R v CS

[2023] NSWDC 189

District Court

New South Wales

Medium Neutral Citation:

R v CS [2023] NSWDC 189

Hearing dates:

31 May 2023

Date of orders:

1 June 2023

Decision date:

01 June 2023

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 154

Catchwords:

CRIME – sentencing - historical child sexual abuse offences – presence of aggravating factors for each offence - one offence committed when a child – Bugmy principles – general significance of age at offending - delay before arrest – significance of ill health and hardship

Legislation Cited:

Crimes Act 1900 (NSW) ss, 71, 79

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 25AA

Cases Cited:

Aktar v R [2015] NSWCCA 123

Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002) (2002) 56 NSWLR 146

Bailey (1988) 35 A Crim R 458

Bugmy v R (2013) 249 CLR 571

Culbert v R [2021] NSWCCA 38

DH v R [2022] NSWCCA 200

DS v R; DM v R [2022] NSWCCA 156

Featherstone v R [2008] NSWCCA 71

Hoskins v R [2021] NSWCCA 169

MLP v R [2006] NSWCCA 271

PWB v R [2011] NSWCCA 84

R v AA [2017] NSWCCA 84

R v Cattell [2019] NSWCCA 297

R v Daley [2010] NSWCCA 223

R v Spiers [2008] NSWCCA 107

R v Todd [1982] 2 NSWLR 517

Richards v R [2023] NSWCCA 107

SW v R [2013] NSWCCA 255

Young v R [2022] NSWCCA 111

ZA v R [2017] NSWCCA 132

Texts Cited:

Nil

Category:

Sentence

Parties:

Office of the Director of Public Prosecution (ODPP)
CS (offender)

Representation:

Mr K Averre for the offender
Ms J Walshe for the Crown (solicitor)

File Number(s):

2021/00312531

Publication restriction:

Non-publication of the offender and the complaints’ names

sentencing remarks

Introduction

1. The offender is before the Court for sentencing following pleas of guilty on 6 October 2022, to which he adhered to at yesterday’s sentencing hearing, for one offence of carnally knowing a girl aged between 10 and 16 years (sequence 3), contrary to s 71 of the Crimes Act 1900 (NSW), and two counts of buggery (sequences 6 and 7), contrary to s 79 of the Crimes Act 1900 (NSW).

2. There is an extant suppression order on publication of the names of the victims and the offender to they will be anonymised in these remarks.

3. For sequence 3, the victim was JS. For sequences 6 & 7, the victim was GS. JS was a sister of the offender. GS was a brother of the offender.

4. The maximum penalty for the carnal knowledge offence is 10 years imprisonment. There is no standard non parole period for that offence.

5. The maximum penalty for the buggery offence is 14 years imprisonment. There is also no standard non parole period for this offence.

6. The offender also asked the Court to acknowledge his guilt on a Form 1 comprising an additional offence of buggery (sequence 5) to be taken into account and attaching to sequence 6.

The agreed facts

7. A statement of agreed facts, relevantly signed by the offender and by the offender’s solicitor, was before the Court.

8. From 1955 to 1968, the offender and his family lived on an old dairy farm in Figtree, Wollongong. This was a three-bedroom farmhouse. The offender shared a room with his brother, GS whilst his two sisters, JS and LS, shared a bedroom.

9. From 1968 to 1973, the offender’s family lived at a property in Wollongong. The property was also a three-bedroom house. In 1973 the offender’s parents separated, which led to the offender and his siblings first living in Annandale and then moving from refuge to refuge with their mother. The offender’s parents reconciled around 1974.

10. From 1973 to 1974, the offender and his family lived in Springvale in Melbourne. From 21 September 1974 until all children moved out, they lived at 13 Haige Street Wentworthville.

11. From the age of 5 years old, the offender was in and out of the Juvenile Justice system repeatedly. Records from Anglicare indicate that the offender was sent to Charlton Boys Home , Bowral as punishment. He was placed in custody there and was allowed to go home on some weekends. Some of the offending against the victims occurred during the time he returned home on weekends.

12. The offender moved around boys homes, between Bowral and Ashfield, until he was committed to the executive officer Charlton Church of England Boys Home until the age of 18 for a break, enter and steal offence committed in 1972.

Offending against JS

13. JS is the biological sister of the offender. There were a total of 4 incidents involving JS, however, only one of these incidents has been the subject of a charge due to the principle of doli incapax. These uncharged acts however were said to provide context.

14. Before I refer to these uncharged acts, it is appropriate to recognise the limited relevance that they have to the sentencing exercise. In Featherstone v R [2008] NSWCCA 71 Bell J noted at [74] that “[t]he significance of the circumstances in sexual cases that particular offences may be representative of a pattern of sexual misconduct is to deprive the offender of a submission that the offences were isolated lapses.” I accept the offender’s submission that the uncharged conduct does not serve to increase the objective seriousness of the individual offences. He is not to be sentenced for what might be considered other offending for which he has not been charged and tried.

The first incident (uncharged)

15. Between 1 January 1966 and 31 December 1967, at their property in Figtree, when the offender was home on a weekend visit from Bowral Boys Homes, and when JS was aged between 8 and 9 years old, the offender, then aged between 12 and 13 years, touched JS’ chest and tried to climb on top of her and rub his penis on her buttocks fully clothed.

The second incident (uncharged)

16. Between 21 September 1967 and 21 September 1968, at their property in Figtree, the offender came home from the boys home. JS was aged about 9 years old and the offender was 12 to 13 years old. JS was asleep in her bedroom when sometime in the middle of the night the offender climbed into JS’ bed and got under the covers. He started rubbing his body all over her. He was naked from the waist down. JS was facing away from the offender while he rubbed his penis on her legs. JS struggled against this and made noise. The offender put his hand over her mouth.

The third incident (uncharged)

17. Between 21 September 1967 and 21 September 1968, at their property in Figtree, the parents of the offender and victim were not home and the offender was left as the responsible person for the younger children. The victim was about 9 years of age and the offender was 12 to 13 years of age.

18. JS attempted to evade the offender whilst her parents were out by hiding in a milk shed on the property. But the offender found her and attempted to coax her into touching his penis. JS attempted to get away from the offender, however, he held her down and overpowered her. The offender said “it won’t take long” and placed his hands over the victim’s mouth as she was crying and screaming. JS was wearing a dress at the time and the offender tore her underwear and used his penis to penetrate the victim’s vagina forcefully. The offender hit the victim in the face, from which she suffered a blackened and bruised eye. JS suffered vaginal bleeding immediately following the violent and rough sexual assault and she was required to discard her torn and ruined underwear secretly.

The fourth incident (sequence 3)

19. At the time of the offence, JS was about 13 years old and the offender was 16 years old. Their family had moved to Wollongong whilst the offender was between the Boys Home in Bowral and the Ashfield Boys home.

20. The parents of the offender and victim were not home at the time. JS was inside the home in the longue room. The offender attacked the victim, grabbed her and held her down on the floor where he physically overpowered her. JS fought the offender and screamed. The offender forced his penis into the victim’s vagina. The victim screamed at the offender that she had her period, despite the fact that she did not in fact have her period. The offender ejaculated inside the victim and the penetration ceased.

21. The victim specifically recalls that she did not have her period as she was expecting this about a week later. This period did not come. Soon after this event, the victim suspected that she was pregnant at age 13 as she noticed a physical change in her body. Further, at this time, the victim’s and the offender’s parents were experiencing financial hardship and a marriage breakdown. The victim decided to tell her mother of the pregnancy when she was about 4 or 5 months pregnant. Not long after disclosing her pregnancy to her mother, the victim was admitted to St Margaret Hospital for unmarried mothers, in Sydney.

22. JS ended up giving birth to a baby boy on 16 October 1972 at Wollongong Hospital. JS was 14 years and one month old. The birth date is consistent with the conception date being at the start of 1972, when the victim was 13 years of age and the offender was 16 years of age. The victim believed the child to be a result of being sexually assaulted by the offender and as such decided that the child should be immediately adopted out.

23. Recent DNA results have been provided, as part of the Police investigation that confirm that the child born on 16 October 1972 in Wollongong Hospital was the child of JS. DNA analysis confirmed that the offender could not be the biological father of the child that was adopted out.

Offending against GS

24. Similar to JS, the offending against GS was not in isolation. Uncharged incidents, for context, have been agreed to, however, remain uncharged due to the principle of doli incapax.

Context incident (uncharged)

25. Between 1967 and 1969, when the victim was about 4 or 5 years of age and the offender was 12 or 13 years of age, the offender’s family visited him at Charlton Boys Home in Bowral. The offender and the victim swam in the pool and the offender swam up to the victim and put his hands down the victim’s swimming shorts and touched his penis.

26. The offender again touched the victim’s penis in a masturbating manner when they were getting changed in the change room.

Offence on the Form 1: Sequence 5 (to be taken into account when sentencing for sequence 6)

27. Between 1969 and 1971, the victim stated that this offending occurred when the family was living at Wollongong and when the offender was home on a weekend visit. The victim stated that he was about 5 or 6 years of age at the time. The offender was 14 or 15 years of age.

28. The offender was at a point in time where he was having weekend leave from the boys home, and he would return to the family home in Wollongong on weekends. The offender sexually assaulted the victim regularly when this weekend leave commenced.

29. On this occasion, the victim was playing in the yard when the offender pulled the victim into a room at the rear of the house and proceeded to force the victim into a ‘cuddle’ then removed the victim’s pants and touched the victim’s penis. The offender pushed the victim over the bed, holding his head down and physically overpowered him before the offender forced his penis into the victim’s anus. When the penetration concluded, the offender threatened to kill the victim if he spoke of the event. The offender said words similar to “if you ever say something I’ll fucking kill you and your sisters and mum and dad.”

Further context evidence (uncharged)

30. Following the sequence 5 offending, the offender was moved from Charlton Boys Home to Ashfield Boys home. The victim was chronically fearful of the offender as at this point the sexual abuse ramped up to be very frequent, and occurred on every visit when the offender returned home. There were occasions where the offender would force fellatio upon the victim. The offender did not anally penetrate the victim at the Boys Homes. The sexual assaults occurred at the family home.

Sequence 6

31. During October 1973, in Annandale, the offender was working with a catering company in relation to an event for the opening of the Sydney Opera House. The victim recalls the offender bringing food home. At this time, the victim was 9 years old and the offender had turned 18 in August.

32. The offender stayed at the house in Annandale. The victim was asleep in a bedroom which he shared with his sister. The offender woke the victim up that night and said to him “Don’t say a fucking word or I will kill you.” The offender held the victim down and forced his penis into the victim’s anus until the offender ejaculated.

Further context evidence (uncharged)

33. The offender sexually assaulted the victim in a similar manner to the sequence 6 offending a number of times following the sequence 6 offending, until the victim, his sisters and mother moved house again.

34. Between 1973 and 1974, the family moved to Springvale in Melbourne. The victim was 9 years old and the offender was 18 years of age. A number of assaults occurred at this address, when the offender visited the family.

Sequence 7

35. In 1979, the victim was 15 years of age and the offender was 24 years of age. The offender moved to Port Kembla in NSW and the victim assisted the offender to move his property from the family home in Wentworthville.

36. Whilst at the residence in Port Kembla, the offender approached the victim and removed the victim’s clothing. The victim was unable to fight the offender off and was very fearful of the offender. The offender forced his erect penis into the victim’s anus until he ejaculated.

37. In 1980, when the victim was 16 years of age and the offender was 25 years of age, the offender visited the family home in Wentworthville. The offender was attempting to coax the victim into a detached shed at the rear of the premises. The shed was converted in part to accommodate the offender when he came to stay with the family.

38. The offender head-locked the victim and attempted to drag the victim into the shed. The victim punched the offender in the head, which enabled the victim to escape the offender’s grip. The offender became quite angry and chased the victim through the backdoor and into the main house. The victim of Sequence 3, JS, witnessed the event, closing the sliding door on the offender as he chased the victim.

39. The offender did not sexually assault the victim, GS, again.

The investigation

40. The offender has had little to no contact with his siblings, the victims, since his late twenties.

41. In 2020, police spoke with a witness, James Mannix, who recalls events between 1979 and 1982 very vividly. He recalled a conversation with the offender whereby the offender said to him “that was a long time ago”, in reference to sexual assault allegations put to him by Mannix.

42. On 12 October 2021, CS, the offender’s other sister, participated in a Surveillance Device recorded call to the offender. The offender did not make any direct admissions about offending against anyone. CS passed away two days later.

43. On 19 October 2021, GS, participated in a Surveillance Device recorded call to the offender. During the call GS informed the offender that their sister had passed away. They arranged to meet the following day.

44. On 20 October 2021, GS met up with the offender. The offender apologised to GS for doing what he did. He said “I am going… to apologise. I’m sorry”. He did not explain why he did what he did. GS asked the offender if people were touching the offender whilst he was at the Boys Homes, and the offender said that they were, and that it was the people that ran the homes. GS explained that he remembered the things that the offender did to him and they were stuck in his head.

45. On 26 October 2021, Police interviewed the offender and the victims’ mother. She stated that she recalled there being complaints about abuse by the offender when the children were younger. She stated that she did not believe them at the time and did not think someone in her family could do that. The offender’s mother stated that the offender was not Aboriginal and denied that she had a still born and that he was switched at birth. She stated that she wished she did have a still born.

46. On 3 November 2021, the daughter of the victim JS, HS, participated in a Surveillance Device recorded call to the offender. During the call, HS stated that her mother was still alive and asked the offender if he was the father of her mother’s first baby (which the victim had when she was 14 years old). The offender stated that he was not the father and that Bruce Bill’s son was. The offender then stated “Oh look, I’m not gunna lie to you, girl. I had sex with your mum too, yes. I did.”

Assessment of the objective seriousness of the offending

The parties’ submissions

47. In his written submissions, the offender’s Counsel submitted that each of the offences fall below the ‘mid-range’ of objective seriousness. Following the Court of Criminal Appeal’s decision in DH v R [2022] NSWCCA 200 and especially, with respect, the additional observations of Yehia J, that terminology may be inapt.

Sequence 3

48. The offender submitted that this offending fell at the lower end of the range of objective seriousness due to the age of the offender and the short duration of the offence.

49. The Crown submitted that this offending fell above the middle of the range. The Crown referred the Court to MLP v R [2006] NSWCCA 271, where Kirby J (Grove and Hislop JJ agreeing) said at [22] that the age of the victim is unquestionably an important consideration in determining objective seriousness of a crime, saying that ‘no doubt as a generalisation, the younger the child the more defenceless and vulnerable’.

50. The Crown further submitted that although the offending for most of the offences were relatively short, that fact is not unusual for offences of this type: R v Daley [2010] NSWCCA 223, Price J (Hodgson JA and Fullerton J agreeing) at [48].

Sequence 6

51. The offender submitted that this offending fell below the mid-range of objective seriousness given the age of the offender.

52. The Crown submitted that this offending fell just above the mid-range.

53. The Crown referred the Court to SW v R [2013] NSWCCA 255, where the victim of offending, contrary to s 66A, was 5-6 year of age, Johnson J (Hoeben CL at CL and Bellew J agreeing) observed at [47] that the age of the victim, far removed from the statutory ceiling was treated as a highly aggravating factor.

54. I note that the victim, GS was 9 years of age at the time of the offending of sequence 6.

Sequence 7

55. The offender again submitted that this offending was of little duration. The offender’s Counsel submitted that none of the offending was accompanied by gratuitous violence.

56. The Crown submitted that this offending fell within the middle of the range.

57. The Crown emphasised that the victim was 5 – 6 years of age at the time of the offending for sequence 5.

Consideration of objective seriousness of offending

Seq 3

58. For this offence, consent, or its absence was not an element. But the undoubted fact that the offending occurred without the victim’s consent is a matter which is relevant. Other matters which weigh on my mind are both the forcefulness and roughness of the sexual intercourse which occurred (I refer to the violent act of punching the victim separately as an aggravating factor) and his ejaculation. This heightened the risk of pregnancy; naturally leading to concern as to the identity of the father for the child she was soon to conceive; even if later events dispelled that particular concern insofar as the effect of the offender’s conduct on her was concerned.

59. I treat this instance of offending as, objectively, highly serious even if the offender was young and there was a narrow age differential with the victim and even though the victim was at the higher point of the age range for this offence.

Seq 6

60. For this offence, there was a significant age differential. The offender was an adult and the offending was perpetrated against a young boy. The sexual intercourse was rough. The nature of the sexual activity (though not determinative) was very significant. The circumstance that it was of short duration does not assist the offender. The offence did not carry an element of absence of consent at the time of the offending. The offender ejaculated in the victim which exacerbated the seriousness of the offending. In my view the absence of consent also made the offending more objectively serious.

60. Objectively, I consider that this offending was serious.

61. I should note that, contrary to the Crown’s submission, I have not taken into account the circumstances of the additional offence on the Form 1 into account when assessing the objective gravity of this principal offence. I explain how I take that additional offence into account in a later section of these remarks.

Seq 7

63. Although the victim (and the offender) were older when this offending occurred, the main factors germane to the objective seriousness of this offending were materially the same as for sequence 6. The offending was objectively serious.

Aggravating Factors

Actual or threatened use of violence

64. The Crown submitted that the offender’s threats of violence to the victim, GS, during the sequence 6 offending when the offender said “don’t say a fucking word or I will kill you” aggravated the offending.

65. The Crown submitted that the same could be applied to the sequence 3 offending when the offender ‘overpowered’ the victim, JS, when she attempted to fight the offender off and screamed out, but she was not successful.

66. The offender’s Counsel submitted that if the Court takes into account when assessing the objective gravity of the offending, the threat of violence in relation to sequence 6, then it cannot be used as an aggravating factor. Similarly, in regard to sequence 3, the offender’s Counsel submitted that if the overpowering of the victim is to be used in the assessment of the objective seriousness, then similarly it cannot be used as an aggravating factor.

67. Since I have not treated the threats of violence and infliction of actual violence in the way that the offender apprehends I might, I do take them into account as statutory aggravating factors for sequences 6 and 3, respectively.

Offences committed in the home

68. The Crown referred in its written submissions to the fact that the offences were committed in the victims’ respective homes, in Wollongong and Annandale, and cited the observations of Wilson J in Aktar v R [2015] NSWCCA 123 at [63].

69. The offender’s Counsel did not dispute the applicability of the aggravating factor, but diminished the weight to be accorded to it, given that the victims shared the home of the offender. He did not cite authority for this circumstance to suggest that the circumstance that the offending also occurred in the offender’s home diluted the weight to this circumstance. In my view, the submission should be rejected: cases must be too numerous to cite where an offence of some kind of violence against a victim, whether it be of a sexual nature or not, have been perpetrated in the family home lived in by the offender.

Position of trust

70. The Crown submitted that the offender abused a position of trust in relation to each of the victims. He was the elder brother of each of the victims; and was 3 years older than JS and 9 years older than GS. The Crown submitted that general deterrence is to be taken into account when considering an abuse of trust.

71. The Crown however did not submit that the offender was in any “position of authority” over the two victims, despite him being left to sometimes look after the two victims when their parents were out. The position of trust was rather based on the older sibling relationship, which the Crown says aggravated the abuse, especially in relation to GS.

72. The offender conceded that he was in a position of trust, however, submitted that in relation to JS, there was a very limited age difference and therefore, little weight should be given to this aggravating factor.

73. I accept the offender’s submission in relation to JS but note that nothing was said to diminish the force of this factor as it applied to GS.

Vulnerable victim: GS

74. The Crown submitted that the victim GS was a vulnerable victim due to his young age. The Crown submitted that the charges of “Buggery” before the Court do not include age as an element, and as such, the vulnerable age of GS should be considered as an aggravating factor to this offending.

75. The offence in relation to JS does, by contrast, include age, or an age range, as an element of an offence and as such, the age of JS should not be double counted. Nevertheless, I accept the Crown’s submission that the age of the victim at the time is not irrelevant in the context of assessing the victim’s vulnerability:” PWB v R [2011] NSWCCA 84 at [12]. I note the factor arises in relation to GS.

The offence on the Form 1

76. I take into account the additional offence when sentencing for sequence 6 in accordance with the principles of the guideline judgment, Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No.1 of 2002) (2002) 56 NSWLR 146. Ordinarily, the additional offence will increase the penalty for the primary offence (seq 6) by elevating the considerations of specific deterrence and retribution. However, given the offender’s age, his incapacity and risk of reoffending (to be explored later in these remarks), subject to a qualification, those considerations as applied to sequence 6, do not significantly elevate the penalty.

77. The qualification is that for sequence 5, the agreed fact 26 indicates that the offending was accompanied by death threats to the victim and other family members if the victim reported the offending. This does elevate the force of the consideration of retribution to the primary offence.

Victim Impact Statement

78. The victim GS provided the Court with a Victim Impact Statement.

79. The VIS spoke to the victim keeping the offending a secret as he feared for his safety. GS spoke to reporting the offending behaviour to his mother, however, he was disbelieved and he received a belting for what they thought was his lying.

80. GS spoke of nightmares and that he does not enjoy sleeping as he keeps dreaming that the offender will come into his bedroom and do things to him. He spoke of never feeling safe as a child, he was always terrified that the offender would come back at any time.

81. GS detailed that he rebelled at school and that the offending had a huge impact on his education, which held him back from having a career and earning an income.

82. GS questioned why his big brother did not protect him and his sisters and instead hurt them and terrified them. He spoke to the difficulty of reporting the offending behaviour.

83. I am to have regard to the trauma of sexual abuse on children understood as at the time of sentencing. This has been acknowledged many times by the Courts. For example, in Culbert v R [2021] NSWCCA 38 Adamson J (as her Honour then was, and with whom R A Hulme J agreed) wrote at [115]:

“It has become a matter of common experience in this Court that the adverse psychological effects of sexual abuse on children tend to be long-lasting. …….. The typical effects, as appear in judgments of this Court, include difficulties with intimate relationships, self-loathing, guilt, self-harm and a tendency to self-medicate.”

84. I note the Crown’s concession that the aggravating factor in s 21A(2)(g) was not engaged in the instance of either victim.

Subjective circumstances

Age

85. The offender is currently a 68-year-old male, however, was between the ages of 16 – 24 years of age at the time of the offending. In his written submissions, the offender’s Counsel referred the Court to the matter of Young v R [2022] NSWCCA 111 (“Young”) where the significance of the age of the offender at the time of the offending and the context of delay were considered by the Court of Criminal Appeal. I will address the issue of delay later in these remarks.

86. As to the significance of the offender’s age at the time of the offending, in that decision, N Adams J (Bell CJ and Button J agreeing) approved a passage from R v AA [2017] NSWCCA 84 when, at [55], Beech-Jones J (as his Honour then was, and with whom Leeming JA and R A Hulme J agreed) said about the offender’s age in the context of sexual offences (citation omitted):

“…. in the context of a sexual offence some aspects of an offender’s personal circumstances may bear upon the “nature of the offending” …. For example, the age difference between a sexual offender and their perpetrator can affect an assessment of the objective seriousness of the offending. Additionally, the age of the perpetrator can be relevant to an explanation of the context in which the offending occurred.”

87. I am satisfied that leaving aside the other impacts from a disadvantaged childhood, the offender’s youth at the time of the offending – especially for the sequence 3 when he not an adult – had an impact on his offending and diminished his responsibility.

Background

88. The offender relied upon a psychological report of Mr Patrick Sheehan, a forensic psychologist, dated 27 March 2023. Although care needs to be taken in accepting untested out of court statements (the offender did not give evidence at the hearing), Mr Sheehan considered that the offender appeared genuine, albeit struggled to provide a coherent and fulsome history. Mr Sheehan was not required to attend the hearing where his views, in this or in any other respect, could be more closely scrutinised.

89. The offender reported to his psychologist that he was adopted at birth and that he had never met his birth parents.

90. The offender told the psychologist that he identified as having ancestry from the First Nations peoples. As indicated, the offender’s mother disputed this. It is unnecessary to resolve this dispute about his ancestry: “Bugmy “ principles are not limited by racial group: Hoskins v R [2021] NSWCCA 169 per Basten JA at [1]. He reported being subject to persistent domestic violence in the home, being physically beaten by both parents, often without any provocation. He said he was hit in the head with a metal bar, causing permanent hearing loss in one ear. He felt that he was often punished for the misbehaviour of his siblings. He grew to hold an intense resentment towards his parents.

91. The offender reported having been sexually abused by an older male family friend during his early teens. He said that he spoke out but was not believed. He said he ran away from home to avoid the abuse. He said he was also sexually abused on several occasions in boys homes. He said that he discovered he was adopted at the age of 14 years when his father was beating him and calling him “a black cunt”. He reported being shocked and confused by this information.

92. The offender stated that he cut off all contact with his family 30 years ago and has been estranged from all family members since that time. He said that he heard his parents have died. He said “I hate them. I don’t care.”

93. The offender experienced learning difficulties growing up and experienced trouble at school. His schooling was interrupted by his juvenile detention. His formal education ceased during year 8.

94. The offender explained that he has had employment in the past, however, this has been interrupted by time in custody. Since his late twenties he has relied on unemployment benefits. He is now on a pension.

95. The offender has 5 children to 3 different mothers. His eldest son passed away from alcohol poisoning in 2020. The offender reported being in a relationship for the past 10 years, however, he has had no contact with his partner since his admission to custody, due to not having her phone number. His psychologist opined that the offender’s inability to resolve simple problems or conundrums like this raises questions regarding his critical thinking capacity.

Mental impairment, physical health and substance abuse

96. When pressed by his psychologist, the offender was unable to propose any link between his experience of childhood sexual abuse and his own sexual abuse behaviour, which were at least temporally linked. He denied a broader pattern of sexual interest in children to his psychologist but acknowledged having sexually offended against one of the victims. He denied any interest in non-consenting sex.

97. The offender reported a significant history of substance abuse. Significantly, the offender has smoked cannabis prolifically throughout his life. The offender has never participated in a residential rehabilitation program or any other AOD intervention.

98. The offender has suffered from emphysema since 2019 and gastro oesophageal reflux. He reported his deterioration in health and functioning over the past 5 years. The offender has an inguinal hernia which he intended to obtain surgery for in 2020, however that was postponed due to the pandemic. He has been advised that he is unable to obtain the surgery in custody until 2024.

99. The offender was transferred to MSPC 6 weeks prior to the psychological report and was diagnosed with type 2 diabetes.

100. Mr Sheehan opined that the offender’s reported symptoms were consistent with an adjustment disorder. He also met the criteria for Cannabis Use Disorder (severe, in early remission in a controlled environment). Mr Sheehan further opined that his sexual offending could be thought to constitute a disordered sexual behaviour, given the young age of the complainants and the offending being over several years. However, given that the offender was himself a child when the offending commenced, the offending did not support a diagnosis of Paedophilic Disorder.

101. Mr Sheehan opined that given the offender’s broader pattern of impulsivity and interpersonal exploitation, there was a strong possibility that the offending was opportunistic as opposed to being based on an underlying paraphilic condition. Although he deferred diagnosis, Mr Sheehan opined that a connection between the offender’s own sexual abuse experience and his offending behaviour could exist given the temporal association of the two events. Mr Sheehan however stated that the offender was unable to provide any insight into this connection, even with prompting.

102. Finally, Mr Sheehan opined that the offender met the criteria for antisocial personality disorder.

103. None of this evidence was challenged by the Crown and I accept, on the probabilities that the offender had these disorders.

Bugmy principles

104. The Crown conceded that Bugmy principles are engaged. Although there were other mental impairments or disorders, as I have noted, it is difficult to ascribe any additional contribution of that particular factor as contributing to the offending. I am mindful of the observations of Beech-Jones CJ at CL in DS v R; DM v R [2022] NSWCCA 156 at [96] in this regard.

105. It may be accepted, and the Crown (in my view) correctly conceded the engagement of Bugmy principles: these reduced the offender’s moral culpability and moderated the weight to be given to general and personal deterrence (as well as retribution and denunciation).

106. It is often the case that for offenders whose impairment of executive functioning and inability to control violent impulses contributed to the offending, that the sentencing judge will have regard to whether a demonstrable inability to control violent urges will augment the force to be given to protecting the community (Bugmy at [44] ). But in this category of case, the salience of that consideration is affected by the onset of age and other health conditions in the offender which reduce the likelihood of his reoffending. I will return to this matter later in these remarks.

Antecedents

107. The offender has a significant criminal history dating back to when he was a child and expanding across NSW and Victoria borders. His offending includes break, enter and steal offences, drug related offences, an assault offence, domestic violence offences and driving offences.

108. Further, as noted earlier in connection with the significance of the uncharged conduct, the offending here could not be regarded as isolated acts of aberration.

109. But as Mr Sheehan noted, consistent with the ageing process, there had been a reduced frequency of offending since the offender’s mid to late forties. What is more, beyond the lamentable history indicated in this proceeding, there is no other history of sexual offences. This is relevant to the considerations of specific deterrence and the likelihood of reoffending.

110. Nevertheless, the offender’s record is not one that entitles him to leniency.

Guilty Pleas

111. The offender pleaded guilty to the offences on 6 October 2022 at the Parramatta Local Court.

112. The Crown acknowledged that the offender is entitled to the full discount of 25% for his pleas of guilty. That discount should be given for all the pleas.

Remorse or contrition

113. Despite his pleas of guilty, during his interview with Mr Sheehan, the offender gave only a partial acknowledgment of the offences and was unable to offer much by way of remorse. He did, however, apologise to GS in October 2021. There was nothing to indicate remorse when the offender spoke to JS’ daughter in November 2021.

114. Th Crown submitted that the offender demonstrates a significant lack of insight and remorse. This was so despite a temporal connection between his own reported instances of being a victim of sexual abuse and the offending events.

115. I find that he is partly remorseful for his conduct towards GS, but no remorse for the offending perpetrated upon JS.

Rehabilitation prospects and likelihood of reoffending

116. According to his psychologist, the offender has never participated in a residential rehabilitation program or any other AOD intervention to curb his significant substance abuse.

117. The offender is presently 67 or 68 years of age and it has been submitted that he is of poor health. Mr Sheehan observed that he presented to him as frail (which accords with my own observation of him at the sentencing hearing) and had multiple health chronic complaints.

118. Mr Sheehan opined that the offender’s risk of reoffending would be in the ‘below average’ range using standard actuarial instruments where he scored 0 out a possible 13 points on the Static 99R instrument. Mr Sheehan had earlier indicated that he did not favour a diagnosis of Paedophilic Disorder.

119. According to what the offender told Mr Sheehan, he has little pro-social support and I find that he has next to no prospects of future employment.

120. The offender’s Counsel submitted that the offer has rehabilitated himself to the extent that he is at a low risk of sexual re-offending. His Counsel also submitted that the offender’s pattern of offending concluded many years prior to his arrest. This is some evidence of the offender’s progress towards rehabilitation: R v Todd [1982] 2 NSWLR 517 at 519.

121. The Crown submitted that there remains a risk of reoffending. The Crown referred to the offender’s breach of a bail condition to not be in contact with children. It was submitted that this would cause the Court difficulty in finding that the offender has no risk of re-offending. The circumstance alone indicated that the considerations of specific deterrence and the need for the sentence to protect the community remained applicable.

122. I find that the likelihood of reoffending is remote, although not eliminated, and offender’s rehabilitation prospects are reasonable. These considerations are usually very significant in offending but in the circumstances of his case, have relatively low weight.

Delay

123. A significant number of years have passed between the offending and the current sentencing proceeding.

124. The offender’s Counsel heavily relied upon the Court of Criminal Appeal’s decision in Young where N Adams J (with whom Bell CJ and Button J agreed) at [35]-[38] closely considered the significance of delay in child sexual abuse cases where the abuse was committed by a perpetrator who was himself a child. Some of the points raised by her Honour were adopted by the offender’s Counsel in this case:

• For sequence 3, the offender lost the opportunity of having this particular offence determined by a procedurally and substantively very different regime in the Children’s Court. In particular, and as consequences: (a) the greater force attributed to his rehabilitation in the Children’s Court was no longer a primary sentencing principle in this Court; and (b) he did not have a criminal history at the time of the offending; but he does now; and (c) he lost the opportunity of presenting himself to the Children’s Court as a person of good character

• For sequence 7, this offending occurred much later, in time, than the offending for sequence 6. The consequence of significant delay to arrest meant that, for this offence, the offender lost the possibility of addressing his own childhood abuse in a way that might have reduced the risk for this offending;

• For all sequences, because of recent developments in sentencing law, the offender lost the opportunity to be sentenced: (a) in accordance with sentencing patterns and practices “at the time of the offending”, rather than at the time of sentencing; (b) with reference or comparison with any standard non-parole period; and (c) with consideration of the possibility that he might obtain an order that any term of imprisonment be served under intensive correction.

125. All of this being accepted, care needs to be taken lest the consideration of delay be centred entirely from the perspective of the offender and the disadvantages and detriments of the kind referred to in Young.

126. In R v Cattell [2019] NSWCCA 297, when considering this factor, the Court of Criminal Appeal emphasised the reasons for delay, the opportunities for the offender to admit their offending in the period of delay and the benefits of delay to the offender (at [135]-[142]).

127. In Young itself, N Adams J acknowledged (at [50]) that a common reason for delay in children complaining of child sexual abuse was that the perpetrator threatened the child about consequences of complaint.

128. Very recently, in Richards v R [2023] NSWCCA 107, Adamson JA (Beech-Jones CJ at CL; Price J agreeing) observed (at [94]):

“It is not uncommon for there to be a significant delay in the reporting of child sex offences, with the consequence that an offender may be at liberty for many years following the initial offending, with the opportunity to commit further offences, which, in turn, may not be the subject of charges for decades afterwards. The delay in the present case can be taken to be the consequence of the nature of the offending (sexual abuse of children, in this case, boys), which typically renders the victims loath to report the matter to authorities because of the fear, trauma and shame associated with it”

129. At [96], Adamson JA approvingly cited the following passage from the decision in R v Spiers [2008] NSWCCA 107 (at [37]-[38]):

“Thirdly, and linked with what I have last said, in his reference to the delay of ten years during which, although not in fear of a knock on the door, the respondent had been troubled by what he had done and the prospect ‘that eventually this day would come’, the judge appears to have regarded being troubled during the period of delay as a matter in favour of the respondent. That is not so. As was said of delay in R v Hathaway [2005] NSWCCA 368 at [43] –

‘… it is only the suspense or uncertainty which follows the intervention by the authorities, including … arrest which is relevant. … Where an offender remains silent hoping that the offences will not be discovered a reduced sentence is for this reason inappropriate: see R v Webster [2005] NSWCCA 110’.

38    To the same effect see R v Shorten [2005] NSWCCA 106 at [19] per James J, Hislop and Hall JJ agreeing –

‘It is well settled that the only state of suspense or uncertainty which will be relevant is any state of suspense or uncertainty experienced by the offender after he has been arrested or after it has been indicated to him by some person in authority that he is likely to be prosecuted for the offence. Any suspense or uncertainty on the part of an offender as to whether his committing of the offence will ever be detected is not to be taken into account. See Kay [R v Kay [2004] NSWCCA 130] especially at paras (30) to (33) and R v Law (Queensland Court of Appeal) (1995) 84 A Crim R 142 at 145 per curiam”.

130. In addition to the matters referred to by Adamson JA, there was a threat made by the offender against GS (associated with the offending for sequence 6: Agreed Fact 29). Of course, the threat was made so many years ago, contemporaneously with the offending and some might think that the effectiveness or efficacy of the threat upon a victim’s contemplation to complain or report the offending might recede or wane as time passes and the physical capacity and health of the offender naturally reduces in a way that would inhibit the execution of the threat. I consider such a view to be misconceived. I have referred to what the victim GS stated about this in his Victim Impact Statement. The flow of a significant passage of time, from the making of the threat, to the offender’s arrest for a crime of this nature, should not be assumed to reduce the significance to be given to the threat by the victim. The making of a threat by an offender would only likely reinforce, and perhaps add, to the reluctance of a victim to come forward because of fear, trauma and shame associated with the offending.

131. The point of all of this analysis of this particular sentencing consideration is that whilst I acknowledge some mitigating force to delay, especially for sequence 3 (because of the discrete detriments), the existence of the threat to GS materially neutralised the significance of delay as a mitigating factor for sequences 6 and 7 and does not necessarily result in a more lenient sentence.

Hardship

132. The offender explained to his psychologist that “I don’t think I will survive gaol” if he spent years in custody. The offender suffers from poorly controlled blood sugar. He explained that it is hard to control his diet in custody given that he has no control over what meals are provided and when. He said that he feels that his health is following an insidious trajectory and he fears that he will die in gaol if given a substantial custodial sentence. The offender described a sense of loss, having lost his public housing and all of his possessions whilst on remand. He said he has nothing left in the community.

133. The offender also indicated that he had received threats of violence from other inmates as a result of circulation of reports of his offences. This has led to fear and a heightened sense of vulnerability.

134. Mr Sheehan anticipated that the offender is unlikely to be offered sex offender treatment programs in custody and that it will be difficult to treat him in standard group based psychological programs.

135. The offender’s Counsel submitted that due to the offender’s medical needs and advancing age, imprisonment will have an adverse effect on his health. I accept that submission. Nevertheless, it cannot overwhelm the need for a sentence to be proportionate to the very serious nature of the offending so many years ago (see for example, the observations of King CJ in Bailey (1988) 35 A Crim R 458 at 462).

136. I acknowledge, further, that for an elderly person, each year spent in custody represents a substantial proportion of the remaining years of life he may expect.

137. Overall, however, I accept that his time in custody and his future time in custody has been, and will be, hard on him for the reasons I have identified. Contrary to the offender’s submission, however, given the gravity of offending (embracing both the objective seriousness of it, and the statutory aggravating factors), this particular consideration is not compelling as to the length of the term. It does, however, have particular significance on the aspect of special circumstances.

instinctive synthesis

Sentencing patterns

138. By s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court must sentence the offender for child sexual offences in accordance with sentencing practices and patterns at the time of sentence. I have had regard to the sequence of steps for sentencing for such offences as explained by Price J in R v Cattell [2019] NSWCCA 297 at [123]. The offences are ‘child sexual offences’.

139. I am required to be explicit: the offender is to sentenced in accordance with s 25AA(1) and the court has had regard to the trauma of sexual abuse on the victims, who were children at the time of the offences perpetrated upon them, in accordance with s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

140. I take into account the maximum penalties for the two offences, as they were at the time, as a legislative guidepost. In particular, the maximum penalties indicated that the carnal knowledge offence was less serious than the buggery offence in nature. I have observed that there is no standard non parole period applicable to the offences.

141. I am also required to consider all of the considerations in s 3A of the Crimes Sentencing Procedure Act 1999 (NSW). For aging offenders of historical child sexual abuse, somewhat unique considerations apply, even if it is fairly readily apparent what the appropriate sentencing option should be, which is the case here. I speak here about the length of the sentence.

142. In my view, circumstances of ensuring adequate punishment, and the related principle of proportionality, is very significant. So too is the similar consideration of holding the offender to account. The significance of recognising the harm to the victims is especially significant in cases like these. I have noted that general deterrence, denunciation and retribution are moderated, given the offender’s childhood background, but they are not eradicated. Nevertheless, the offender’s life circumstances are somewhat exceptional. I have noted that general deterrence, denunciation and retribution are moderated (although I refer to what I said about the additional offence and its significance for the applicability of retribution for the sequence 6 offence), given the offender’s then age, his childhood background and opportunities lost by his delayed arrest (especially for seq 3), but the force of those considerations is not eliminated. Given his age, and ill health, considerations of specific deterrence and the need to protect the community are also reduced. This is so notwithstanding his recent breach of a bail condition. But so is the weight to be accorded to the need to rehabilitate the offender. To elevate that consideration unduly would diminish his history.

143. I am satisfied that the s 5(1) threshold is crossed. This was conceded by the offender’s Counsel.

144. Whilst cautioning the Court from any reflexive reliance upon them, the Crown supplied Judicial Commission statistics identifying sentences for the offences under ss 71 and 79 of the Crimes Act 1900 (NSW), respectively. These are, however, bare statistics that say nothing about the subjective circumstances of the offender; or even the nature of the offending.

Indicative sentences

145. I propose to deliver an aggregate sentence. The indicative sentences (taking into account the guilty pleas for all offences and, in the case of sequence 6, the additional offence on the Form 1) are:

Sequence 3:      1 year and 6 months imprisonment

Sequence 6:      3 years’ imprisonment

Sequence 7:      2 years and 4 months’ imprisonment

Totality

146. The offender’s Counsel submitted in considering the principle of totality, the Court is to avoid imposing a “crushing” sentence upon the offender. He submitted that at this stage of the offender’s life, any significant extension of the non-parole period currently being served would be “crushing.”

147. The Crown submitted that the Court should be concerned that in allowing excessive concurrency, the community might consider that the offender is effectively receiving a discount for multiple offences. It stressed that there were two victims, with the events separated in time. This warranted a measure of accumulation. I accept those submissions.

148. I am mindful to avoid a ‘crushing’ sentence. It is important however to observe, as the Court of Criminal Appeal did in ZA v R [2017] NSWCCA 132 per Johnson and Fullerton JJ (Payne JA agreeing) at [78], that:

“To attempt to erect …. a second limb of the totality principle which concentrates on the offender’s subjective circumstances to determine whether the total sentence is “crushing”, is not supported by authority”

Special circumstances?

149. The Crown submitted that a finding of special circumstances may be required on account of the (appropriate) accumulation of sentence. Otherwise, the Crown submits that no further finding of special circumstances is warranted. The offender will be subject to a lengthy period on parole applying the statutory ratio.

150. In my view, the hardship (manifested in the variety of ways I have indicated) which has, and will continue to afflict the offender as a consequence of his incarceration, is a matter that justifies a finding of special circumstances.

Commencement date for sentencing

151. The offender has been in custody for a total of 11 months since 1 July 2022 following a breach of bail. The Crown conceded that the sentence imposed should be backdated from 1 July 2022. The sentence will be backdated to take that period into account.

SENTENCE

152. Could the offender please stand.

153. You are convicted of the offence of carnal knowledge of a girl aged between 10 and 16 and the two offences of buggery.

154. I sentence you to a term of imprisonment of 4 years commencing on 1 July 2022 and expiring on 30 June 2026. The non-parole period is 2 years and 5 months expiring on 30 November 2024, after which you will be eligible for release on parole.

**********

Decision last updated: 08 June 2023