R v Clarke

[2024] NSWDC 251

District Court

New South Wales

Medium Neutral Citation:

R v Clarke [2024] NSWDC 251

Hearing dates:

13-27 November 2023, 9 May 2024

Date of orders:

9 May 2024

Decision date:

09 May 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 11 years with a NPP of 7 years (25/11/23-24/11/30).

I find special circumstances.

The indicative sentences are:

Count 1 Incite child under 10 to commit indecent act – 10 months

Count 2 Sexual intercourse under 10 – 7 years 6 months with NPP 4 years 9 months.

Statutory alternative to Count 3 Sexual intercourse 10-14 – 5 years with NPP 3 years 2 months.

Statutory alternative to Count 4 Sexual intercourse 14-16 – 4 years 3 months.

Count 5 Aggravated sexual intercourse 14-16 – 5 years with NPP 3 years 2 months.

Count 6 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.

Count 7 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.

Count 8 Aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.

Count 10 Assault child with intent to commit aggravated sexual intercourse 14-16 – 4 years 6 months with NPP 2 years 10 months.

Count 11 Aggravated sexual intercourse 14-16 – 4 years 8 months with NPP 2 years 11 months.

Catchwords:

Crimes – Sentence – Act of indecency towards child under 10 – Aggravated sexual intercourse with child under 10 – Sexual intercourse with child 10-14 – Aggravated sexual intercourse with child 14-16 – Aggravated assault child with intent to have sexual intercourse

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Gavel [2014] NSWCCA 56

Category:

Sentence

Parties:

NSW DPP – Crown
Brett Darrell Clarke - Offender

Representation:

Ms J Krippner for Crown
Mr S Doupe for Offender

File Number(s):

21/251521

Publication restriction:

Statutory non-publication of the identity of the complainant

REMARKS ON SENTENCE

1. The offender Mr Brett Clarke stood trial before a jury over eleven days between 13 and 27 November 2023. On that latter date, the jury returned guilty verdicts on the following offences for which the offender must now be sentenced.

2. Count 1 which is an offence under s 61O (2) of the Crimes Act 1900 of committing an act of indecency towards a child under ten years namely, seven years. The maximum penalty for that is seven years imprisonment.

3. Secondly, count 2 which is an offence of sexual intercourse with a child under the age of ten years, namely, seven years in circumstances of aggravation, that being an offence under s 66A (2), the maximum penalty for which is life imprisonment and which attracts a standard non-parole period of fifteen years.

4. Thirdly, the statutory alternative to count 3 which is an offence of sexual intercourse with a child above the age of ten but under fourteen years, the maximum penalty for which under s 66C (1) is sixteen years imprisonment and a seven-year standard non-parole period is specified.

5. Next, the statutory alternative to count 4 which is an offence under s 66C (3) of sexual intercourse with a child above the age of fourteen but under the age of sixteen, the maximum penalty being ten years imprisonment.

6. Next, count 5 being an offence of sexual intercourse with a child above fourteen but under sixteen years of age in circumstances of aggravation namely, being under authority, that being an offence under s 66C (4), the maximum penalty for which is twelve years imprisonment and a standard non-parole period of five years is specified.

7. Count 6 is an offence of sexual intercourse with a child above fourteen but under sixteen years of age, again, in circumstances of aggravation namely, being under authority. It is an offence under s 66C (4) and which attracts a maximum penalty of twelve years imprisonment with a standard non-parole period of five years.

8. Count 7 which is an offence of the same character and which carries the same maximum penalty and standard non-parole period.

9. Count 8 which is another offence of the same character under the same section which carries the same maximum penalty and standard non-parole period.

10. Count 10 which was an alternative count in the indictment to count 9, this being an offence under s 66D of the Crimes Act of assaulting a child with intent to commit an offence of sexual intercourse in circumstances of aggravation namely, being under authority, the maximum penalty being twelve years imprisonment and a five-year standard non-parole period is specified.

11. And finally, count 11, being an offence under s 66C (4) of aggravated sexual intercourse with a child above fourteen but under sixteen, the maximum penalty being twelve years imprisonment and a standard non-parole period of five years being specified.

12. The maximum penalties, as well as the standard non-parole periods where relevant, are important guideposts in the sentencing exercise to which I have had regard.

FACTS

13. The facts for sentence are to be determined by me based on the evidence at trial but must be consistent with the jury’s verdicts. Any matters in aggravation need to be proven beyond reasonable doubt whereas matters in mitigation need only be established on the balance of probabilities. The Crown has helpfully provided a summary of the trial evidence which, with the possible exception of one aspect which relates to count 4, is essentially accepted on behalf of the offender to represent an accurate summary of the facts that appear to have been accepted by the jury.

14. In summary, those facts are as follows. The offender was born in November 1985 and the victim born in June 2006.

15. I should just pause to indicate that there is a statutory prohibition against any publication which might identify the complainant to whom I will refer as the victim in these remarks.

16. There was a twenty-one-year age gap between the victim and the offender. At all relevant times, the victim lived with his parents and younger siblings. The victim had known the victim’s father since they were children, and the offender had remained a friend of the family. He was referred to by the victim and his siblings as “Uncle Brett”.

17. In about 2010, when the victim was aged about four, his parents bought a house in a suburb near Tamworth. At that time, the offender was living in Tamworth with his partner and her daughter who was about eight years old. The offender’s mother also lived in Tamworth. In July 2010 the offender’s partner gave birth to a daughter who was about the same age as the victim’s younger sister and the two girls eventually became close friends. In about September 2010 the victim’s family moved to Sydney due to medical issues relating to one of their younger children but moved back to Tamworth, or the Tamworth area at least, in about October 2012. After the family moved back to Tamworth, they lived in a number of different homes over the decade up until 2021.

18. The victim’s father and the offender remained very close friends, and their families regularly socialised at each other’s homes. The offender was regarded as a trusted member of the victim’s family and the offender would often babysit the victim and his siblings when the parents had to work or were out of town. This would occur either at the offender’s house or at the victim’s house. The offender would also frequently come to the victim’s house for barbecues and sometimes stay the night.

19. The offences in counts 1 and 2 occurred when the victim was seven years of age and in Year 2 and the offender was aged twenty-seven to twenty-eight years. The offender was at the time babysitting the victim and his brother at the offender’s home. The offender called the victim into his bedroom where the offender was lying naked on the bed. The offender looked at the victim then at his own genitals and then back at the victim. The victim felt uncomfortable and left the room. After this, the offender came out of his bedroom dressed in jeans and a shirt and said to the victim words to the effect of, “If you ever want to do those things with me just ask.” These events in the bedroom where the offender was lying on the bed and acted as I have described are the subject of the count 1, commit act of indecency offence.

20. After this, the victim went back into the bedroom after the offender called to him and the victim sat on the bed. The offender then placed his penis into the victim’s mouth and gave the victim, “pointers,” about what to do while the victim sucked on the offender’s penis. This is the offence in count 2. In describing this offence, the victim said he was young and did not really think anything of it, and did not immediately tell anyone because he thought he had himself done something wrong. Also, when the victim was being picked up by his parents, the offender grabbed his arm and told the victim he was not to tell anyone because he could get into trouble and the victim could get into trouble. The victim said in his evidence that this kind of activity happened, “More times than I could count.”

21. Turning then to the statutory alternative to count 3. This offence of sexual intercourse with a child above the age of ten but under fourteen occurred on a date between January 2016 and February 2018 in the garage of the offender’s home. At the time the victim was aged between about nine and eleven years and the offender was about thirty to thirty-two years old. I note that the originally pleaded version of count 3 involved an alleged offence committed, “Under authority,” however, the jury clearly were not satisfied beyond reasonable doubt of this “authority” element and so the offender is to be sentenced on the basis of the statutory alternative.

22. On this occasion, the victim accompanied his family to a barbecue at the home of the offender and his partner. There were a number of children present along with their parents, including the victim’s parents and siblings. The victim and other children were playing in the garage and the adults were gathered inside the home. In the garage was a piano which belonged to the offender. While playing in the garage, the victim found a cap gun in a junk pile behind the piano and went to find the offender to ask if he had any caps. The offender told the victim that the caps were in the garage and the victim then went to the garage and searched but went back to the offender when he could not find any caps. The offender then accompanied the victim to the garage and walked to a shelf behind the piano, telling the victim that the caps were there and that the victim just had to look for them. At the time, a number of other children were playing together on the floor in front of the piano. The victim was positioned between the offender and the shelf behind the piano. He looked again on the shelf but, when he could not find the caps, he asked the offender to find them. The offender then said in response, “If you want them you have to suck me,” and pulled his penis out of his pants. The victim then complied and sucked on the offender’s penis while the offender remained standing behind the piano talking at times to the children on the other side of the piano and telling them not to come around to that side. After a while, the victim stopped sucking the offender’s penis and asked him again for the caps. The offender placed his penis back into his pants and reached up behind the victim and took some caps from a shelf and gave them to the victim without saying anything about what had just happened.

23. The next offence is the statutory alternative to count 4. The pleaded version of count 4 involved an allegation of an offence committed “under authority”, however, the jury clearly were not satisfied beyond a reasonable doubt of this “authority” element so the offender is to be sentenced on the basis of a statutory alternative which is of course absent the aggravating feature. This offence occurred between about August 2019 and August 2021 and was at one stage described by the victim as being the last time he could recall sexual contact occurring. In this period of time, the victim was aged between about thirteen and fifteen years. On this occasion, the offender had attended the victim’s family home for a barbecue in the evening and then slept overnight, as he had been drinking and could not drive home. The offender slept in one of the children’s bedrooms while the victim was in his own bedroom. The victim felt anxious when he went to bed, given that the offender was staying in the house. During the night, the offender entered the victim’s bedroom when he was asleep. Although this woke the victim up, he felt scared and rolled over onto his stomach and tried to go back to sleep. The victim subsequently awoke, lying on his back to the offender performing fellatio upon him. His pants and underpants had been pulled down to his knees. Although the victim felt afraid, he did not want to speak to the offender and pretended he was asleep. He rolled back onto his stomach hoping the offender would think him asleep and leave. The offender then flipped the victim’s body back over so he was again lying on his back and began sucking his penis again. Although the victim rolled back onto his stomach more than once, the offender flipped him onto his back and continued sucking his penis. After this, the victim ceased trying to roll over but continued pretending to be asleep. After some time, the offender stopped sucking the victim’s penis and left the room. It was agreed that because of the lack of evidence as to the precise age of the victim at the time of this offence, the relevant maximum penalty is under s 66C (3) and not s 66C (1).

24. Turning then to count 5, this offence occurred between May 2020 and June 2021 when the victim was aged between thirteen and fifteen years and the offender was about thirty-four to thirty-six years of age. The offence occurred at the home of the offender in Tamworth which had a swimming pool. The victim at the time was staying over at the house along with his siblings. The victim had been swimming with the other children in the pool. Around mid-morning, he came inside the house to watch TV and went looking for his younger brother who he had not seen for a while. The victim subsequently entered the offender’s bedroom. Although the victim could not recall other details leading up to this offence, he could recall that the offender asked him to put his penis into the offender’s “behind”, in other words, his anus and that the victim agreed to do this. The victim then placed his penis into the offender’s anus and had sexual intercourse with him. This caused pain to the victim but the offender told him to keep going. The victim continued with the anal intercourse but it started to hurt more and when he removed his penis from the offender’s anus, he saw that his penis was bleeding. There was no discussion about a condom and the victim did not wear a condom. The victim went to the bathroom and put toilet paper on his penis to stop the bleeding. He then went outside and jumped into the pool, thinking that the chlorine in the water might help but found that this caused him further pain.

25. The remaining offences, which are counts 6, 7, 8, 10 and 11, all took place during the same incident in August 2021 when the victim was aged fifteen and the offender aged about thirty-six. As the victim’s parents were working on Saturday, 6 August 2021 they arranged for the offender to babysit the victim and his siblings overnight at his home in Tamworth. On the Friday evening, the offender had dinner at the victim’s home. The victim had worked at a convenience store in Tamworth until about 7 o’clock that night. That evening, when he and his siblings were given the choice of going to stay with the offender or going the next morning, the victim chose to go to the offender’s house that evening for fear that if he was not there the offender may, “move on” to one or other of his siblings and he did not want them to have to endure what he had gone through. Earlier that year the victim had begun confiding, in general terms, to three close school friends about the sexual abuse he had been experiencing from the offender. Whilst the victim was still at home on the Friday evening, he sent a message in a group chat to his friends saying, “Not my parents inviting the guy that’s been sexually assaulting me for the past 8-10 years to dinner. Nope, not them", which was set out in exhibit 5, in the trial evidence.

26. Later that night, the offender drove the victim and his siblings to his home in Tamworth. On the way there, they stopped at a McDonald’s restaurant in South Tamworth, so that the victim could see one of his friends who was working there, as he wanted someone to know what was happening.

27. In the early hours of the next morning, the victim was in the lounge room where he intended to sleep. He was sending messages, however, to his three female friends in the group chat. One of these messages sought to explain the position he felt himself to be in. The messages recorded the following: “I might do something I’ll regret” and “if I don’t then he could turn around and murder me and my siblings, if I don’t everything true is I’m afraid of the consequences of me coming forward could have on others. And me not doing those things could affect my siblings lives.”

28. In that group chat, one of the friends responded, “Tell ya parents. I think ya need to ... they are here to help us especially with stuff like this. Because it’s not okay.” To this, the victim responded, “I will but not now they have enough to worry about”, and said that he was, “Going to pull an all nighter out of fear.”

29. During that night, the offender came out of his bedroom wearing a dressing gown and approached the victim, saying, “Are you coming in”, or words to that effect. The victim delayed a further 10 minutes whilst he continued messaging his three friends but then entered the offender’s bedroom and stood by the bed. The offender was lying on the bed, naked. The offender said something to the victim which he could not recall and then the victim removed his clothes and got onto the bed and lay on top of the offender’s stomach. The offender tried to kiss the victim’s face but he turned his head away and continued to lie there whilst the offender kissed his neck, which went on for five to 10 minutes.

30. More specifically, the facts involving count 6 were as follows: The offender asked the victim if he wanted to suck the offender’s penis and the victim began to do that but then stopped and told the offender to lock the door. This act of fellatio is the subject of count 6. The victim explained, when interviewed by police, that he did not want his siblings to have to see what was happening if they walked in.

31. The offender then got up and moved a wooden chest of drawers in front of the door to the bedroom, as there was no lock on the door. The offender then returned to the bed and shortly after this the offender told the victim that he wanted to “change positions”, or words to that effect. The offender then laid on his back on the bed with the victim sucking his penis while the victim lay on top of the offender, facing the opposite way, while they engaged in mutual fellatio. This went on for some time but the victim was unable to say how long.

32. These acts represent, respectively, the offences in counts 7 and 8.

33. The next offence is the alternative count 10 of which the jury convicted the offender. I note that this alternative count was expressed as an alternative to count 9 on which the jury returned a not guilty verdict.

34. The offence in count 10 arose after the offender asked the victim if he could penetrate the victim’s “bottom” with his penis. The victim, who wanted the incident to be over as soon as possible, agreed and the offender then looked for a condom but, when he could not find one, the victim supplied one from his own wallet. The offender, after placing the condom on his penis, lay face up on the bed while the victim positioned himself above the offender with his legs bent at the side of the offender’s body. The offender then moved the victim’s body downwards four or five times, trying to penetrate his anus. However, the victim complained that this was hurting him and the offender eventually stopped.

13. It is apparent that the jury had a reasonable doubt as to whether there was any penetration of the victim’s anus during this part of the incident but that the jury were satisfied beyond reasonable doubt of the alternative count 10, which involved an assault with intent to have sexual intercourse by reason of the offender’s actions in bringing his penis into contact with the outside of the victim’s anus.

14. Finally, count 11. After these events, the offender suggested that the victim put his penis into the offender’s anus. The victim did not feel comfortable with this but complied by getting up and standing at the end of the bed while the offender positioned himself lying face up with his bottom on the edge of the bed and his legs and feet raised and apart. The victim then had penile anal intercourse with the offender for some time. The victim did not wear a condom.

15. Every two minutes or so during this sexual intercourse, the offender asked him, “Have you come?” The victim did not know what to say to this and so the sexual intercourse just kept going and the last time the offender asked him this he just said, “Yes” and removed his penis. The victim was uncertain about whether he had ejaculated. The victim then picked up his clothes from the floor and after the offender removed the dresser from the door the victim walked into the lounge room where he dressed.

16. The victim’s mother collected the three children late on the Saturday afternoon.

17. The victim’s three female friends gave evidence that the victim had begun to confide in them, in general terms, from about late 2020, that he had been sexually abused by his uncle or a family friend and that this had been going on for a long time. These witnesses gave evidence that they had supported him and encouraged him to tell an adult what was going on. Over the period of a week or so, between 7 August 2021 and about 20 August 2021, the victim recorded videos of himself speaking about being sexually assaulted by the offender and sent these to his three friends who had encouraged him to tell his parents, but he continued to be worried about the consequences of doing so.

18. At times in these videos the victim was crying and explaining some of the things that were occurring to him, although in a somewhat vague manner.

19. In the early hours of Friday, 20 August 2021, while conversing on WhatsApp with one of his female friends the victim sent a message to the school counsellor, saying, in effect, that for the past seven to 10 years he had been getting sexually abused by his father’s best friend, “Brett Clarke”. The victim asked, however, that nothing happen until after the weekend.

20. On the evening of Sunday, 22 August 2021, when the victim had not handed his phone into his parents for the night, which was a family rule, the victim’s mother retrieved it from his room and, upon checking it, saw the message that the victim had sent the school counsellor and then showed these to the victim’s father.

21. Subsequently, the school counsellor made a mandatory report to police and the victim was interviewed on 26 August 2021, on which occasion he disclosed some of the offending while the remaining offences were reported to police in later interviews.

22. On 2 September 2021, police arrested the offender at his home in South Tamworth. He participated in a police interview when some of the allegations were put to him, which he denied. The offender was then charged with some offences and subsequently with other offences, which arose from subsequent disclosures made by the victim.

23. Those, in essence, are the facts on which I proceed to sentence.

OBJECTIVE SERIOUSNESS

46. A fundamentally important part in this sentencing exercise is that I make an assessment of the objective seriousness of the various offences for which the offender must be sentenced. The maximum penalties, which range between seven years and life imprisonment, provide a clear statement by Parliament that each of the offences are potentially very serious and particularly serious in the cases of offences involving sexual intercourse.

47. The prevalence of sexual offences against children has become more and more apparent in recent decades and, partly in recognition of this fact, courts have repeatedly stated that offenders must receive severe punishments.

48. The objective seriousness of an offence involving sexual misconduct towards a child must, of course, depend very much on the circumstances of the particular offending. More particularly, it will depend on matters such as the nature of the sexual misconduct, the age of the child and the age difference between the offender and the child, the duration of the offending and the extent to which the offender has exploited the trust and vulnerability of the victim.

49. Turning then to the individual offences, firstly count 1, this offence of committing an act of indecency towards a child under 10 years involved the offender calling the victim into the bedroom and then suggestively looking towards his own genitals. The victim was aged seven and so comfortably under the threshold of 10 years element for this offence, while the offender was in his late 20’s and so much older.

50. The offence involved a serious breach of trust, given that the offender was babysitting the victim. It also occurred in a house that was the victim’s home, at least temporarily, given that he was intended to sleep over. On the other hand, the offence was very brief and did not involve touching, and no words were spoken.

51. I assess this offence as being below the mid-range and towards but not in the lower range.

52. Turning then to count 2, this offence of sexual intercourse with a child under 10 involved the offender having the victim suck his penis while giving him “pointers” on how to do that. Again, the victim was comfortably under the threshold 10 years and there was the considerable age difference. The offender exploited his authority and position of trust in committing this offence.

53. I am conscious, however, that “under authority” is an element of this offence and does not further aggravate it. And, in relation to the breach of trust aspect, I have taken care not to double count this, given that there is a significant degree of overlap between this and the element of “under authority” in this matter.

54. It is not clear how long the offending went on for, but it certainly was not fleeting and there was no evidence as to whether the offender ejaculated and so I disregard this possibility. The offence did not involve any violence beyond that inherent in the offence, or any threats of violence beyond the offender’s warning that the victim must not say anything or they would both get in trouble.

55. In my view, this offence falls within the mid-range of objective seriousness.

56. As I have already noted, the offences in counts 1 and 2 were committed essentially as part of one episode, albeit separated in time to a minor extent. This is a matter that I have taken into account in determining the degree to which there should be any notional accumulation in setting the aggregate sentence that I intend to impose. In my view, there needs to be some degree of notional accumulation, but it should be fairly limited.

57. Turning to count 3, or at least the statutory alternative to count 3, this involved the offender instructing the victim to suck his penis while the offender stood behind a piano in his garage. The victim was aged between nine and 11 and so, giving the benefit of this uncertainty to the offender, I will assume that the victim was 11 years old. This, however, still places him comfortably under the 14 year threshold, while the offender was, of course, 21 years older.

58. There is no evidence about whether the offender ejaculated and so I disregard this possibility. While the offence took place in the presence of other children, the offence was concealed from them and so this does not aggravate it.

59. The offence involved the offender manipulating the victim who was seeking to play with a cap gun. The jury, in finding the offender not guilty of count 3 but guilty of the statutory alternative, were not satisfied, it seems, that the “under authority” element was made out, and so I disregard this aspect.

60. However, the offence involved a breach of trust, given that the offender was regarded as a quasi-uncle and trusted family friend. The offence occurred in a home, albeit the offender’s home, but where the victim ought to have been safe from predatory behaviour like this. The offence, however, did not involve gratuitous violence or threats, or any physical injury or risk of injury to the victim. Given the circumstance that other children were nearby, I conclude that the offence was brief but not fleeting.

61. I assess this offence as being within the mid-range of objective seriousness.

62. Next I turn to the statutory alternative to count 4. This offence of sexual intercourse with a child above the age of 14 but under 16 occurred when the victim was 13 to 15 years of age and the offender was in his early 30’s. The jury were evidently not satisfied of the “under authority” element in count 4 and so found the offender guilty of the statutory alternative which did not require this element. I assume that this was likely due to the fact that the offence occurred in the home of the victim, at a time when his parents were present, although presumably asleep.

63. The offence involved the offender fellating the victim, who pretended to be asleep and kept trying to roll over while the offender would flip him onto his back and continue the fellatio. Counsel for the offender initially argued that the offence, for the purposes of sentence, should be regarded as having ended when the victim awoke and rolled over and that any fellatio after that point would involve a separate offence with which the offender has not been charged or convicted.

64. However, as the Crown pointed out in further written submissions, its case was run and put to the jury on the basis that the evidence from the complainant that the fellatio was occurring when he woke up and continued again after he was once or twice “flipped over” onto his back after rolling over. The jury’s verdict clearly indicates that it accepted the victim’s evidence and, given that the offender’s case was that no sexual contact ever occurred on any occasion, it would seem to follow that the jury accepted the essence of the victim’s evidence to the effect that he awoke to being fellated and that this was continued by the offender despite the victim’s efforts to make it stop.

65. I am satisfied beyond reasonable doubt of the version given by the victim, who was an impressive witness. I do not, however, treat the offending as involving more than one offence, but rather as a single act of fellatio, although one that was interrupted very briefly by the victim’s action in rolling over. Counsel for the offender appeared, in submissions during the hearing earlier today, to accept this approach if I was first satisfied beyond reasonable doubt of the evidence given by the victim about this incident.

66. I am not able to determine the length of time over which this offence occurred but I am satisfied it was certainly not brief.

67. The victim’s age, which I will assume in favour of the offender, was about 15, places him only just under the 16 year threshold, while the offender was 21 years older. The victim was particularly vulnerable at the commencement of this offence, given that he was asleep. The offence involved a breach of trust and was committed in the victim’s home. It did not, however, involve gratuitous violence or threats of physical violence. Also, there is no evidence as to whether the victim ejaculated and so I disregard this possibility.

68. I regard this as a mid-range offence.

69. Count 5 involved the victim being required to perform penile anal penetration upon the offender, at a time when the victim was under the offender’s authority. This, however, is an element of the offence and it does not aggravate it.

70. The offence, however, did involve a breach of trust but I have been careful not to double count this aspect, given that, as I have already said, there is a significant degree of overlap between “under authority” and a breach of trust.

71. This offence did involve some physical injury to the victim, given that his penis was bleeding, although there is no suggestion that this was a serious or lasting injury. Nor is there any suggestion that the offender intended that this should happen.

72. The offence went on for some time and was not brief. No condom was used and so there was some risk, in a theoretical sense, of disease to the victim. The offender instructed the victim to “keep going”, even though he wanted to stop due to pain. Given the uncertainty about the victim’s age, I will assume in the offender’s favour that the victim was 15 and therefore only just under the 16 year threshold. Of course, the offender was a lot older.

73. The offence occurred in the offender’s home, where the victim was temporarily staying and where he should have been entitled to feel safe. The offence did not, however, involve any direct physical violence or threats of that kind.

74. I regard this as an offence that is well into the mid-range of objective seriousness.

75. Turning then to counts 6, 7, 8, 10 and 11, these offences, as I have previously said, form part of one protracted incident. This is a matter that I have taken into account for totality purposes and determining the extent to which there should be any notional accumulation in setting the aggregate sentence that I will be imposing for all offences. In my view, there needs to be some degree of notional accumulation in relation to this series of offences, so as to acknowledge the very deliberate course of conduct and the escalating nature of the offending which it involved. However, given that they all formed part of the one episode, the degree of notional accumulation should not be great.

76. These five offences have a number of matters in common. They all occurred when the victim was 15 and just under the 16 year threshold, while the offender was 21 years older. They all involved a breach of authority, although that is an element and not a matter of aggravation. They all involved a breach of trust, although again I have taken care not to double count this aspect, given that there is a degree of overlap between this and the aspect of “under authority”. They all occurred in the home of the offender, but as the victim was sleeping over, it was effectively his home at the time and a place where he should have been safe.

77. The offences took place over a period of around an hour and so it cannot be said that any of the offences were brief or fleeting. None of the offences, however, involved gratuitous physical violence or threats of physical violence.

78. Having made those general observations, I turn to the individual counts.

79. The count 6 offence involved the victim being instructed or asked to fellate the offender, which he did, before the victim stopped and, out of a genuine and very mature concern for his siblings, asked that the door be locked.

80. I regard this offence as being around the mid-range.

81. Counts 7 and 8 relate to the mutual fellatio which was engaged in by the offender and the victim, at the insistence of the offender.

82. These are each, in my view, around the mid-range of objective seriousness.

83. The offence in count 10 involved an assault by the offender with intent to have anal intercourse after the offender had asked to penetrate the victim’s anus with his penis. The jury, I assume, found the offender guilty of this alternative offence because it was not satisfied that there was any actual penetration of the victim’s anus, which was the allegation in count 9. Nonetheless, the offence involved repeated attempts at penetration which only stopped by reason of the victim’s complaints of pain.

84. Again, I regard this offence as being around the mid-range.

85. The count 11 offence involved the victim being required to penetrate the offender’s anus with his penis without the use of a condom.

86. I regard this as being an offence that is well into the mid-range.

87. Having regard to the fact, as I have already mentioned, that the offences were committed in a home which included either the home of the victim or the offender, I have, in accordance with the submissions made this morning by the Crown and apparently accepted by the defence, given greater weight to this factor where the offence was committed in the victim’s own home and slightly less weight where the offence was committed in the offender’s home.

88. A Victim Impact Statement was admitted in the proceedings. It is not relied upon as aggravating the offending or increasing its objective seriousness and I do not approach it that way. However, it describes, in concise terms, the serious and often life-long consequences of sexual offending against a child, which usually, if not invariably, leave the child victim, even as an adult, with lasting and serious difficulties in many aspects of their lives (see R v Gavel [2014] NSWCCA 56). In my view, this case is no different to those general observations.

89. There are a number of reasons why sexual abuse of a child is usually so damaging. One of the most obvious is that it exposes them to behaviour that they are not yet properly equipped to understand. Another is that where the perpetrator is an adult or other person in authority, there is an implied expectation that the child should comply and not question or complain.

90. In this regard it is instructive to recall the very insightful evidence which the victim himself gave in his pre-recorded evidence on 18 May 2023 where he said at p 73 of the transcript in answer to why he did not yell out to his parents for help. He said, “I didn’t think they’d believe me”, and then when further asked, “Believe you about what?”, he said, “All of it”. He was then asked, “When you say ‘all of it’ what do you mean specifically?”, to which the answer was,

“Everything that had happened up to that point, every time he touched me, every time I had to suck him, every time he’d done the same thing to me, because how do you tell a guy that his best friend has been touching up his oldest son for three-quarters of a decade and he didn’t know.”

91. In noting that piece of evidence, I intend no criticism at all of the victim’s parents who, not surprisingly, had trouble at first in believing the allegations, but who evidently came to accept the victim’s account and took him to police to be interviewed.

92. The point in highlighting this piece of evidence is rather to shine a light on the dilemma faced by a child victim given the helpless position in which they are usually placed. In making these observations I also reiterate that I do not treat the obvious harm to the victim as an aggravating matter in this case.

93. In his evidence the victim said that the offences before the Court were not the only times that he was subjected to sexual behaviour by the offender. This evidence was admitted in the trial as “context” and the jury were not required to make any findings about whether any such offences occurred.

94. As I have said at other points in these remarks, I found the victim to be a highly credible and compelling witness and I accept beyond reasonable doubt his evidence that there were other occasions where he was engaged in sexual behaviour by the offender. I make no findings, however, as to the nature of any such acts. Nor do I treat this evidence as in any way increasing the objective seriousness of any of the offences or the overall criminality.

95. Rather, I approach this evidence as going to rebut any suggestion that the offences before the Court should be treated more leniently because they were aberrations or out of character. Such an approach was, appropriately, not disputed by counsel for the offender.

SUBJECTIVE MATTERS

96. I turn then to subjective matters relating to the offender himself. He is now 38 years of age and was about 27 to 36 years of age during the period of the offending. He has no prior convictions. His subjective circumstances have been placed before the Court by the psychological report of Dr Thomas Dornan, the contents of a Sentencing Assessment Report and also a number of character references.

96. The offender has some Aboriginal lineage, but this does not appear to have been a real feature of his upbringing or of his personal identity. The offender’s childhood was somewhat unstable, as his family moved around a lot due to his father’s work and the offender attended many schools and suffered some bullying.

97. His family upbringing appears generally to have been fairly unremarkable and although he described his father as “a bit of a drinker”, he did not report witnessing or experiencing domestic violence or any physical abuse or neglect. He did, however, report being sexually abused apparently on a single occasion as a child by an associate or friend of one of his older half-brothers and this continues, I accept, to have an impact upon him.

98. He has struggled for much of his adult life with mental health issues such as anxiety. However, he has nonetheless been able to maintain a good history of employment, a long term relationship with his partner, and had some success as a musical performer and song writer.

99. The psychologist formed the opinion that the offender meets the diagnosis for persistent depressive disorder and suggests that he would benefit from referral to a psychiatrist for consideration of some sort of medication. I note, however, that the offender has no history of treatment with medication in the past and that he appears, leaving the current offences to one side, to have coped reasonably well with his life, his employment and his social and familial connections.

100. In summary, apart from experiencing an episode of sexual abuse as a child, the details of which I am not aware, his background and current functioning appears to be fairly unremarkable.

101. There is little in the offender’s subjective case to suggest that his moral culpability is reduced and this was conceded in para 31 of the written submissions for the offender. In my view his moral culpability for each of the offences is high. Nonetheless I have taken into account the offender’s childhood difficulties and struggles with his mental health as part of the overall synthesis of various matters that I have to consider. I also take into account the diagnosis of persistent depressive disorder which will make his experience in custody more difficult.

102. There were also admitted into evidence a large number of character references which speak highly of the offender, many of which indicate disbelief that he could have committed these offences. While I accept that these are the perceptions of the authors of those character references, the experience of the Courts is that offences like this, which occur in secret, are not infrequently committed by persons who live outwardly blameless lives.

REMORSE, REHABILITATION, AND RISK

104. There is no remorse in this case because the offender maintains his innocence despite the jury’s findings. In terms of his prospects of rehabilitation and risk of future offending, the sentencing assessment report notes that he is a low risk on the LSI-R assessment tool and within the average risk on the Static-99 assessment tool. The report of Dr Dornan, however, suggests a moderate risk.

105. On the other hand, both of these reports involved assessments that included an incorrect assumption that the offender had been also convicted of sexual offences involving the victim’s two younger siblings. tHIS, of course, incorrect because he was found not guilty of those matters which therefore, of course, must be disregarded. These errors or misunderstandings mean that the weight that I attach to the RISK assessments in those two reports is reduced to some degree.

106. On the other hand, as counsel for the offender submitted this morning, there is no evidence of any other offending despite the apparent opportunity to do so given that, as explained in the various character references, the offender has had ongoing contact with numerous other children.

107. I have had regard to all of this material. In my view the offender must be regarded as some continuing risk of similar offending, a risk which I would describe as moderate. I reach this conclusion having taken into account the positive factors that he has no criminal history, a stable employment history and reasonable work prospects on his release as well as good family support.

108. However, the offences before the Court were committed over a period of years during which the offender exploited and degraded the victim for the satisfaction of his sexual desires. The offender took advantage of his trusted position, no doubt believing that the victim would not report the abuse and would not be believed even if he did. While the offender has no prior convictions, this is of limited assistance to him in terms of mitigation at least after the point at which the earliest offences were committed.

109. The offences before the Court involved an egregious breach of the trust that had been placed in the offender not only by the victim, but also by the victim’s family. Given that the offender still denies the offences despite the compelling and impressive evidence given by the victim, I am of the view that his prospects of remaining offence free in the future are questionable or guarded.

DETERMINATION

110. In determining the sentence I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I do not intend to set all of those out.

111. I am satisfied for the purposes of s 5 of that Act that no penalty other than one of full time imprisonment is appropriate. Given that there are a number of offences, I intend to impose an aggregate sentence. In those circumstances I am required to set out the indicative sentences referrable to the various offences for which the offender is to be sentenced. I indicate especially for Mr Clarke’s purposes that the sentences I am about to announce are not the ultimate sentence. These are what are called indicative sentences. The ultimate sentence will be an aggregate sentence and I will make that clear at the end of these remarks.

112. The indicative sentences are as follows:

113. For count 1, imprisonment of ten months.

114. For count 2, imprisonment of seven years, six months and I specify a non-parole period of four years, nine months.

115. For the statutory alternative to count 3, the indicative is five years’ imprisonment and I specify a non-parole period of three years, two months.

116. For the statutory alternative to count 4, the indicative sentence is four years, three months.

117. For count 5, the indicative is five years' imprisonment and I specify a non-parole period of three years, two months.

118. For each of counts 6, 7, 8 and 10, the indicative term is four years, six months and I specify a non-parole period of two years, ten months, and;

119. For count 11, the indicative term is four years, eight months and I specify in that case a non-parole period of two years, 11 months.

120. Before I indicate the aggregate sentence I note that in this exercise a particularly important aspect in setting the overall aggregate sentence is a question of totality. That is, determining the aggregate sentence is not simply a matter of adding up all of the indicative sentences. Rather, I must give consideration to whether and to what extent there should be any notional accumulation between the various sentences or whether the sentence for any one or other sentence can reasonably be regarded as encompassing the criminality of another or others.

121. This is of particular relevance in relation to counts 1 and 2 which were part of the same incident and counts 6, 7, 8, 10 and 11 which were also part of one albeit a separate incident to counts 1 and 2. I have already made comments in relation to this at an earlier stage in these remarks.

122. In having regard to totality principles, of course, I am required, as I have, to look at the various indicative sentences and then consider the aggregate sentence and then stand away from that and consider whether the ultimate aggregate sentence appropriately encompasses the criminality involved, but does not impose an inappropriately crushing sentence.

SPECIAL CIRCUMSTANCES

123. I have made a finding of special circumstances for adjusting the ratio between non-parole period and head sentence and I have done that on the basis that this is the offender’s first time in custody.

RESULT

124. I impose an aggregate head sentence of 11 years’ imprisonment. I impose an aggregate non-parole period of seven years’ imprisonment. Each of those will date from 25 November 2023. The head sentence therefore will expire on 24 November 2034. The non-parole period will expire on 24 November 2030. Mr Crown, Mr Doupe, anything to raise about any of those numbers or anything else?

125. COATES: No, your Honour.

126. DOUPE: No, your Honour.

127. HIS HONOUR: Thank you, the Court will adjourn.

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Decision last updated: 28 June 2024