneven. He appeared to function intellectually in the average range and there was no reason to suspect cognitive impairment. The offender’s affect was noted to be slightly glum and the offender had tears in his eyes during discussion of the impact of his offending on his victims. He denied current or recent suicidal ideation and did not appear obviously substance affected.

28. Mr Childs reported that he was born and raised in western Sydney and was the eldest in a sibship of five. His father was reliably employed, and his mother was mostly engaged in home duties but took occasional employment. The offender reported no familial issues with substance abuse or crime and the family unit remained intact during his childhood. However he reported recurrent conflict between his parents.

29. Further, the offender reported that his mother had disclosed to him that she suffered with ongoing trauma relating to sexual abuse by her father when she was a child. He said that his mother had been emotionally unstable and that she disciplined him heavily including with a jug cord. Mr Childs denied experiencing childhood sexual abuse, but his mother repeatedly told him about the details of her own abuse, which he said was confusing to him. He said to Mr Sheehan, “I was only seven years old, I didn’t know what to do with that information. She shouldn’t have put that load on a young child. It affected me.”

30. The offender’s parents separated permanently when he was 18 years old which was dramatic and upsetting, as police attended the home to remove the offender’s father and an ADVO was put in place. He moved out of the family home the same year and lived independently until his early thirties. The offender described a tepid and distant relationship with his mother. Three of his siblings went on to develop serious substance abuse issues and life instability, with only one sibling being well adjusted in adulthood.

31. Mr Childs’s education history was unremarkable. He described his employment history as disjointed but busy. He has held employment for most of his life. He attempted an electrical apprenticeship after leaving school but was unable to complete this due to drug use. He completed a automotive spare parts apprenticeship and worked in this industry for 11 years. Upon relocating to live with his father, the offender found it difficult to find employment in this field, so he worked as a white goods delivery driver for several years until he was diagnosed with cancer in 2019. Since that time, the offender has had little employment but has been casually employed as an off-sider to his father in property maintenance.

32. As to social, intimate relationships and sexual development, the offender denied any serious problems in his early social development. He kept a small group of friends and as an adult he maintained his prosocial friendship group at a distance so that his substance abuse problems would be less apparent. However, he estimated that 70% of his social and recreational behaviour in adulthood revolved around substance use.

33. The offender reported several intimate partner relationships, the most significant of which were with the mothers of the complainants. These relationships lasted 13 and 7 years respectively. He has had no relationship with two children from the first relationship since it ended in 2013. The offender told Mr Sheehan the relationships revolved around drug use and had been extremely volatile. He said that his partner in the later relationship was sexually promiscuous, which troubled him. He commenced his current relationship in 2021 but is unable to visit his partner at her home or spend time with her children. He described this relationship as positive.

34. Mr Childs denied any history of childhood sexual abuse but believes that his mother’s disclosures have shaped him negatively, although he was unable to describe exactly how. He described what Mr Sheehan says is a somewhat precocious sexual awareness, but denied sexual preoccupation or hyperarousal, although he did note that the use of stimulants had increased his libido. The offender reported frequent casual sexual encounters after the end of his first long term relationship and described higher levels of sexual adventurism. He reported using pornography bingeing to cope with high stress and would watch porn for 4-6 hours at a time.

35. As to substance use, the offender reported a long history from the age of 18 with habitual use of cannabis and amphetamine. This progressed to intravenous use of amphetamine and methylamphetamine, over 1.5grams per day. Mr Childs reported that he was dependent on cannabis and amphetamine, and that he experienced withdrawal symptoms when he did not use. There were periods where the offender would abstain for up to two years but he would generally relapse. The offender has never attended a rehabilitation program, but attended twenty Narcotics Anonymous sessions in his early thirties.

36. During his relationship with the mother of the second complainant, the offender reportedly abstained from cannabis and amphetamines but consumed at least two bottles of wine every day. He relapsed into stimulant use at the end of that relationship. He denied use of illicit substances since April 2021 and Mr Sheehan reports that he is now in sustained remission from drugs and that his alcohol consumption has moderated. He would consume two glasses of wine every 1 to 3 days.

37. With respect to the offender’s medical and psychiatric history, Mr Sheehan notes that Mr Childs reported renal necrosis during his first 11 years until it was successfully resolved by surgery. In 2019 the offender was diagnosed with testicular cancer which later spread to his lymph nodes. He had surgical removal of the effected testicle and four courses of chemotherapy.

38. The offender denied any childhood psychiatric disorders and there was no history of admissions or prescribed medications. He has experienced some quasi-psychotic phenomena during extended amphetamine-induced wakefulness which resolved by obtaining sleep. The offender reported a period of hopelessness and despair in 2012-2013 after a relationship failure. He experienced suicidal ideation and presented to Campbeltown Hospital but was discharged on the same day with a prescription for the anti-depressant Sertaline. In Mr Sheehan’s opinion, this description is consistent with mood stabilisation accompanying substance abuse. Further, the offender described a history of using sexual coping to manage stress and low mood, but he denies that his sexual offending was associated with any periods of pronounced depression.

39. In Mr Sheehan’s opinion, the offender does not currently present with any indicators of mood disorder, but he meets diagnostic criteria for Polysubstance Use Disorder which he notes is moderate and in sustained remission. There are no compelling indicators, in Mr Sheehan’s view, of diagnosable personality disorder. Neither are there features of antisocial personality orientation. Mr Sheehan’s opinion is that Mr Childs’s offence behaviour constitutes disordered sexual behaviour, being grossly inappropriate and occurring repeatedly over several years in two different family settings. A diagnosis of Paedophilic Disorder is available due to the offender’s offences being against females younger than 13 years, over a period exceeding six months. However Mr Sheehan’s view is that the offences committed may be more underpinned by impoverished sexual boundaries than fixed or primary sexual interest in children.

40. When discussing the offences with Mr Childs, Mr Sheehan says that the offender acknowledged them in a way broadly consistent with the agreed facts. Mr Sheehan reports partial insight on behalf of the offender with respect to the internal process by which he came to commit the offences. However, he was able to identify sexual frustration and drug use as background factors. The offender also described how he had wrongfully interpreted the first complainant’s actions as sexually motivated. This was a distorted perception from which his further sexual offending had grown. The offender told Mr Sheehan he felt that his offences against the other complainants were also motivated by “lashing out” against his partner for being unfaithful to him. Mr Sheehan is of the opinion that the offender shows the beginnings of insight into his offending, but will need further work to fully understand the thoughts, beliefs and habits that have sustained his offending over time. The offender was able to identify that his behaviour caused “unnecessary fear.”

41. Taking into account the offender’s static and dynamic risk factors, in Mr Sheehan’s opinion, the offender is in the middle range for risk of sexual reoffending. Mr Sheehan says the offender has achieved sustained remission from illicit substances and that this is an important step toward managing his risk of reoffending. Further, in Mr Sheehan’s opinion, the offender would benefit from low intensity AOD intervention and psychological treatment with a therapist to address the other dynamics of his offending. Mr Sheehan says that it is to the offender’s credit that he has sought this out independently over the last year.

Exhibit 4

42. Dr Mario Farina, who is the offender’s treating clinical psychologist, wrote a letter to the court dated 6 October 2022. At the time of writing, Dr Farina had four occasions of contact with the offender since his referral in May 2022 under a Mental Health Care Plan. The offender had asked Dr Farina to assist him with his abstinence from illicit drug use and the moderation of alcohol use. He described to Dr Farina complex post-traumatic stress for which he has self-medicated in the past with abusive drug and alcohol use.

43. Dr Farina observes that during their contact the offender said that the offending was committed under the influence of alcohol and drugs (cannabis and methamphetamine) and that he is ashamed of and remorseful for his behaviour. The offender is committed to maintaining abstinence by making amends for his behaviour and guaranteeing it does not reoccur in the future. The offender hopes to apologise to the victims for the trauma his behaviour caused.

44. At the date of the letter, the offender presented with mild levels of depression, moderate levels of anxiety and non-significant levels of stress on the DASS-21. No suicidal ideation was expressed. He attributed an improvement in his psychological functioning to his current abstinence from drugs and moderation of alcohol consumption. The offender told Dr Farina that he sees his abstinence from drugs as evidence of his commitment to making amends.

45. Dr Farina says that further sessions will involve cognitive and behavioural strategies and that he will continue to engage the offender in supportive psychotherapy to address his childhood and adolescent complex trauma.

Exhibit 5

46. Ms Powell, who is the offender’s partner says that they met in May 2021 and quickly fell deeply in love. The offender keeps to himself and outside of work as a groundsman, his interests are involved with music. More recently, Ms Powell says the offender has started writing as a means to heal and release the shame and hurt he has carried for many years.

47. Ms Powell says the offender maintains very strong relationships with his siblings and father. He takes care of his father, cooking for him every night. She says that the offender’s sisters look to him for guidance and he has helped them with business ideas, constructive criticism and sharing his skills.

48. Furthermore, Ms Powell says that the offender is an honest, considerate, deep thinking and generous person. She has witnessed the offender’s struggles with his past actions, his inner turmoil and regret, his confusion, his deep remorse and his fear of what the future holds. She asks the court to take into account her observations of the offender’s good character.

Exhibit 6

49. The Intake Assessment Form and Offence Mapping documents were completed by Shelley Hadlow on 12 May 2022. The offender noted that he had cancer treatment in 2019 which hit him hard, both emotionally and physically. He felt shame, pain and embarrassment and was sorry. He understood that “sorry” was not enough to fix the situation. He expressed a wish to change his behaviour and do all the right things to help him identify what is wrong so that he does not repeat the conduct. The Offence Mapping for each offence contains a great deal of commentary. The offender had no recollection of events, but accepted that he was guilty. He wanted to get back at AB (with CD and EF) because of her infidelity. The offending with KL occurred when his memory was clouded by drug use. He had once thought, wrongly, that KL was sexually curious which looked like consent. He accepted the police facts. He would undo it all if he could. He accepts full responsibility.

Exhibit 7

50. The Case Note authored by Ms Hadlow contains the information gathered from exhibit 6 and entered into the computer system. It was noted that the offender had said that he had an “extreme absence of emotional intelligence and unfortunate behaviour that stemmed from unresolved trauma.” Ms Hadlow believed that Mr Childs came across as a deep and careful thinker who chose his words wisely.

Exhibit 8

51. Exhibit 8 contains three case note entries by Mr Bentrup. He spoke with offender’s partner. He found the offender to be suitable for community service. He reviewed the documents prepared by Ms Hadlow and interviewed the offender. The offender told Mr Bentrup, inter alia, that after his mother withdrew from the family, he was left to raise his four younger siblings. He had made several attempts to engage with a psychologist without success, and through no fault of his own.

Victim Impact Statements

52. The victims’ statements were read out in court. The court acknowledges the trauma suffered by each victim and their courage in speaking out. It is hoped that each will go on to have productive lives in which they make contributions to our community.

Ms Hadlow’s evidence

53. Shelley Hadlow authored exhibits 6 and 7. I accept that she wrote the words in those documents and formed the opinions and conclusions contained in them. She conceded that the offender had been candid with her, and she accepted that he had some insight to his offending.

Mr Bentrup’s evidence

54. Mr Bentrup is the author of the SAR and exhibit 8. I accept that he wrote the words in those documents and formed the opinions and conclusions contained in them. He too conceded that the offender had been candid with him, and he accepted that he had some insight to his offending.

The Offender’s evidence

55. The offender gave evidence (at length) in the proceedings. He was cross-examined by Mr Coulton for the Crown. I observe that he gave some evidence against his interest.

56. I note that when asked about the SAR, the offender clarified a number of matters contained in the report. He confirmed that the offending against CD and EF was in part a reprisal for AB’s infidelity in their relationship, which he recognised was no excuse.

57. Although the SAR notes that the offender’s report of his mother’s disclosure to him about her sexual abuse and that it was the observation of Mr Bentrup that the offender used this as a reason for the offending, in evidence the offender said that he does not now believe this to be the case, but rather it had an impact on his own psychology insofar as he was a child exposed to concerning adult themes and that he was unprepared for his mother’s disclosure to him, taking into account his young age of 7 years.

58. To the extent that the SAR says that the offender minimised the offending because of substance abuse, Mr Childs said in evidence that he does not mean that as an excuse, but rather he believes that his substance use was a significant contributor to his disinhibiting behaviour in retrospect. This is something that he now thinks about. It has been a motivator for his seeking help with Dr Farina. He gave evidence that he cannot recall the last time he used illicit drugs, stating it was “some time ago.”

59. As to the SAR’s noting that the offender attributed blame toward his first victim by claiming that she had impliedly consented, saying to a Community Corrections Officer that the victim “must have wanted it,” and “I didn’t have to force her,” he now says that this was a view he held at the time of offending, but that he no longer holds. So much is clear from a reading of the primary documents.

60. Mr Childs gave evidence in a very understated and candid manner. He clearly had a disadvantaged childhood, and one that he is only just becoming aware of. This is not surprising taking into account the normalisation of these indicia of disadvantage. He gave evidence of being choked at 3 years of age and being beaten by his mother throughout his childhood. He recalled that he inserted objects into his anus at 3 or 4 years of age whilst hiding under a bed, in the context of being in fear of the grandfather who had sexually abused his mother and into whose care he was left periodically. The offender was masturbating by age 7 and was clearly demonstrating inappropriate sexualised behaviour. It is possible that the offender was sexually abused by his grandfather. His own household was violent, and his mother abused alcohol. By age 18 he was left in a position where his mother had withdrawn as a parent, his father was not permitted to be present because of an AVO and he was left to care for his younger siblings. That the offender is only now discovering the full extent of the abnormality of his background, as it unfolds during his journey of self-realisation is unsurprising.

61. I observe that the offender did not minimise his offending in his evidence before me. Neither did he resile from the substance of the agreed facts. I accept that there may have been misunderstandings between him and the Community Corrections officers. In my opinion, Mr Childs expressed appropriate remorse at length. His affect was flat and he appeared to choose his words carefully, never attributing blame on anyone other than himself. He described a childhood that was marred in particular by the inappropriate behaviour of his mother, who confided in him repeatedly (from the age of 7) about her own experience as a victim of sexual abuse. My understanding of this evidence was that Mr Childs did not attempt to excuse himself, but rather that he was beginning to understand how a pattern of his behaviour manifest itself, first many years ago. In my view, this demonstrates evolving insight into his offending. I expect that with intensive psychological intervention, his insight will improve.

The offender’s younger sister’s evidence

62. The offender’s younger sister corroborated much of her brother’s evidence with respect to the household in which they grew up. She is clearly the more self-actualised of the two. Her memories were of a growing up in a household of significant dysfunction. She confirmed that her brother took over as a parent when he was about 18 when their mother effectively abandoned them. I accept her evidence in its entirety.

63. The offender’s younger sister also observed that the offender had sought help by himself and that he had made several unsuccessful attempts to access psychological treatment before Dr Farina accepted him as a patient.

Objective Seriousness

64. All of the offending is extremely serious. However I am required to assess where on the spectrum of seriousness each offence lies:

Sequence 20:

65. Mr Wong submitted that this offending fell just below the mid-range of objective seriousness, for the following reasons:

1. The offending did not involve any physical force, coercion or violence;

2. The offending was not accompanied by emotional manipulation, for example the use of guilt or fear in order to compel compliance;

3. The offending was relatively short;

4. There is no evidence that physical pain was occasioned;

5. There is no evidence of any sophisticated planning. The planning involved was merely that required to commit the offence itself; and

6. The offence encompasses offending against children aged 0 to 10 years and the victim was at the upper end of that age range, being 9 years old.

66. The Crown submits that the objective seriousness is above the mid-range because the offence involved skin to skin contact of the genitalia after having the victim remove her underwear.

67. The offence is aggravated by the offender’s breach of trust and authority and the fact that the offending occurred in the home of the victim.

68. I take into account the submissions of counsel and the legislative yardsticks of the maximum penalty of 10 years and the standard non-parole period of 8 years. In my opinion, the offending sits at the mid-range of objective seriousness.

Sequence 10

69. Mr Wong submitted that the objective seriousness of this offence sits at the mid-range of objective seriousness, for the following reasons:

1. The offending involved a very limited degree of physical force as the offender pushed the victim onto her knees and guided her hands up and down his body;

2. The offending was not accompanied by emotional manipulation. However the offender locked the bathroom door;

3. The offending was relatively short;

4. There is no evidence that physical pain was occasioned;

5. There is no evidence of any planning as the offending occurred when the victim entered the bathroom; and

6. The offence encompasses offending against children aged between 10 and 16, and the victim was at the lower end of that range as she was 10 years old.

70. The Crown submitted that the objective seriousness is at the higher end of the mid-range because of the nature of the act and because the door was locked.

71. The offence is aggravated by the offender’s breach of trust and authority and the fact that the offending took place in the victim’s home.

72. I take into account the submissions of counsel and the legislative yardsticks of the maximum penalty of 7 years and the standard non-parole period of 5 years. In my opinion, the offending sits just above the mid range of objective seriousness.

Sequence 11

73. Mr Wong submitted that this offending lies at the mid-range of objective seriousness because:

1. The offending did not involve any physical force, coercion or violence;

2. The offending was not accompanied by emotional manipulation;

3. The offending was relatively short;

4. There is no evidence that physical pain was occasioned;

5. There is no evidence of any sophisticated planning. The planning involved was merely that required to commit the offence itself;

6. The offence encompasses offending against children aged 10 – 16 years and the victim was at the lower end of that range being between 10 – 11 years; and

7. The act of ejaculation exposed the victim to an overtly sexual act which makes the offending more objectively serious than would otherwise be the case.

74. Mr Coulton agreed with Mr Wong’s submissions.

75. The offence is aggravated by the offender’s breach of trust and authority and the fact that the offending took place in the victim’s home.

76. I take into account the submissions of counsel and the legislative yardsticks of the maximum penalty of 7 years and the standard non-parole period of 5 years. In my opinion, the offending lies at the mid-range of objective seriousness.

Sequence 17

77. Mr Wong submitted that this offending fell just below the mid-range of objective seriousness because:

1. The offending did not involve any physical violence. It was conceded that there was a limited degree of physical force as the offender tried to force his hands between the victim’s legs and used the force of his weight to continue the offending;

2. The offending was not accompanied by emotional manipulation, for example the use of guilt or fear in order to compel compliance;

3. The offending was relatively short;

4. There is no evidence that physical pain was occasioned;

5. There is no evidence of any planning beyond that required to commit the offence itself; and

6. The offence encompasses offending against children aged 10 - 16 years and the victim was in the middle of the range at 13 years old.

78. The Crown submitted that this offending sits at the mid-range because the victim told the offender to stop but he continued nevertheless, and he also bit and sucked the victim’s breasts after rubbing his penis against her genitals.

79. The offence is aggravated by the offender’s breach of trust and authority and the fact that the offending occurred in the victim’s home.

80. I take into account the submissions of counsel and the legislative yardsticks of the maximum penalty of 10 years and the standard non-parole period of 8 years. In my opinion, the offending sits at the mid-range of objective seriousness.

Sequence 19

81. Mr Wong submitted, and the Crown agreed, that this offending sits just below the mid-range of objective seriousness for the following reasons:

1. The offending did not involve any physical force, coercion or violence;

2. The offending was not accompanied by emotional manipulation;

3. The offending was relatively short;

4. The touching of the buttocks did not involve skin on skin contact;

5. There is no evidence that physical pain was occasioned;

6. There is no evidence of any sophisticated planning. The planning involved was merely that required to commit the offence itself; and;

7. The offence encompasses offending against children aged 10 to 16 years, the victim was at the lower end of that range at 11 years old.

82. The offence is aggravated by the offender’s breach of trust and authority and the fact that the offending took place in the victim’s home.

83. I take into account the submissions of counsel and the legislative yardsticks of the maximum penalty of 10 years and the standard non-parole period of 8 years. In my opinion, the offending sits at just below the mid-range of objective seriousness.

Sequence 7

84. It was submitted by Mr Wong that this offending lies below the mid-range of objective seriousness because:

1. The offending did not involve any physical force, coercion or violence;

2. The offending was not accompanied by emotional manipulation, for example the use of guilt or fear in order to compel compliance;

3. The offending was relatively short;

4. The offending did not involve the touching of any genitalia;

5. There is no evidence physical pain was occasioned;

6. There is no evidence of any sophisticated planning. The planning involved was merely that required to commit the offence itself; and

7. The offence encompasses offending against children aged 10 to 16 years and the victim was in the middle of that range being 13 years old.

85. The Crown submits that the offending is at least in the mid-range of objective seriousness because the victim was asleep.

86. The offence is aggravated by the offender’s breach of trust and authority and the fact that the offending took place in the victim’s home.

87. I take into account the submissions of counsel and the legislative yardstick of the maximum penalty of 10 years. In my opinion, the offending sits at just below the mid-range of objective seriousness.

Sequence 6

88. The Crown agreed with Mr Wong’s submission that this offending sits at the lower-range of objective seriousness for the following reasons:

1. The offending did not involve any physical force, coercion or violence;

2. The offending was not accompanied by emotional manipulation, for example the use of guilt or fear in order to compel compliance;

3. The offending did not involve the touching of sexualised parts of the victim’s body such as the genitals, buttocks or breasts;

4. There is no evidence that physical pain was occasioned;

5. There is no evidence of any sophisticated planning. The planning involved was merely that required to commit the offence itself; and

6. The offence encompasses offending against children aged 10 – 16 years and the victim was just below the middle of that range at 12 years old.

89. The offence is aggravated by the offender’s breach of trust and authority and the fact that the offending took place in the victim’s home.

90. I take into account the submissions of counsel and the legislative yardstick of the maximum penalty of 10 years. In my opinion, the offending sits at the low range of objective seriousness.

91. As will shortly be seen, I am satisfied that the offender’s moral culpability is reduced given his background of disadvantage.

Subjective Circumstances

Plea of Guilty

92. The offender pleaded guilty at the first opportunity in the Local Court and there is no dispute that he is entitled to a 25% discount for his early plea of guilty.

Prior Criminal History & Character

93. The offender has no prior criminal history and except for the offending set out in the Agreed Facts has led a blameless life. For the purposes of this sentence, I accept that the offender is entitled to some leniency because of this factor. As to his prior good character, the offender was not of good character at any time since his first offending many years ago, so that his previous good character is of little weight on sentence.

Remorse

94. Mr Wong submitted that the offender’s early plea of guilty and genuine expressions of remorse noted in the SAR and in the report of Mr Sheehan are reflections of the remorse demonstrated by the offender. Mr Wong conceded that contrition has only materialised this year, and after the offender began seeking psychological treatment following his arrest.

95. In the report of Mr Sheehan (exhibit 3), he reported that the offender demonstrated partial insight but that he will need further work to fully understand the thoughts, beliefs and habits that sustained his offending behaviour over time. The offender was however, able to identify that his behaviour was damaging to the victims and he told Mr Sheehan that “it could affect their ability to trust, to trust men, male figures. It could affect their self-esteem and cause confusion and uncertainty in relationships”.

96. I observe that the offender gave evidence during the sentencing proceedings when he expressed appropriate remorse for his actions.

97. In my opinion, the offender has accepted responsibility for his actions and has appropriately acknowledged the injury caused to his victims by his actions. I accept that his remorse is genuine.

Time in custody

98. The offender spent 13 days in custody after his arrest before being granted bail. It is agreed that his sentence should be backdated by 13 days.

General Deterrence and denunciation

99. The Crown submits that deterrence, protection of the community and denunciation are key factors in this sentencing exercise and he points to the comments of Bellew J in R v Lau [2022] NSWCCA 131 at [178]:

…It has been observed by this Court, on more than one occasion, that a message must be sent to those who offend against children intentionally and repeatedly that their actions will not be tolerated, and that they will receive significant punishment…

100. Mr Wong conceded that general deterrence is of particular significance with respect to sexual offences committed upon children, that it looms large in this sentence and that the offender’s actions must be denounced. Further, it was conceded that the offender needs to be adequately punished and that the sentence must recognise the harm done to each victim and the community more broadly. However, it was Mr Wong’s submission that less weight ought to be afforded to general deterrence and that the offender’s rehabilitation ought to be promoted.

101. There is no doubt that general deterrence has a significant role to play in this sentencing exercise, so serious is the offending. I acknowledge that the offender’s background and rehabilitation are also relevant factors (to which see below).

Personal Deterrence and Prospects of Rehabilitation

102. It was submitted on behalf of the offender that he has positive prospects of rehabilitation. The offender pleaded guilty at the first opportunity, has no other criminal history and he independently sought psychological treatment over the last year.

103. The Crown conceded that the fact that the offender sought out Dr Farina is factor favourable to his prospects of rehabilitation.

104. I note the various risk assessments that are part of the evidence. None is determinative in my opinion. The offender’s evidence demonstrated that his insight into his offending is a work in progress and the disclosures he made demonstrates that he is still processing events in his past which led to and may have contributed to his offending. I find that he has evolving insight into his offending.

105. Taking all matters into account, I cannot find that the offender’s prospects of rehabilitation are good, and that he is unlikely to re-offend. On the other hand, that the offender has acknowledged his wrongdoing, that he is remorseful and that he is willing to engage with mental health and substance abuse professionals is very promising for his ultimate rehabilitation. In my opinion, whilst his current prospects are guarded, if he continues down the path of acknowledgment and (to use his words) emotional intelligence, in my opinion his prospects of rehabilitation will one day be good

Background of Disadvantage

106. As the offender gave evidence – in both examination in chief and in cross-examination – his background of disadvantage became more and more apparent.

Exposure to sexual themes and sexualised behaviour

107. Mr Wong relied upon the report of Mr Sheehan to submit that the offender’s exposure to the disclosures of his mother’s sexual abuse (beginning at age 7) and its negative consequences may have contributed to the offender’s impoverished sexual boundaries as identified by Mr Sheehan in his report. Mr Wong submitted that his mother’s reliance on the offender as a type of sounding board when he was a young child was inappropriate and that her disclosures were made with no moral context or guide for the offender as to whether that behaviour was appropriate. So much was confirmed by Mr Childs in evidence. It was submitted that the offender was left to interpret this information about his mother’s sexual abuse in a moral vacuum. I accept this was the case.

107. The offender gave evidence, which I accept, that at 3 years of age he spat on his fingers and was inserting objects like small toys and AA batteries in his anus whilst hiding under a bed. In the report of Mr Sheehan, the offender reported that he began to masturbate at age 7. In cross-examination by the Crown, Mr Childs (candidly in my view) said that memories were only recently coming to the fore whilst he was undergoing psychological treatment by Dr Farina.

108. The offender holds a belief that he was sexually abused by his maternal grandfather. He does not have an actual memory of abuse.

109. These disclosures, in part, occurred as the offender gave evidence and on one occasion he wept. It is well understood that late complaint of sexual abuse is not uncommon.

110. On the evidence, I cannot find that the offender was sexually abused by any person. However, I find that he was exposed to sexual themes and sexualised behaviour at an early age in his development which has had a negative effect on him and constitutes disadvantage in his childhood.

Homelife

112. The offender gave evidence that at age 18, as the eldest of his sibship, he had to assume carer responsibilities for his siblings. This was at a time of his parents’ marriage breakdown, when his mother took an AVO out against his father (which prevented him from seeing his children). She withdrew from the household and locked herself in her bedroom. The offender says that he performed tasks such as buying groceries and tending to whatever his siblings needed at that moment. The offender’s younger sister corroborated this evidence and said that her brother would take her and her younger brother in particular to the park, would take them wherever he went so they would be supervised. The offender’s evidence about this time was understated, and in my opinion he still does not appreciate how unusual this situation actually was.

113. Mr Childs also said that his mother used alcohol to excess which was confirmed by his sister. Further, he gave evidence, which I accept, that he was strangled by his mother at about age 3 that left bruising for two weeks, that he was hit with a jug cord and similarly endured severe corporal punishment by his mother when he was a child.

114. The offender has been exposed to domestic and family violence. As Fullerton J said in Perkins v R [2018] NSWCCA 62 at 99:

The insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented. 

115. I accept that the offender’s dysfunctional homelife contributes to his background of disadvantage.

Addiction

116. Mr Wong submitted that the offender’s exposure to the factors noted above made the offender susceptible to addiction. I note that the offender says that he was introduced to intravenous drug use by his partner when he was about 18 years old (which I accept) and which is the same time that his mother retreated to her bedroom.

117. I accept that Mr Childs’s descent into substance abuse at 18 years of age, and which has only recently ceased, was contributed to by his background of disadvantage.

118. I must determine whether the disadvantage suffered by Mr Childs reduces his moral culpability. In my opinion, there is more than ample evidence to establish the offender’s background of deprivation, and I give it full weight in this sentencing exercise: Bugmy v the Queen (2013) 249 CLR 571 at 44.

119. I note the oft cited quote of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69]:

I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.

120. This is such a case. That is not to say that the disadvantage suffered by the offender means that he bears no moral culpability. It is just to say that it is diminished, and I take it into account as a matter to synthesise on sentence.

Covid-19

121. The court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence.

122. I observe that at the date of this sentence there is yet another wave of Covid-19. Correctives NSW has imposed a number of protective measures to prevent and isolated outbreak of Covid-19 amongst the prison population. These conditions include locking down inmates, suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities. These measures, though designed to protect inmates against contracting the virus, will necessarily negatively impact the quality of life enjoyed by the offender. I take the pandemic into account as a matter to synthesise on sentence.

Totality

123. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

124. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. The ultimate sentence must be appropriate to the totality of the offender’s offending and his personal circumstances. In my opinion, there should be some accumulation in this case.

125. I have also considered the principle of proportionality.

Special Circumstances

126. The Crown did not disagree that special circumstances exist in the offender’s case.

127. Given the terms of s54B(3) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole periods are the special circumstances that I find, that this is the offender’s first time in custody and his rehabilitation would be assisted by a longer parole period on supervision. I have deviated to a ratio of 61.5% because of special circumstances.

Threshold

128. Having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Sentencing Act has been crossed, with respect to each count. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Sentence

129. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given in my opinion the offender’s urgent need for psychiatric review and ongoing rehabilitation.

130. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

131. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period (if any) and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen [2005] HCA 25.

132. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved. Taking all matters into account, as I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment of 6 years and 6 months with a non-parole period of 4 years.

133. As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

1. For Sequence 20, I would have imposed a sentence of 2 years 3 months with a non-parole period of 1 year and 4 months after a discount of 25% for the plea of guilty.

2. For Sequence 10, I would have imposed a sentence of 1 year 6 months and a non-parole period of 11 months after a discount of 25% for the plea of guilty.

3. For Sequence 11, I would have imposed a sentence of 1 year 5 months (rounded down) and a non-parole period of 10 months after a discount of 25% for the plea of guilty.

4. For Sequence 17, I would have imposed a sentence of 2 years and 3 months with a non-parole period of 1 year and 4 months after a discount of 25% for the plea of guilty.

5. For Sequence 19, I would have imposed a sentence of 1 year 6 months (rounded down) and a non-parole period of 11 months after a discount of 25% for the plea of guilty.

6. For Sequence 7 I would have imposed a sentence of 18 months after a discount of 25% for the plea of guilty.

7. For Sequence 6, I would have imposed a sentence of 9 months after a discount of 25% for the plea of guilty.

134. Mr Childs, please stand.

Orders

135. I convict you of:-

1. Sequence 20, indecent assault child under 10 years contrary to section 61M(2) of the Crimes Act;

2. Sequence 10, indecent assault child under age 16 contrary to section 61M(1) of the Crimes Act;

3. Sequence 11, indecent assault of child under age 16 contrary to section 61M(1) of the Crimes Act;

4. Sequence 17, indecent assault of child under the age of 16 contrary to section 61M(2) of the Crimes Act;

5. Sequence 19, aggravated indecent assault of child age 10-16 years contrary to section 61M(2) of the Crimes Act;

6. Sequence 7, sexual touching child age 10-16 years contrary to section 66DB(a) of the Crimes Act;

7. Sequence 6, sexual touching child age 10-16 years contrary to section 66DB(a) of the Crimes Act;

136. I sentence you to an aggregate term of imprisonment of 6 years 6 months. I have backdated your sentence by 13 days.

137. Your head sentence will expire on 2 June 2029. Your non-parole period will expire on 2 December 2026 on which date you will be eligible to be released to parole.

138. The indicative sentences I would have imposed are as follows:-

1. For Sequence 20, I would have imposed a sentence of 2 years 3 months with a non-parole period of 1 year and 4 months after a discount of 25% for the plea of guilty.

2. For Sequence 10, I would have imposed a sentence of 1 year 6 months and a non-parole period of 11 months after a discount of 25% for the plea of guilty.

3. For Sequence 11, I would have imposed a sentence of 1 year 5 months (rounded down) and a non-parole period of 10 months after a discount of 25% for the plea of guilty.

4. For Sequence 17, I would have imposed a sentence of 2 years and 3 months with a non-parole period of 1 year and 4 months after a discount of 25% for the plea of guilty.

5. For Sequence 19, I would have imposed a sentence of 1 year 6 months (rounded down) and a non-parole period of 11 months after a discount of 25% for the plea of guilty.

6. For Sequence 7 I would have imposed a sentence of 18 months after a discount of 25% for the plea of guilty.

7. For Sequence 6, I would have imposed a sentence of 9 months after a discount of 25% for the plea of guilty.

139. Mr Childs, do you understand the orders that I have made?

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Decision last updated: 25 January 2023