R v Clarke

[2020] NSWDC 692

District Court

New South Wales

Medium Neutral Citation:

R v Clarke [2020] NSWDC 692

Hearing dates:

01 October 2020

Date of orders:

19 October 2020

Decision date:

19 October 2020

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child <10

CRIME — Sexual offences — Indecent assault

SENTENCING — Relevant factors on sentence — Circumstances of offence

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

SENTENCING — Relevant factors on sentence — Objective seriousness

SENTENCING — Retrial after successful appeal — Effect of earlier sentence

SENTENCING — Sentencing procedure — Expert reports

SENTENCING — Sentencing procedure — Reasons for sentence

SENTENCING — Subjective considerations on sentence — Age of offender

SENTENCING — Subjective considerations on sentence — Special circumstances

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Sentencing Act 1989

Cases Cited:

Davies v The Queen [2019] NSWCCA 45

Imbornonev R [2017] NSWCCA 144

Markarian vThe Queen [2005] HCA 25

Muldrockv The Queen [2011] HCA 39

RvQutami [2001] NSWCCA 353

ShannonvR [2006] NSWCCA 39

Tepania v The Queen [2018] NSWCCA 247

TO v R [2017] NSWCCA 12

Texts Cited:

Australian Women's Weekly Wednesday 24 September 1969

Category:

Sentence

Parties:

Regina (Crown)

Darrell Charles Clarke (Offender)

Representation:

Donna Daleo (Crown Prosecutor)

Taran Ramrakha (counsel for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Pope & Spinks (Offender)

File Number(s):

2017/00121873 & 2016/00321508

Publication restriction:

Statutory non-publication order for the identity of the complainants and a further order made in Court that there is to be no publication of the names of the complainants or of any information which may enable their identities to be ascertained

REVISED JUDGEMENT

Introduction

1. On Monday 27 July 2020, Darrell Charles Clarke appeared for trial in the District Court, Sydney presented upon an indictment alleging four offences. Three of these were charged in the following terms:

Counts 1 and 3

Between 1 January 2016 and 26 October 2016 at Leumeah in the State of New South Wales, [he] did have sexual intercourse with a child then under the age of ten years, namely six or seven years, contrary to s 66A(1) Crimes Act 1900.

2. Count 1 was in respect of a child, TO and count 3 in respect of her sister, SO.

Count 2

Between 1 January 2016 and 26 October 2016 at Leumeah in the State of New South Wales, [he] did assault TO and at the time of that assault committed an act of indecency on TO, a child, then under the age of 16 years, namely six or seven years, contrary to s 61M(2) Crimes Act 1900.

3. I found the accused guilty of count 3 and therefore no verdict was required for count 4 charged in the alternative to count 3.

4. To each of the charges upon which he was presented, the accused pleaded not guilty and elected the trial to be conducted before a judge alone pursuant to s 132 Criminal Procedure Act 1986 to which the Director of Public Prosecutions agreed.

5. I delivered judgement upon the question of guilt over two days concluding on August 13 2020. On the earlier occasion I announced my findings and formally convicted the offender on the latter occasion of counts 1, 2 and 3.

6. Thereafter, the proceedings were adjourned for material to be assembled relevant to the assessment of the appropriate sentences for these offences. Material was transmitted electronically to my chambers. On October 1 2020 the proceedings on sentence were heard. The hearing concluded at 4pm and the matter was adjourned for judgement on sentence until October 16 2020.

7. The proceedings were listed before me for determination last Friday. But at that point I was at the conclusion of a judge alone trial in which I decided the Crown had not discharged its burden of proof and therefore it was important to proceed to deliver judgement as soon as I could. The accused in that trial was in custody, solely in respect of the matter that was then before me, and it was necessary therefore to conclude that matter forthwith so he could be released at the earliest possible moment. The time that was available for me to complete that task and to deal with a summary matter before the Court pursuant to s 166 Criminal Procedure Act 1986 did not allow sufficient time for me to conclude the judgement and the imposition of sentence in these proceedings and I therefore adjourned the matter to be dealt with this morning as the first item in my list.

History of the Proceedings

8. This is the second trial the accused faced in respect of these charges. The matter was earlier prosecuted before Judge Noman SC and a jury, after which the offender was found guilty of the same offences upon which I have concluded that he is guilty. Her Honour's judgement on sentence delivered on 4 May 2018 is before me. Her Honour gave an indication as to appropriate sentences in the following terms at p 9 of that document: Count 2, six years imprisonment with a non‑parole period of three years; Count 1, eight years imprisonment with a non‑parole period of five years; and Count 3, ten years imprisonment with a non‑parole period of six years.

9. Her Honour imposed an aggregate sentence of 12 years with a non‑parole period of eight years from 27 October 2016. The non‑parole period upon that sentence was to expire on 26 October 2024 and the overall sentence was to expire on 26 October 2028. Her Honour found special circumstances drawing upon the material that was tendered on the offender's behalf.

10. The offender successfully appealed to the Court of Criminal Appeal[1] . The appeal was founded upon the approach taken by the Crown Prosecutor in the first trial with regard to representations contained in the electronically recorded interview in which the accused participated with police. The submissions made by the Crown to the jury in respect of certain answers given by the accused were represented to extend to a level of dishonesty, in other words, suggesting that he was lying, which caused her Honour concern. She sought assistance from counsel then appearing for the accused who chose not to agitate the point for whatever tactical reasons that exercised counsel's mind. So, the jury were left to consider the matter informed by what the Crown Prosecutor had to say and without further guidance by her Honour.

    1. Decision restricted [2019] NSWCCA 234

11. The Court of Criminal Appeal acknowledged the difficult task that her Honour had in dealing with the circumstances presented to her but took the view that the conviction appeal should be allowed in light of the risk arising from the submissions made by the Crown in respect of the answers that were in issue. The Court of Criminal Appeal remitted the matter to the District Court of New South Wales for re-trial and it was allocated to my court to proceed, as I indicated, as a judge alone trial.

12. The transcript of the earlier trial was before the Court for purposes of cross‑examination and also for the evidence adduced from the two complainants, TO and SO. Their evidence was presented by way of the JIRT interviews in which they participated with the investigators and their examination and cross‑examination that was undertaken in this court in the absence of the jury as part of the pre‑recording processes that were in place. Thus the evidence previously given by the complainants was before the Court with some additional evidence from them in this trial.

13. The accused did not give evidence in this trial or in the proceedings for the determination of sentence. He did, however, participate in an interview; as I indicated that occurred on 27 October 2016. An edited version of that was tendered in the trial and played. The interview concerned only the allegations made by SO. At the time of the interview and the arrest of the offender for the matters alleged by SO, complaint had not been made by TO.

14. In the interview, the offender provided qualified responses to questions which alerted him to the offences for which he was then being investigated. The Crown relied upon these for limited purposes. Ultimately though, he made express denials of any wrongdoing towards this child and he continues to maintain that he is not guilty of any of these charges.

15. The limited purpose for which the Crown contended the Court should use the representations in the interview, for the determination of the question of guilt, was for the assessment of credit only. It was submitted that the content of those answers were such that the Court could not accept as credible the accused’s denials.

16. As I indicated in my judgement on the question of guilt this was not the end of the matter, which needed to be resolved by putting aside the content of the interview and then closely analysing the evidence given by the two complainants. If I did not accept the evidence of the complainants upon the allegations that were made against the accused it would follow that he would have been entitled, and indeed the Court would have been obliged, to return a verdict of not guilty in respect of the allegations made against him. However, I found, as I indicated in my judgement, the two children to be compelling witnesses, and I found that they were both truthful and accurate with regard to the allegations each made against him. I found the offences were proved and returned verdicts of guilty accordingly.

The Crown Case

17. The Crown case was presented against the background of the relationships between adult females in the families to which TO and SO belonged. The background included that at the time of these offences in 2016, the offender lived in a unit on the upper floor of a block of flats in Leumeah. His unit was number 5. The children's grandmother Leone lived in unit number 3 on the ground floor. At the time Leone became friends with the offender and he regularly visited her unit. He sometimes brought meals that he had prepared. They would sit on her balcony where he smoked and would consume alcohol.

18. Leone had visits from her family including her mother Anne, the great‑grandmother to these children, her sister Janet, and her daughter Anne‑Marie, the mother of the two children complainants. Anne‑Marie had four children, TO and SO and two others, R and J. TO was born in early 2009 and SO late in 2011.

19. In October 2016, Leone's mother Anne and Leone’s daughter Anne‑Marie, her grandchildren, SO and J, and her sister Janet, came to stay at the unit where Leone lived. The offender visited Leone during this period and met her family including SO. He already knew Anne‑Marie, having met her at a prior visit during 2016.

20. There was conduct attributed to the offender when he had SO on his lap on occasions in the lounge room or on the balcony and he was said to have taken SO to his unit and given her lollies or sweets.

21. On one occasion during this stay and while he and SO were alone in a room in Leone's unit, it was alleged that the accused put his hands down her underwear and penetrated her genitalia, rubbing it with his hand. This conduct was the premise upon which the offence charged in count 3 was brought. Count 4 in the alternative alleged the aggravated indecent assault the Crown would rely upon that if the Court was not satisfied beyond reasonable doubt that there had been penetration of the genitalia. After I looked at the evidence of the complainant carefully I was satisfied that there was evidence of penetration, although it is impossible to say that it extended into more than the genitalia and whether it penetrated her vagina within. I was satisfied that there was penetration to the extent sufficient to satisfy the definition of sexual intercourse in its extended form.

22. There was other background information including an occasion when SO was having a bath at Leone's unit, and Anne‑Marie heard her scream. She went to the bathroom where SO told her that she put shampoo in the bath and it had gone into her "rude part". The offender was present at the time. He is said to have gone to the doorway of the bathroom and said the words, "just give me a look, I used to be an ex-nurse" to which Anne‑Marie said "no" and told him to leave and closed the door.

23. There were issues raised with regard to the evidence given by the various adults called in the trial, the mother, the grandmother, and the great‑grandmother of these children. There were said to be inconsistencies between their evidence when compared one against the other, and it was said there were inconsistencies between their evidence before me and what they previously said including in the first trial. As I noted, it is the fact that the evidence that they gave had not in all respects come up to what the Crown anticipated as outlined in the opening address that the Crown provided in the trial.

24. I rejected the contention on behalf of the accused that there had been, perhaps innocently, some programming or cajoling of these children to prepare them for the task of giving evidence against the offender in the trial. I rejected the proposition that there had been some combination between the adult women to make what were untrue allegations against him drawing upon an event where another woman, Wendy, not called in the trial, is alleged to have seen the accused with one of the children on his lap in compromising circumstances. This was said to be the foundation upon which the development of the allegations and their repetition evolved. These were as I found not sophisticated people. I found it would beggar belief to come to the view that the children at this age could be cajoled and programmed to present in such a compelling fashion in the descriptions they gave of the offences that were alleged of the offender.

25. The evidence given regarding TO included that her allegation was not exposed until after the initiation of the prosecution in respect of complaints by SO. A month or so after in November 2016 Anne‑Marie was at home in Muswellbrook, when TO came to her and informed her what she had experienced when she said the offender offered her money and asked her to touch his penis. The evidence was that the response by the mother was not to interrogate the child further but to make contact with the Family and Community Services helpline, after which the investigators were engaged.

26. On 3 February 2017 TO was interviewed by members of the Newcastle Child Abuse Squad. She told police she was visiting her nanny and a man put his hands down her pants. She was trying to stop him. He touched her on the inside of her rude part with her fingers. She said that she told him to stop but he kept doing it. She told the police this happened upstairs in the man's unit and that he lived upstairs from her nanny who was downstairs having a shower when it happened.

27. She also spoke of an occasion when she was inside the man's unit, was having a drink of cordial, and he was trying to pull down her pants. She said "stop, stop" but he kept doing it and pulled down her pants and touched her on "bum", to use her words, using his finger. That conduct gave rise to count 2 on the indictment.

28. In my judgement I proceeded through the evidence given by the complainants drawing upon their respective JIRT interviews and their evidence in the first trial. There is no need for me at this point to proceed with any further analysis in this judgement for the determination of sentence.

Penalties

29. The maximum penalty to which the offender is exposed for the offences contrary to s 66A(1) Crimes Act 1900 is imprisonment for life. There is a standard non‑parole period specified of 15 years imprisonment. The offence charged in count 2 of indecent assault contrary to s 61M(2) Crimes Act 1900 has a maximum penalty of imprisonment for ten years with a standard non‑parole period of eight years.

30. The standard non‑parole period is a matter that must be brought to account. The provisions introducing standard non‑parole periods are found in Part 4 Div 1A Crimes (Sentencing Procedure) Act 1999. These were amended following the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39. These provisions now have the following effect:

• S 54A(1) of the Act provides that the standard non‑parole period for an offence is that which is included in the Table to the provisions.

• Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence in the Table that falls within the middle of the range of objective seriousness assessed taking into account only the objective factors affecting the relative seriousness of that offence.

• Section 54B(2) provides that the standard non‑parole period is a matter to be taken into account when determining the appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account.

• Section 54B(3) requires that the Court records its reasons for setting a non‑parole period that is longer or shorter, identifying each factor taken into account.

31. The objective gravity will be assessed upon the consideration of the objective factors affecting the relative seriousness of the offences without reference to matters personal to the offender or class of offenders but wholly by reference to the nature of the offending bringing into account relevant factors provided in s 21A of the Act, except for those that are essential elements or integral characteristics of the offence.

32. The fixing of the non‑parole period is but part of the task whereby the Court determines what is the appropriate sentence regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The Court must not embark upon a mathematical or staged or tiered process of reasoning when assessing the appropriate sentence but must identify all relevant matters bearing upon the question of the appropriate sentence in the process of intuitive sentences, discussed, for example, by McHugh J in Markarian v The Queen [2005] HCA 25.

33. In the determination of sentence for offences for which there is specified a standard non‑parole period, it and the maximum penalty legislative guideposts for the sentencing court along with other established sentencing practices and by reference to matters identified where relevant in ss 3A, 21A, 22 and 22A of the Act.

34. In this case s 22 of the Act is of no application because the offender has not pleaded guilty to any of the misconduct alleged of him.

35. Section 22A of the Act however requires the Court to bring to account the extent to which the accused in a trial has facilitated the process of justice through which proceedings have continued until their final determination. The accused by electing to have this trial determined before a judge alone is a matter which I shall bring to his account upon the application of that provision.

36. Apart from other considerations, I say this because of what has unfolded this year as a result of the evolution of the COVID‑19 virus which has so burdened the entire world. Australia has escaped relatively unscathed because of the response by our State and Federal Governments, far more successfully I might say than Europe and countries on the American continents. The opportunity to have trials conducted before a jury in this State since COVID‑19 evolved has been significantly circumscribed such that only limited trials could be conducted in the Downing Centre. At some of the centres in the State, none at all could be conducted. Where possible, the Court through the judges led by the Chief Judge have sought to encourage parties to consider whether their proceedings might be determined before a judge alone trial thereby to minimise the risk of infection through transmission of this disease. I have conducted, as the trial judge, a number of matters in this court using the systems employed to minimise the risk of infection to any of us and to members of the public called upon to serve on the jury and they do involve inconvenience and delay. The consideration given by those who have taken the step of facilitating the processes in this centre by acquiescing in arrangements for the trials to be conducted by judge alone should not be overlooked in the assessment of sentence.

31. Before I turn from the consideration of the significance of the standard non‑parole period I should not overlook what was said by Johnson J in Tepania v The Queen [2018] NSWCCA 247. He delivered the judgement in an application for leave to appeal from sentence. Payne JA and Simpson AJA agreed with his Honour's commentary including that which appears at para [110] where his Honour summarised the provisions to which I have referred, continuing at para [111], and then at para [112] where his Honour wrote:

"In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence…"

38. There is no reliance placed upon such matters as exemplified in that paragraph in this case. And thus one must consider the objective gravity of the offending by assessing all objective factors that are relevant to it.

39. If one comes to the view that these offences were within mid-range of objective seriousness or above, it does not follow that one would impose the standard non‑parole period or another period calculated with reference to where the offence might fall on the scale of misconduct, because as is made clear in judgements such as Markarian ibid, to which I have referred, the process of determination of sentence is upon the synthesis of material, it is not an arithmetical or calculated approach that is followed in this exercise.

Objective Gravity

40. In written submissions the Crown provided the background of these proceedings including the determination by the Court of Criminal Appeal after it heard the matter on 7 June 2019 and delivered judgement on 2 October 2019. It summarised the conduct upon which the Crown relied for each of the respective counts to which I have already referred, and it notes that the offender is asked to be sentenced in relation to the two acts of digital penetration, once upon each of the children, and the one count of aggravated indecent assault charged in respect of TO upon the conduct pulling her pants down and touching of her bottom in circumstances where, upon the description she gave, he had his penis poking out perhaps in a state of erection, which the Crown submits I should find. I would not be prepared to go so far as to find that his penis was erect though the finding I make is that his penis was exposed in the manner described by the child.

41. The Crown points to the various matters of significance when determining the objective gravity of the offending. The Crown points to vulnerability. The Crown notes that the concept of vulnerability is not an element of the offences charged. Attention was taken to decisions such as Shannon v R [2006] NSWCCA 39, wherein there was no criticism of the sentencing judge who in recognition of the need to protect the vulnerable, noted legislation provided for offences against children these ages.

42. Thus although age is an element of the offence in each case and though vulnerability per se is not an element of the offence, it was recognised that the sentencing judge would not be in error taking into account the particular vulnerability of a child by reason of the young age or other relevant circumstances, and the limitations upon young children who might feel they could not complain to the persons responsible for their care because of the perception of the relationship between their carers and the person alleged to have misconducted themselves.

43. In Davies v The Queen [2019] NSWCCA 45, the Court noted that vulnerability of a victim is not an element of these offences; it was not something that needed to be proved independently as was the age. The Court noted that there were ranges of ages that were to be considered and one would need to consider where along that scale the age of the child was at the time of the misconduct. Children at the lower end of the range are generally likely to be less mature, and more vulnerable than older children within the same age group. They noted that vulnerability was an individual consideration which could not be addressed in the abstract; the Court held that it was entirely appropriate for the sentencing judge to take into account that a younger child would have an increased level of vulnerability as a factor of age and that physical and mental maturity would be likely to increase as the child grew older.

44. The Crown notes that SO was aged four at the time of the alleged offence, significantly below the age limit relevant to the section under which the prosecution was brought, and that this informs the objective seriousness of the conduct and attracts consideration of her vulnerability by reason of her age.

45. TO was six or seven years of age, three to four years below the age threshold in the provisions. Once again, the Crown submits that this informs the objective seriousness of the offence and the extent to which TO was vulnerable in the circumstances.

46. Both of those submissions were made with regard to the offence of sexual intercourse.

47. The age threshold for the offence contrary to s 61M(2) Crimes Act 1900 is 16. TO was six or seven years of age, significantly below the age threshold, again informing objective seriousness of the conduct.

48. There was in each case, the Crown submits, a breach of trust. It was also relevant to consider the disparate age of the offender, 56 years at the time of the offences.

49. The offences did not involve any violence. Perhaps one might say if there was persistence it was limited as matter to be brought to account. But as the Crown correctly points out that would aggravate the misconduct but it does not mitigate the misconduct of which the offender has been found guilty.

50. The Crown submits that each of these offences falls within mid‑range of objective seriousness. Bringing into account the matters to which I have been taken, I have come to the view that I should accept that submission.

Victim Impact Statements

51. The material tendered in the Crown case included what are described as victim impact statements. These are handwritten documents, one from each of the complainants. They are not accompanied by any further material describing the impact of this misconduct upon the children. Indeed, having observed them in the course of giving evidence, it appeared to me that they had progressed since the occasions when these offences occurred.

52. TO, in her document, wrote six points. I shall quote them:

"1) I am very nasty towards people.

2) I am feeling scared.

3) I've got to have the door open all the time.

4) I don't like the dark.

5) I am very nasty towards my baby sister. My moods have changed.

6) I scream lots."

SO wrote six points:

"1) When cornered I freeze.

2) I hate my teacher.

3) I don't like the door closed.

4) I don't like myself.

5) I scream at my mum, dad and nan.

6) Scared of the dark."

53. The victim impact statements serve two purposes in my assessment. One, it gives the victim of a crime the opportunity to present how the crime has affected them, and in some instances, how it might continue to affect them. In child sexual offences the learning achieved has been to inform all of us that child sexual abuse has a long‑standing impact upon its victims. The recent Royal Commission into child sexual abuse within institutions received a deal of evidence upon this very topic. It is a matter that Courts bring into account when assessing the determination of sentence in such matters.

54. The other benefit of a victim impact statement is that the victim has the opportunity to confront the perpetrator with the consequences of their actions.

55. In this case, notwithstanding that these are small children and some allowance must be allowed for them, the Court's task is to assess sentence upon the material that has been provided. I would not bring their representations to account other than for the very limited purposes to which I have alluded. They could not be brought to account in any way for aggravation of the objective assessment of the misconduct or its sequelae for the victims or the punishment which the offender is to suffer. I do not have a date on these documents that might inform me when they were written.

The Assessment of Sentence by her Honour Judge Noman SC

56. The Crown provided in its bundle material that was tendered to Judge Noman SC to which I will refer when I deal with the offender's case.

57. The Crown also made submissions with regard to the approach the Court should take to the determination of sentence in a subsequent trial, such as in this case. The traditional view that is employed, for which there is ample authority to which the Crown has referred, is that the offender should not suffer any greater sentence than that which was imposed in the first proceedings. There would be exceptions to that, I accept, depending upon the case, but I do not believe that this is such a matter. The offender will not suffer any greater punishment than that which was identified as appropriate by Judge Noman in the circumstances.

58. When her Honour determined sentence, in her judgement she summarised the effect of the evidence that was led before the jury. She was in the position of a trial judge who had the task of finding facts upon which to find sentence upon her view of the evidence that was presented but consistent with the verdicts that were returned. Her Honour identified that responsibility at p 4 of the judgement. Her Honour referred to the nature of the sexual intercourse in each case. Her Honour noted that the assessment of significance of the sexual intercourse is not to be assessed upon some hierarchical structure of penetrative acts though that does form a part of the overall assessment.

59. She noted the nature of the indecent assault. She noted the relatively brief period in which the misconduct occurred in each case. She identified the aspect of vulnerability, and the purposes of sentencing provided in s 3A Crimes (Sentencing Procedure) Act 1999. She accepted there was harm to the victims as contemplated by para (g) of that provision, a finding with which I would agree in keeping with what I said about the victim impact statements. She referred to the significance of the age of the victims and to Shannon v R [2006] NSWCCA 39 to which the Crown invited my attention.

60. Her Honour referred to the entitlement that SO had to feel safe within the family environment. Although the misconduct involved in the case of TO was in the offender's unit, it was within the community that the apartments or flats provided. TO was entitled also, in my view, to a sense of safety.

61. Her Honour noted what was submitted by the Crown that the offender took advantage of the family environment to abuse each of these children. To the extent that he took the opportunity presented I would agree that he has done so but I do not find, as did her Honour, that he initiated the association with this family with the purpose of gaining access to these children for the nefarious purposes of which I found him guilty.

62. Her Honour found that the offences were impulsive and opportunistic, findings of which I agree. She came to the view that there was no breach of trust, a matter upon which this Crown has advanced in this trial. I have already indicated my view with regard to that. Her Honour noted that the offences occurred on three separate occasions within the discrete episodes upon which the evidence was presented. Her Honour came to the view that the offence upon SO was below mid-range. The offences against TO she found were below mid‑range but did not provide any greater particularity for that finding. I have already expressed the view that I have regarding this.

63. It is worth noting that minds will differ when assessing objective gravity. It is always a matter of judgement to be determined according to the particular case at hand and it is the case that minds will differ.

64. Notwithstanding those points on which her Honour and I depart, as I indicated the sentence will not be increased beyond that which was identified by her.

65. Her Honour referred to the psychologists report provided by Amanda White on 18 April 2018 for the earlier trial. She accepted the history attributed to the offender that he suffered sexual abuse as a child when six or eight by numerous perpetrators. I have no evidence before me of that from the offender and I will say more about that when I come to assess his case. She referred to his employment prospects, his work history, the records provided by Justice Health or the information provided through Justice Health and his past offending including his assessment of intelligence was undertaken.

66. She came to the view that she could find that there was reasonably little risk that the offender would re-offend because of the absence of opportunity, but that his prospects of rehabilitation could not be determined in the absence of any insight into his offending. She spoke about the purposes of sentencing and the significance of general deterrence. And that he had been in custody since 27 October 2016.

The Offender

67. The offender was born in 1960 and this year turned 60 years of age. He has an extensive array of offences on his antecedent report which extends to 11 pages but no prior offence of comparable behaviour. He first appeared in Children's Court in January 1972 and continued thereafter to return to the criminal justice system as a juvenile with offences of break, enter and steal, offensive behaviour, driving without a license, stealing, stealing a motor vehicle, evading a rail fare, malicious injury, all of which resulted in conditional liberty and monetary penalties.

68. His first adult court appearance was in June 1979 for malicious injury, driving with a prescribed concentration of alcohol, thereafter followed by charges of malicious injury, trespass, causing serious alarm, drive with high‑range prescribed concentration of alcohol, driving an unregistered and uninsured motor vehicle with plates calculated to deceive, driving whilst disqualified, resisting arrest, refusing a breath analysis, another offence of malicious injury, another offence of causing serious alarm. These were all petty sessions’ court hearings.

69. He was in the District Court of Lithgow in July 1982 for break, enter and steal. He thereafter returned to petty sessions' hearings for causing a serious harm, refusing a breath analysis, assault, resisting arrest, mid‑range prescribed concentration of alcohol, a further offence of assault which attracted his first custodial sentence upon which he appealed successfully to the District Court in Sydney, whereupon the sentence of imprisonment was replaced with an order for community service. He also faced charges of assault police and evading taxi fare. He was sentenced to imprisonment for the assault police but that also resulted in the community service order.

70. He was in the Local Court for mid‑range prescribed concentration of alcohol, breaching a recognisance, which resulted in the sentence of three months imprisonment, a further offence of resisting an officer, another high‑range prescribed concentration of alcohol which resulted in imprisonment, and another drive with high‑range prescribed concentration of alcohol which resulted in imprisonment, as did the conviction for an offence of driving whilst disqualified.

71. He appeared in the District Court in May 2005 and was imprisoned for aggravated dangerous driving causing death for six years including a non‑parole period of four years and six months, which commenced on 12 May 2005. He was eligible for parole on 11 November 2009 with the head sentence to expire 2015. He also suffered imprisonment for driving with a high‑range prescribed concentration of alcohol and driving whilst disqualified but these were all concurrent sentences.

72. Clearly alcohol has been his burden through his life resulting in the most serious misconduct upon which he has previously appeared, of aggravated dangerous driving causing death with a sentence of imprisonment for six years. The sentence of six years suggests that the objective seriousness of that offence must have been significant.

73. He also has one conviction for a Federal offence determined at Bankstown.

74. The material tendered by the Crown as I indicated included his psychological assessment provided to Judge Noman in the report written on 18 April 2018 by Amanda J. White. There was some objection to this tender. It was not quite clear to me why but I ultimately admitted the document as part of the Crown case because of the need to review what was said by Judge Noman who had turned her mind to what the psychologist had found when assessing the offender.

75. His presentation was found to be challenging according to this report. He is said to have taken ten to 15 minutes to decide if he would proceed with the assessment. The importance of his active participation was stressed and he agreed to complete testing but remained resistant and guarded in the interview, and thus what was said was limited. He was easily agitated and annoyed. He did not trust his solicitors or the legal process. According to the offender, "everyone twists my words".

76. Upon testing for the first hour he appeared more relax and best engaged in non-verbal tasks, however after this his mood changed and on a test of learning and memory he disengaged, appeared angry and frustrated, and said he did not wish to continue. He said that his mind had gone elsewhere and that he had had enough. He said the assessment was futile as the judge was going to lock him up for life. He was offered a break, he paced and was ambivalent about continuing, and after about 10 minutes indicated that he had decided to continue with the assessment upon agreement as to a fixed finishing time.

77. At that point in his life, he was 58 years old. The report deals with his family, parents union, his mother's work, his father's work, their divorce when he was aged nine, his move to live with his uncle for a period and then living out of home from the age of 15 years. His father and two of his brothers, either his or his father's brothers, are deceased succumbing to cancer it is said. A sister died in a car collision. He has a younger sister who suffers from epilepsy. He shared a close bond with her.

78. One of the matters that I have brought to account in the COVID-19 matter is that visits from his sister are, at this point, not available to him because of the restrictions in corrective services, though as I understand the processes employed by corrective services these are being revised to relax restrictions at least to some extent. Still they are vigilant to ensure the risk of infection inside the correctional centres is reduced, if not obviated. So far they have been very successful in management of that issue.

79. According to this report, his history includes that he has lived on his own for over 30 years without any history of significant relationships. He has a 34 year old daughter living in Queensland with a son. He has had no contact with her since his incarceration. He attended several schools including at Prestons, Hazelbrook, Lawson and Katoomba. His parent moved around a lot, he said. He attended high school in Katoomba until the beginning of Year 10 and then was sent to live with his uncle in Sydney. He spent some time in high school at Mount Druitt. He denied any learning difficulties or repeating school years. He said he was good at mathematics. He undertook a hospitability course which he did not complete.

67. He has worked in an abattoir. He worked as a chef for the next 30 years in and around Sydney, but his income remained low and he entered warehousing. He was engaged in that work at the time of these offences, working for one of the large supermarket chains in their distribution centre in Western Sydney. He completed a course in training and assessment in late 2016. It was a stepping stone to management and to meet the risk of being pushed out as an older employee.

68. His medical history was discussed. He spoke in‑depth about the death of a young girl Vicki Barton. The murder of Vicki Barton was a notorious event in the Blue Mountains, which was published extensively in the media. The Crown has extracted some of the newspaper articles which reflect the significance of the loss of that little girl at the time it occurred. He represented a memory of circumstances surrounding her disappearance.

69. When the Crown did its research it found the judgement by Mr Justice Smart on 7 February 1992 when his Honour sentenced Alfred James Jessop after he determined the appropriate sentence upon amendment to the sentencing legislation that required the determination of terms for life sentences before then imposed in the Supreme Court. The relevant provision was s 13A, Sentencing Act 1989 which had been introduced by parliament for this purpose.

70. The Crown brought attention to the first paragraph between the heading "The Facts" on p 2 of the judgement which is in the following terms:

"At about 5.30pm on Wednesday 15 January 1969 Vicki Barton, then aged eight years and four months, had been given permission by her mother to go to the Lawson swimming pool, provided she was home by 8.30pm. She was last seen by her brother at a distance of some 150 yards near to where she would have commenced to cross the highway in the direction of the baths."

84. The judgement continued with the discovery of the little girl's remains in bushland nearby and the boast of the perpetrator speaking to another prisoner that he was responsible for the crime.

85. The significance in this case is that in the psychological assessment the offender represented facts concerning that little girl's death. In the section of the report beneath the heading "Medical History" on the fourth unnumbered page in that report, the following appears:

"He spoke in depth about a young girl, Vicki Barton, who was apparently taken and murdered by a man who lived in his street. He recalled that he'd always felt suspicious of his man and when his sister, Sharon, went missing some months before he went straight to this man's house and asked of her whereabouts. She apparently appeared walking down the street minutes later. He said that he was with Vicki Barton and walking with her to the swimming pool when she was taken. He expressed feelings of guilt and shame saying that she was walking behind him one minute and then missing the next. He recounted how he realised she was missing and ran to the pub to tell their father's (sic) she was missing. He apparently assisted in the search for her and felt responsible for her going missing. He said that he'd seen the later convicted murderer riding his bike past with her allegedly on the bike basket. He said 'she [Vicki] is always there [in my mind]'. And then he would often to drink to forget about what happened to her."

86. This is inconsistent with that part of the judgement to which I was taken and does not sit comfortably with a print media article that was also included in the Crown material.

87. From the Australian Women's Weekly Wednesday 24 September 1969 there is a description of the disappearance appearing at p 8 of an article which is included in the bundle. A further passage beneath the heading "Did she pass by here" provided a description of events that is not consistent with what is attributed to the offender in the psychologist's report.

88. One observation I would make is that the loss of this little girl in that period in 1969 being permitted at that age to go a swimming centre and be out till 8.30pm at night reflects a more innocent period in our history when children were allowed to roam more freely than is often the case in the present era.

89. The Crown suggests or does not cavil, I should say, with the proposition that the offender might be genuine in his perception of this history and his participation in it through some error of memory sparked by whatever publications were at the time, which, as I recall, in 1969 were quite extensive.

90. The Crown does not invite me to find that he was being deliberately manipulative in representing these facts as he did in this report according to the psychologist, but submits that I would not find that there is sufficient evidence upon which to conclude that his representations upon that point are true and correct. I agree with that submission. He might subjectively with the effluxion of time have developed a false memory which he represented in the course of these processes in which he participated for the determination of sentence upon his misconduct.

91. The report deals with his neuropsychological assessment. He undertook an intelligence test and was said to have produced results of premorbid intellectual functioning estimated to be within the low average to average range. The current intellectual functioning suggested that he was within the average range, but there were some significant discrepancies between his verbal and non-verbal skills. He was also assessed for attention and concentration and information processing, new learning and memory skills, and frontal and executive adaptive functioning.

92. The clinical opinion reached by this psychologist is expressed toward the end of the report, noting that his psychosocial history was only briefly canvassed due to his mood state and level of engagement.

93. There was reference to childhood sexual assaults though his reports regarding this were vague. He spoke of feeling guilt and distress associated with the death of Vicki Barton but unclear how close he was to the case and his recollection. He was eight years old at the time. He spoke of the diagnosis of post‑traumatic stress disorder but it is not clear about what this was in relation to and whether it was formally diagnosed.

94. He spoke of early behavioural issues, time in a Boy's Home at the age of 15, his status of a loner, his dependence upon alcohol, and referred to the death of his friend, a passenger of the motor vehicle for which he was responsible, which must be a reference to the sentence for aggravated dangerous driving causing death to which I earlier referred.

95. The report contains the following:

"The results of current neuropsychological testing suggests that on a background of likely Low Average to Average intellectual functioning he presents with relatively intact nonverbal abilities, attention, working memory, processing speed, new learning and memory, and executive functioning including abstraction, mental flexibility, visual reasoning, planning and organisational skills and idea generation. His verbal skills (Low Average) are a significant weakness relative to his nonverbal skills, although this is not unexpected given his reported history of disrupted and fairly limited formal education and employment history and practical base for occasions. He presents with a circumscribed deficit in his high order conceptual reasoning, with his frustration and temper interfering with his ability to focus and problem solve on more challenging tasks. Overall his cognitive profile appears to be relatively intact despite his chronic history of alcohol use."

96. It is suggested that he would meet the criteria for alcohol use disorder in sustained remission in the controlled environment with elevated symptoms of depression, anxiety and stress on a background of reports of post-traumatic stress from childhood. He had the cognitive capacity to engage in any treatment endeavours regarding alcohol use and sexual offending.

97. There was also the tender of certificates before Judge Noman; Certificate IV in Training and Assessment, which included topics such as making a presentation, planning assessment activities and processes, assessing competence and other matters relevant to that qualification. He has a statement of obtainment issued on 29 February 2016 in Vital First Aid Training Services.

98. In his case there was a raft of material provided. This included Justice Health documents, the first of which deals with a telehealth consultation noted on 12 May 2020 when he reported deterioration in mental state since his last review, impacted by his re-trial. He sought an increase in his antidepressant therapy to address anxiety related symptoms. His symptom pathology is there discussed.

99. There is further material with progress and clinical notes. These refer to significant trauma background with PTSD as a result and request for intervention in relation to coping/assistance with mental health concerns. This was a referral to a psychologist for that purpose. The clinical notes refer to attendance for dental care.

100. 29 January 2019, there was a mental health telehealth clinical measurement. This included a record of his history as a social drinker in the past which was inconsistent with what I know of him so far from his record. There is no mental health issue in the family. There is reference to the car accident, and a denial of suicidal ideation, there is reference to his feelings of stress, depression and anxiety, low concentration, and limited long‑term memory.

101. He submitted to a screening assessment on 1 November 2016 from which there is a report. There is a long‑term mental health plan included. This refers to attendances back in 2009.

102. On 8 September 2020, Susan Pulman & Associates provided a report prepared by Jessica Pratley. He was seen for neuropsychologist assessment by audio visual link on 4 September 2020. His background was discussed in similar terms to what is contained in the earlier document. He is here attributed with being a vulnerable child because his parents did not properly care for him and provided little supervision or attention or protection.

103. He suffered many traumatic events including many incidents of sexual abuse, molestation by his father's friend at the age of six, when that man was visiting his home. He told his father what the man had done and his father told this person off and then sat down and had a beer with him. At age eight, he was sexually abused by one of his brother's girlfriends who “was caught in the act”. He was called "a dirty little boy" and was blamed for the misconduct. At age 12 he was sexually assaulted by a neighbour, a local bus driver, who would often give him free bus rides. He would often stay over at this man's house.

104. He was angry towards adults in his life including his mother and his father. He spoke of an incident where he came home and found a removalist truck when he was ten. His mother was leaving the family. He begged her to take him with her but she left him behind with his alcoholic father who was perpetually boozing with his drunken mates and abusing him verbally. His mother sent for him several months later but sent him to live with his strict uncle in Sydney for about a year. He eventually got sick of being bashed and picked on and he ran away at the age of 15. He was sent to a Boy's Home at the age of 16 where he was sexually assaulted by the director of the institution.

105. He spoke of the violent death of two childhood friends. With regard to the Vicki Barton episode the following is included:

"He recalled that at age nine, he had taken a group of younger neighbourhood children to the local swimming pool. Amongst the children he said he was 'responsible for' was supervising, was a young girl called Vicki Barton. He recalled that while his attention was diverted, Vicki disappeared. He said 'a local fellow Alfred Jessop' was eventually caught and convicted for murder. Mr Clarke said this incident has haunted him all his life because he thought 'he was responsible' for her being snatched. In his early adolescence Mr Clarke described witnessing another traumatic death when one of his high school friends 'shot himself in the head'. He said he had vivid memories of his friend's body being removed from the house and placed in an ambulance."

106. The report continues with several traumatic deaths in his family including his sister's death in a car accident. She left behind young children placed in his mother's care. One child whom he said he helped raise committed suicide in gaol.

107. He lived on his own most of his life. There is a discussion of his education and employment, his alcohol and substance use and his mental health. Again, that history is not entirely consistent with what was contained in the earlier psychological assessment, perhaps because on this occasion he was being more responsive to the practitioner and was less concerned about abandoning the processes that were indicated on the earlier occasion.

108. One way or another he relies upon his history according to the report at p 5, where the following is written:

"Mr Clarke continued to deny the current offences. He said that his own childhood abuse had caused him such lifelong harm that it would 'unthinkable' that he would cause the same harm to someone else. He would not be drawn on the circumstances surrounding the offences."

109. Thus, by that representation, he disconnects whatever he suffered in the past with whatever motivation prompted him to engage upon the misconduct of which I have found him guilty. Although he has, if I accept what was attributed to him, suffered challenges throughout his formative years, upon his own representation attributed to him in this report there is no connection between what he suffered and what he did.

110. Neuropsychological assessment was performed and the clinical opinion building upon the representations he gave refers to the body of research that supports the proposition that repeated trauma in childhood is associated with structural and functional alterations in early brain development which can continue into adulthood and result in a wide range of cognitive, behavioural and psychiatric problems, including dysfunctional psychosocial and antisocial behaviours together with alcohol abuse, which in this case has shaped the offender's life, and are likely attributable to his complex trauma history.

111. The report in the last page continues:

"In terms of the current offences, it is difficult to comment on Mr Clarke's specific mental state at the time of offending given that he does not acknowledge the events. In terms of his neuropsychological functioning, Mr Clarke's observed memory deficits are not of sufficient severity to provide an explanation for his denial of the offences will stop the previously observed deficits in executive functioning do have I suggest that Mr Clarke has a neuropsychological vulnerability to the impulsive behaviour and poor judgment which he has displayed throughout his life. Further, his history of being sexually abused as a child is a known vulnerability for becoming a perpetrator of child sexual abuse, research indicating that up to 75% of all perpetrators are themselves victims of child sexual abuse (Glasseo et al, 2009)."

112. The report prepared by Dr Susan Pulman & Associates, relies heavily upon the history given by the offender which must be looked at with some circumspection in light of the contrasts to which I have alluded in respect of the Vicki Barton murder.

113. Sentencing courts are urged to employ circumspection when an offender does not enter the witness box and give the represented history under oath or affirmation and allow it to be tested under cross‑examination or researched further. I refer specifically to the judgement of Smart AJ in R v Qutami [2001] NSWCCA 353 and more recently in the judgement of Wilson J in Imbornonev R [2017] NSWCCA 144 beginning at para [57].

114. One must come to the view that he has had challenges in his formative years, when I consider his misuse of alcohol over time and the nature of offending upon which he has been found guilty in the past and for which he has been punished previously. But I do not accept that he suffered the experience that he represents he suffered with regard to the circumstances of the abduction of Vicki Barton. There is insufficient material before me upon the alleged history of sexual assaults and misuse by his family to allow me to make any definitive finding as to the extent of that and the impact it might have had upon him through his formative years. Clearly the psychologist has accepted the veracity of what he has had to say for the purposes of the report and hence the reliance upon the literature for the opinions offered upon such history accepted as accurate.

115. A report from Jessica Pratley was written on 23 June 2020 and once again there is a history of the family background, his employment, his education, reference to numerous experiences of sexual abuse throughout his life from when he was eight or nine years old, by a friend of his father who allegedly anally penetrated him one evening. He told his sister and his father but his father took no action but continued socialising with the man. He was abused by a female family friend who was 14 years old. Again, he was eight or nine. This girl had a reputation for abusing young boys. He said that his brother witnessed this girl abusing him and just laughed and shut the door. He later called him a "dirty little boy". I take that to be the brother.

116. He expressed frustration that nobody recognised what he was experiencing and offered no protection. He spoke of the sexual abuse by a bus driver around the same age. He was vulnerable, too vulnerable for people he said. The experiences of abuse were the only love he experienced as a child given his emotional neglect by his parents. When asked about any adults who cared about him as a child, he began to talk about employers when he was a young adult but with prompting denied ever feeling loved or accepted by adults in his childhood.

117. This history is also difficult to assimilate with the proposition that he was given the responsibility of accompanying these children, he claims, to the swimming centre at the time that Vicki Barton was abducted.

118. He referred to detention at Mount Penang Boys Home when he was 16, stripped naked and left in a cold room with officer's laughing at him. He was detained again when he was 16 but did not provide details of that though he claimed that he was physically and sexually abused by the director at the centre.

119. If any weight was to be attributed to these representations as significant as they would purport to be, it could not have but helped the offender's case if he gotten into the witness box and given more details so that this could be properly attested and assessed. The psychologists are not the people who are called upon to make the finding of fact in these proceedings. It is the sentencing judge and hence the circumspection urged by appellate courts before any such representations unsworn or without affirmation and untested are accepted.

120. There is a discussion of his father's death in 1997, his sister, his education, his psychosocial and relationship history, his new close friends have provided character references. There is a reference to his sexual development. There is a discussion of his first consenting sexual experience at age 16 and his perception of that. The comment is offered that his past experiences of abuse that he alleges have likely impacted upon his sexual development so that his understanding of sex and intimacy was grossly disrupted. This perhaps explains his late onset of masturbation it is said, assuming his account of that is accurate. As he grew older, he learned that sex was not to be perceived as dirty. He then provided a history of his ten consenting sexual partners, all of whom were female, all suggesting an average adult sexual drive. He had an adequate but superficial insight into consent.

112. There is a discussion of his physical health, his psychosexual assessment, and his experiences such as depression leading to antidepressants, hypervigilance and sleep disturbance. It is said he has limited insight into his psychological processes which is unsurprising given his developmental experiences and the quantity of alcohol he has consumed throughout his life.

113. His criminal history is discussed. The offences with which he was charged are discussed. He claims he did not commit them. He expressed remorse for the position in which he has found himself but he acknowledged that the children might have been traumatised a bit and were scared of older people through the court process. He accepted that if he did abuse them as they alleged, they would be absolutely traumatised.

114. There is a risk assessment and a discussion of the Static‑99R processes. He is said to be of an average risk of recidivism. His assessment on the risk for sexual violence protocol puts him at a moderate risk and there is some discussion of the various factors that would provide protection from further misconduct.

115. There is a handwritten document provided where he claims to have been threatened by three young inmates who gave him an ultimatum to leave or they would bash him. They did not want someone like him in their pod. He describes this as a standover situation. This material is provided in support of a proposition that he feels at least a measure of discomfort, if not, anxiety and of being at risk because of the nature of the offences with which he has been charged and of which he has been found guilty.

116. There was some discussion in the course of the presentation of the matter on the last occasion but it was ultimately resolved that he has been in the Special Management Area Placement for the last four years and thus has sought the opportunity for protection through that system. The Crown had put to me before that he had not sought to go into the protection facilities within the gaol but that appears not to be so.

117. There are documents including the report of an alleged assault upon him signed 8 August 2020 when he presented with bruising under his left eye. This allegedly included being bumped or having bumped into concrete in the shower, although the form is one that is used for an incident and is in the following terms, "Alleged Assault/Incident Form", and the description given of the event is in terms consistent with something not involving an assault. I understand it is before me to support the proposition that he fears retribution at the hands of other inmates because of the nature of the offences of which he has been found guilty.

118. There are a series of certificates showing his achievements throughout life extending back to 2001 including the qualifications for work in which he was engaged at the time of the offence. He clearly has the capacity for work. Accepting that he is at an age where he might be difficult to place, he has demonstrated a willingness and capacity to engage in employment if given the opportunity.

119. The COVID‑19 mental health issues for New South Wales prisoners is the subject of report by Dr Andrew Ellis, and as helpful as it is, it does not contain material which persuades me to the view that he should suffer a lesser sentence than imposed by Judge Noman SC, though there is clear support for the special circumstances that I would embrace including the extent to which the COVID-19 restrictions limit the opportunity he has to spend time with his sister in face‑to‑face visits.

120. Mr Ramrakha provided comprehensive written submissions in support of the offender to which I have had access. He places the objective gravity of these offences toward the bottom end of the range. I have already expressed a view with regard to that. He has gone into some detail with regard to the evidence relevant to each of three counts upon which sentence is to be imposed. He has looked to the various factors that would inform the assessment of objective seriousness consistent with what I had addressed earlier including the judgement of Fagan J in TO v R [2017] NSWCCA 12. The submissions here refer to how objective gravity would be much worse were there repetitive episodes of abuse or the use of the violence. But that is not this case and as the Crown quickly points out the absence of some aspect aggravating the objective gravity does not of itself serve to reduce the objective gravity below that which is the appropriate finding in respect of each charge.

121. The submissions include that there would be no finding available that there had be a breach of trust or any element of grooming. I do not agree with the proposition that there was no breach of trust. But I accept that there was no grooming and thus as I indicated earlier, these were opportunistic and not planned offences, but involved misconduct in the circumstances which presented to the offender and to which he surrendered.

122. I agree with the submission made that the breach of trust contemplated as an aggravating factor in the sentencing exercise is not captured here because of the relationship between the offender and these victims did not transcend the usual duty of care arising between people in particular circumstances. The phrase that is often used within another context is of situational vulnerability of which I find there is evidence here within the context of these offence provisions.

123. I agree with the submission that the criminal history is neutral insofar as the offender is concerned; although he cannot come before the Court as a person of good character there is no comparable behaviour in his past offending.

124. Alcohol abuse is advanced as a matter brought to account and his history including his capacity for self‑control or appreciation of the wrongfulness of his conduct. It is difficult to make to any assessment in that regard in the absence of his recognition and insight into the misconduct of which he has been found guilty. If he was intoxicated to any measure at the time of the offence, s 21A(5AA) Crimes (Sentencing Procedure) Act 1999 is engaged.

125. The psychological assessment I summarised. Hardship in custody is disclosed in the letter to which I have referred, and I would proceed upon the basis that he does at least subjectively have some concern about his safety in light of the offences with which he is charged. However there are measures available to him to provide protection if he wishes to avail himself of them including those in addition to the SMAP arrangements which I am told are in place.

126. Both counsel spoke to their submissions. In particular the submissions by Mr Ramrakha included the proposition that the finding of Judge Noman SC on p 4 was not available on the occasion this trial. Her Honour there said:

"As this matter is a sentence after trial I am required to require facts that are not inconsistent with the verdicts. I accept the victim's versions of the offending. I accept S experienced vaginal discomfort after the incident and that the bath incident was causally connected."

136. I agree with the submission made in respect of that which is terms that the event when SO suffered vaginal discomfort because of shampoo in the bath or the tub that she had entered and the observation made by Dr Tran of some redness to tissue of her genitalia is not sufficient to allow a finding beyond reasonable doubt that the redness was that the product of the offence against her causing inflammation aggravated or made painful when she entered the bath in which shampoo had been poured. The findings of Dr Tran regarding that redness were neutral. In this respect I would not conclude there was any connection between the bath event and the penetration that SO suffered from the offender.

137. The submissions included that there was no breach of trust and I have already dealt with that; I have referred to the circumstances to which I have alluded in the course of this judgement.

138. I am reminded that he had a significant gap in offending from 2004. I am reminded that he had a dysfunctional upbringing, but I do not find that there was sufficient connection between whatever is attributed to him in those reports and the offending in which he engaged. I am reminded that there are untreated psychological issues and post‑traumatic stress disorder upon his report, but as I said, all of that depends upon the veracity of what he had to say recorded in the reports and accepted by the psychologists which they might be in a position to do. But upon such matters that are supposed to be of such importance, as the sentencing judge given the task of making findings of fact for those purposes and denied the opportunity to make an assessment other than by way of the out of court representations, I have exercised, I believe, appropriate circumspection.

139. He is said to have a lack of sophistication such that he would not have capacity to come up with the version surrounding the Vicki Barton abduction and murder. As I have indicated, I accept the Crown's submission that subjectively he may hold a mistaken perception of his role as attributed to him but it is not consistent with objective material such as it might be.

The Sentence

140. That concludes what I want to say about the matter. As I indicated it is appropriate in my view that the sentence imposed by Judge Noman be adopted without increase, synthesizing all of the material that I have brought to account and discussed in this judgement.

141. Thus the offender stands convicted of the offences of which I have found him guilty, and in respect of the offences and the sentences indicated as appropriate by Judge Noman SC, I have come to the view that she was correct allowing for the differences that are to be found in her judgement when mine is compared.

142. Thus for count 2, I identify as appropriate a sentence of 6 years imprisonment with a non‑parole period of 3 years.

143. For count 1, 8 years imprisonment with a non‑parole period of 5 years.

144. For count 3, 10 years imprisonment with a non‑parole period of 6 years.

145. I specify an aggregate sentence of 12 years with a non‑parole period of 8 years from 27 October 2016. The non‑parole period will therefore expire on 26 October 2024 and the overall sentence on 26 October 2028.

146. I find special circumstances. The offender will need a longer period on parole, especially at the age when he will be eligible for it, to reintegrate with the community once he is released.

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Endnote

Decision last updated: 13 November 2020