R v Daw (No. 3)

[2021] NSWDC 383

District Court

New South Wales

Medium Neutral Citation:

R v DAW (No. 3) [2021] NSWDC 383

Hearing dates:

30 July 2021

Date of orders:

6 August 2021

Decision date:

06 August 2021

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 110

Catchwords:

SENTENCING – historical sex offences – sexual offences committed against offender’s daughter – one offence is maintenance of unlawful sexual relationship – approach to sentencing for a ‘statutorily-sanctioned’ duplicitous count

Legislation Cited:

Crimes Act1900 (NSW) ss 59, 61C, 61D, 66EA, 78A

Crimes Act1914 (Cth) s 43

Criminal Procedure Act1986 (NSW) s 293A

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

Cases Cited:

Blundell v The Queen (2008) 70 NSWLR 660

Burr v R [2020] NSWCCA 282

Cheungv The Queen (2001) 209 CLR 1

Chiro v The Queen (2017) 260 CLR 465

EG v R [2015] NSWCCA 21

Gould v R [2021] NSWCCA 92

Hillman v The Queen [2021] NSWCCA 43

Jackson v R [2020] NSWCCA 230

KMC v DPP (SA) (2020) 267 CLR 480

R v A [2021] NSWDC 232

RvGavel (2014) 239 A Crim R 469

R v Hudson (Court of Criminal Appeal (NSW), 30 July 1998, unrep)

R v JVP (Court of Criminal Appeal (NSW), 6 November 1995, unrep)

R vOlbrich (1999) 199 CLR 270

R v RB (District Court (NSW), 4 June 2021, Latham SC ADCJ, unrep)

R v RW (District Court (NSW), 1 April 2021, Gartelmann SC DCJ, unrep)

R v VanRyn [2016] NSWCCA 1

R v Varner; R v Holyoak; R v Gallagher (Court of Criminal Appeal (NSW), 29 November 1995, unrep)

Savvasv The Queen (1995) 183 CLR 1

Texts Cited:

Nil

Category:

Sentence

Parties:

Director of Public Prosecutions (NSW)
DAW (offender)

Representation:

Counsel:
Mr J Stanhope for the Director of Public Prosecutions (NSW)
Ms J Gallagher for the offender

Solicitors:
Solicitor for Public Prosecutions (NSW)
Four Tree Lawyers for the offender

File Number(s):

2018/81157

Publication restriction:

Non Publication Order on the name of the complainant, and any information that may identify the complainant.

Pseudonyms have been used for the name of the complainant, the complainant’s family, and the offender.

SENTENCING REMARKS

Background

1. On 29 January 2021, after a trial I presided over, a jury found the offender guilty, and the offender was duly convicted, on an indictment of multiple sexual offences against his daughter (the ‘victim’) committed whilst she was a child; additionally, one offence when she was aged 16 and finally, a single sexual offence committed when she was an adult, aged 44 years of age.

2. The offences (all under the Crimes Act1900 (NSW)), together with the maximum punishments (and any applicable standard non-parole period) at the time of the offending may be viewed in the following table. I will also set out the maximum penalties for the ‘ingredient’ offences making up count 1:

Count	Offence	Maximum punishment
1.	Between 26 November 1979 and 19 November 1988 at Dora Creek and Capertee, the offender did maintain an unlawful sexual relationship with the victim, then a child under the age of 16, namely 7-15 years of age, in which he engaged in two or more unlawful acts (s 66EA(1)):	Imprisonment for life
a)   Between 26 November 1979 and 19 November 1981, the offender engaged in penile vaginal intercourse with the victim;	8 years
b)   Between 1 January 1981 and 19 November 1982, the offender engaged in penile vaginal intercourse with the victim	8 years
c)   On or about 19 November 1981, the offender engaged in penile vaginal intercourse with the victim	8 years
d)   Between 1 January 1987 and 19 November 1988 the offender engaged in penile vaginal intercourse with the victim	10 years
6	Between 1 January 1987 and 19 November 1988, at Capertee, the offender assaulted the victim, thereby causing actual bodily harm to her (s 59(1))	5 years
8	Between 19 November 1988 and 18 November 1989 at Capertee, the offender had sexual intercourse with the victim without her consent and knowing that she was not consenting (s 61D(1))	8 years
10	On or about 16 May 2017 at Capertee, the offender had sexual intercourse with the victim, she being a close family member, namely the offender’s daughter, and she then being above the age of 16 years, namely 44 years (s 78A(1))	8 years

3. As a result of the jury’s verdicts, the alternative counts 2, 3, 4 and 7 on the indictment fell away. These were the ‘ingredient’ offences underlying the acts particularised for count 1.

4. The Crown was represented in the sentencing hearing as it had been at trial. For the offender, Ms Gallagher of Counsel acted on his behalf. Ms Gallagher did not appear at trial. If I may say so, Ms Gallagher presented the offender’s case in a fair and balanced fashion notwithstanding that inherent disadvantage.

5. Subject to a qualification, my task is to sentence the offender on facts which conform with the jury’s verdicts, but also on the basis that to the extent that the Crown relies upon disputed facts adverse to the offender, it must prove them beyond reasonable doubt. Conversely, where the offender relies upon disputed facts favourable to him, he must prove them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ. In Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict”. Fact finding following a jury verdict is affected by the inscrutability of a jury verdict. In Cheung v The Queen (2001) 209 CLR 1 the High Court (in the joint judgment) summarised the law at [14].

6. The qualification arises from the nature of the offence in count 1 and follows from the inscrutability of the jury’s verdict. I will now touch upon some background explaining why its verdict was inscrutable before turning to the controversy as to the legal consequences flowing from it.

No inquiry sought from the jury as to particularised facts

7. Two features of the legislative requirements in relation to the offence under count 1 pertinent to sentencing are that, first, the Crown specify the particulars of the sexual acts said to comprise the ‘unlawful sexual relationship’ (s 66EA(4)(b)) and secondly, the jury need only find two or more of those particularised acts were committed to make out that essential element without any requirement that the individual jurors agree on which particular acts make out the relationship (s 66EA(5)(b)&(c)).

8. Since no inquiry was sought, or made of the jury, as sentencing judge, I do not have findings from the jury to assist me to determine which of the ingredient incidents said to sustain the essential element of an unlawful sexual relationship were determined by the jury to have occurred. After the jury had rendered its verdicts, I recall considering whether to make inquiry and raised the matter with Counsel. I recall indicating to Counsel my view that it was inappropriate for me to inquire of the jury what acts were accepted for count 1. My recollections, in these respects, were confirmed by the Crown during the sentencing hearing.

9. This is in contrast to what occurred in the High Court’s decision in Chiro v The Queen (2017) 260 CLR 465 (at [19]) (‘Chiro’), a case which concerned a similar (but distinct) offence of persistent sexual exploitation of a child, since in that case, the jury were required to be agreed as to the conduct constituting the relationship, as it was the particularised acts of exploitation which constituted the physical elements of the offence. In Chiro the plurality characterised the offence as being “not a course of conduct offence properly so called, but one comprised of discrete underlying offences” (at [22] & [51]).

10. In contrast, in an offence pursuant to s 66EA(1) there is no requirement for ‘extended unanimity’ of the kind applicable to the provision considered in Chiro. That was certainly the premise for directions given to the jury in my summing up and explained why no inquiry was sought of the jury after its verdicts were rendered.

11. Neither the Crown nor the offender’s (then) Counsel took issue with the propriety of my not making inquiry of the jury as to which ingredient acts were established to its satisfaction beyond reasonable doubt.

The controversy

12. In the absence of factual agreement of the offender, this then leaves something of an evidentiary vacuum as to the constituent facts underlying the jury’s finding that the offender maintained an unlawful sexual relationship with the victim whilst she was a child. This is where the doctrinal controversy that I referred to earlier in these remarks arises.

13. The controversy is whether or not I am to sentence on the basis of all of the ingredient offences, or just some of them, being those that were the least serious in nature. The Crown acknowledges that the position is not settled in the authorities. In favour of the proposition that a sentencing judge should sentence on the basis of the particularised facts, or ingredient offences least serious is a decision of Latham SC ADCJ in R v RB (District Court (NSW), 4 June 2021, unrep), a decision currently the subject of a Crown sentencing appeal. Against that proposition, and in favour of the proposition that the sentencing judge is simply to sentence by considering the facts of all ingredient offences are other decisions in this Court, being R v RW (District Court (NSW), 1 April 2021, Gartelmann SC DCJ, unrep) and R v A [2021] NSWDC 232 (Hatzistergos DCJ).

14. The Crown argues that the latter approach is correct. In this submission, he was joined by Counsel for the offender. Alternatively, in the Crown’s submission, the choice of approach would not materially matter, since three of the four ingredient offences were identical, in terms of the offence and materially similar on the facts and the fourth of the ingredient offences carried a higher penalty than the other three ingredient offences. In such circumstances, it was a very difficult exercise for the Court to say that any of the ingredient offences were more serious than the other. In other words, the question was essentially theoretical. Counsel for the offender did not disagree, in terms of the practical differences that might attend each approach, but nevertheless maintained that it was appropriate for me to enter into the current debate and express a view on the correctness of the competing approaches.

15. It is necessary to return to the text, as the starting (and end) point. Section 66EA, in its current version, which was applicable to the offending, is in the following terms:

“(1)    An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.

Maximum penalty--Imprisonment for life.

(2)    An "unlawful sexual relationship" is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.

(3)    It is immaterial that any of those unlawful sexual acts occurred outside New South Wales, so long as at least one of the unlawful sexual acts occurred in New South Wales.

(4)    In proceedings for an offence under this section, the prosecution--

(a)    is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and

(b)    is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.

(5)    In order for the accused to be convicted of an offence under this section--

(a)    the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and

(b)    the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and

(c)    the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.

(6)    In proceedings for an offence under this section, the judge must inform the jury of the requirements of subsection (5).

(7)    This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed.

(8)    A court, when imposing a sentence for an offence under this section constituted by an unlawful sexual relationship that existed wholly or partly before the commencement of the relevant amendments, must take into account (but is not limited by) the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed.

(9)    A person who has been convicted or acquitted of an unlawful sexual act in relation to a child cannot be convicted of an offence under this section in relation to the same child if the unlawful sexual act of which the person has been convicted or acquitted is one of the unlawful sexual acts that are alleged to constitute the unlawful sexual relationship.

(10)    A person who has been convicted or acquitted of an offence under this section for having an unlawful sexual relationship with a child cannot be convicted of an unlawful sexual act in relation to the same child if the occasion on which the unlawful sexual act is alleged to have occurred is during the period over which the unlawful sexual relationship was alleged to have existed. This subsection does not prevent an alternative verdict under subsection (13).

(11)    A person who has been convicted or acquitted of a predecessor offence in relation to a child cannot be convicted of an offence under this section of having an unlawful sexual relationship with the same child if the period of the alleged unlawful sexual relationship includes any part of the period during which the person was alleged to have committed the predecessor offence.

(12)    For the purposes of subsections (9)-(11), a person ceases to be regarded as having been convicted for an offence if the conviction is quashed or set aside.

(13)    If on the trial of a person charged with an offence under this section the jury is not satisfied that the offence is proven but is satisfied that the person has, in respect of any of the occasions relied on as evidence of the commission of the offence under this section, committed an unlawful sexual act, the jury may acquit the person of the offence charged and find the person guilty of that unlawful sexual act. The person is liable to punishment accordingly.”

16. In R v RW, Gartelmann SC DCJ reasoned that the offence in s 66EA(1) was distinguishable from the offence considered by the High Court in Chiro. The actus reus was not the ingredient offences (individually or in combination) but the element of the maintenance of an unlawful sexual relationship. Given the text (especially s 66EA(5)(b) & (c)), the Court did not need to proceed on any unexpressed requirement to sentence on the fewest or least serious unlawful sexual acts constituting the ingredient offences. Indeed, his Honour, after considering extrinsic material, considered that it was important, when weighing the objective gravity of the offence, to consider the nature and seriousness (and, I infer number) of the acts constituting the ingredient offences. There is a big difference between sentencing on the basis of a consideration of all of the ingredient offences, and whether they are made out, and upon an unexpressed premise that only the statutory minimum and least serious of the ingredient offences should be taken into account. In order to do so, the Court would necessarily have to consider whether the individual offences were made out. There is no reason why, on that footing, the offender or the Crown would be prejudiced: Olbrich principles would still apply.

17. In R v A [2021] NSWDC 232, it appears that the decision of his Honour Gartelmann SC DCJ in R v RW was not brought to the attention of the sentencing judge. Hatzistergos DCJ proceeded on the basis that a factual determination was required by the sentencing court in respect of each of the ‘foundational’ (or what I tem ‘ingredient’[1] ) offences.

    1. Burr v The Queen [2020] NSWCCA 282; Hillman v The Queen [2021] NSWCCA 43

18. After the decisions in R v RW and R v A, the controversy arose again before Latham SC ADCJ in R v RB. But before then, the Court of Criminal Appeal considered similar issue, but in the context of a different offence, in Gould v R [2021] NSWCCA 92 (“Gould”). Gould was decided on 10 May 2021.

19. Gould did not concern s 66EA(1) of the Crimes Act. It concerned the offence of attempting to pervert the course of justice (s 43(1) of the Crimes Act1914 (Cth)). Nevertheless, four separate particulars, or acts, were relied upon by the prosecution to make out the physical element and it was sufficient that the jury accept only one. The Court of Criminal Appeal considered the High Court’s decision in Chiro, but characterised the offence in question in that case as an ‘omnibus’ offence requiring proof of each constituent underlying offence. It was only because the jury was required to separately adjudicate guilt on the underlying offences that, because of an omission by the jury to do so, the sentencing judge was required to reason by reference to facts most favourable to the offender. That reasoning did not apply to an offence like attempting to pervert the course of justice, where there was but a single charge, albeit with potentially multiple particulars, for the jury to consider. As Bathurst CJ observed in his concurrence, for the offence before the Court, general principles from Cheung were still applicable. That is, a sentencing judge was not required to sentence on a view of the facts most favourable to the offender, but should make his or her own findings as to the aggravating and mitigating circumstances of the offence consistent with the verdict of the jury, even in circumstances where the subject offence was a ‘statutorily-sanctioned duplicitous’ count (Bathurst CJ at [19]), that is to say, where a single charge was presented in the terms of alternate acts and the jury verdict did not identify the particular act on which the conviction was based.

20. In R v RB, Latham SC ADCJ considered s 66EA(1) and also considered the High Court’s decision in Chiro and the Court of Criminal Appeal’s decision in Gould. But more than this, her Honour also considered the status of Chiro in the light of the High Court’s decision in KMC v DPP (SA) (2020) 267 CLR 480 (“KMC”). Her Honour also referred to the De Simoni principle. KMC had been referred to by the Court of Criminal Appeal in Gould by Adamson J (at [232]-[233]), in the context of referring to why the High Court reasoned as it did in that case to dismiss the appeal: being that a retrospective amendment had not been engaged on the facts.

21. Latham SC ADCJ reasoned to the effect that although as a matter of form, the actus reus was a single act – maintaining an unlawful sexual relationship – as a matter of substance the offence was such that it could not be committed unless the requisite number (at least 2) unlawful sexual acts were committed during the relevant period. In substance therefore, her Honour determined it would deprive the physical element of content “without some particularisation and consequent finding of the requisite number of unlawful sexual acts”. To sentence the offender on the basis that he committed all of the particularised acts upon which issue was joined, would be to infringe De Simoni, by “depriving the requirement of consistency with the verdict of practical content”. Her Honour expressed herself as being bound by the High Court’s decision in Chiro, KMC and Gould, by proceeding on the most favourable findings for the offender, being the least serious of the sexual acts particularised in the indictment.

22. As noted, the Crown has brought an appeal against sentence in RB. But in circumstances where that appeal has not yet been determined I am placed in the invidious position of choosing between two arguable competing constructions of s 66EA(1) by two colleagues with a vast reservoir of criminal law experience (as practitioners and as judges).

16. With great respect to Latham SC ADCJ, I prefer the approach of Gartelmann SC DCJ, and not merely because that this preference accords with the joint submission of the Crown and the Counsel’s offender in this case.

17. In my opinion, s 66EA(1) is different to the offence which the High Court considered in Chiro. I daresay that the amendment to s 66EA by Parliament would have occurred in the understanding of the High Court’s decision in Chiro.

18. As to textual considerations, although in my view they are not all one way, the preponderant indications suggest that there is no series of underlying offences which a jury needs to consider. Section 66EA(4) indicates that there is no requirement for the prosecution to even specify the nature of the unlawful sexual acts, as if they were separate offences; albeit that the period of the unlawful sexual relationship requires specificity. Secondly, s 66EA(5)(b) indicates that the jury does not need to be satisfied of the particulars of each act, as if it was a separate offence. Section 66EA(5)(c) indicates that there is no need for jury unanimity as to which of the particulars of sexual acts (assuming, contrary to the absence of obligation in s 66EA(4), that they are supplied) make out the single physical element, being the unlawful sexual relationship.

19. Arguably, against that, two points might be made. The first is that the adjective ‘unlawful’ to describe the ‘sexual relationship’ in s 66EA(1) could only be the commission of sexual offences. But that concern is addressed in s 66EA(2), by quantification of a minimum number of unlawful sexual acts with or towards a child over any period. Secondly, it might be argued that De Simoni would suggest that the requirement (in s 66EA(8)) for a sentencing judge to take into account the maximum penalty for the ‘unlawful sexual acts’ engaged in during the period of the relationship, as a matter of history or custom, would suggest that the jury is the appropriate tribunal to determine what those sexual acts were. But to reason in this way is contrary to the other textual considerations already adverted to.

20. Powerful contextual reasons, of the kind referred to by Gartelmann SC DCJ, with respect, support his Honour’s approach. His Honour referred to the Criminal Justice Report 2017 (Part 3 at [11.8]), which followed the Royal Commission. I consider that Parliament was minded to make proof of the offence of ‘persistent sexual abuse of a child’ easier than it had been; which explains why it became clear that it was unnecessary for a jury, for the purpose of this offence, to determine any ‘underlying offences’ but only a single physical element and therefore there was no need for the jury to agree on the particulars of the unlawful sexual acts (if, contrary to s 66EA(4) such particulars were supplied). As his Honour pointed out, in the second reading speech, it was indicated that the particularised acts would remain for consideration by the sentencing judge, as the frequency and nature of them would be relevant when assessing the gravity of the offending — that is the seriousness of an “unlawful sexual relationship”. I also agree with his Honour that when sentencing for an offence carrying as the physical element an ‘unlawful sexual relationship’, it is difficult to understand why a sentencing judge should not form his or her own view of the ingredient facts which satisfy that expression, so long as that is consistent with the jury’s verdict, in accordance with orthodox Olbrich principles. The circumstance that the jury is not required to agree, much less specify, which of any particularised sexual acts have been established, would suggest that a sentencing judge is liberated in the task at hand to apply Olbrich principles.

21. It follows that I respectfully disagree with Judge Latham SC that the sentence to be imposed must be determined by reference to the underlying offences. There is only one physical element. This is so even if it is true, as the Crown (and apparently the offender in this case) submits that the sentencing judge, when evaluating the offence, will necessarily have occasion to consider whether each of the particularised acts of sexual activity occurred. To treat those particularised acts as offences would be contrary to the textual requirements. I would characterise the offence of s 66EA(1) much like the way in which Bathurst CJ, in the Court of Criminal Appeal in Gould, characterised the offence in question in that case, being a ‘statutorily-sanctioned’ duplicitous count, in which the Court sentences for only one offence, and applies Olbrich principles in the ordinary course.

22. I consider that Chiro is distinguishable and, further, that I should apply an approach which I consider flows from Gould. As Adamson J pointed out in Gould at [243], there are a potentially large number of cases where a physical element arises from multiple acts where it is understood that no extended unanimity direction need be sought from the jury. As I read her Honour’s reasons (and those of Bathurst CJ and Davies J), the approach of Gartelmann SC DCJ in R v RB is consistent with her Honour’s approach.

The Facts

30. As the Crown correctly submitted, the evidence for all of the offences came from the victim (complainant). Counsel for the offender submitted, following the course of trial, that the Court might have difficulty accepting her reliability.

31. I do not accept Counsel for the offender’s submission. To the contrary, and consistently with the jury’s verdicts, I found that the victim was both credible and reliable. If there was any uncertain matter, such as a particular date or day when offending occurred; or circumstance such as whether her mother was at home for one of the offences which was in doubt, these were matters of de minimis detail which, I surmise, the jury weighed, but rejected when considering her veracity and reliability. It would be extraordinary if, in circumstances when she was complaining, for the first time, in 2017 about events that had occurred between 1979 and 1988 if there were not some matters of detail which gave rise to some variance in her accounts to the police and her evidence in the trial. Indeed, this explains why the jury was given the warning in terms suggested by s 293A of the Criminal Procedure Act1986 (NSW) that it was. Generally, my assessment of the victim was that her testimony was compelling. In what follows in my description of the facts constituting the offending, they are based substantially upon her evidence.

32. The Crown submitted that, accordingly, there was no logical reason for not finding each of the ingredient offences proven beyond reasonable doubt. The offender’s Counsel took issue with that, arguing that reasonable doubt might attend the second and third ingredient sexual acts.

Count 1

Ingredient unlawful sexual act 1 (the alternative count 2)

33. Counsel for the offender accepted that I could find that this offence was proved beyond reasonable doubt.

34. As to the first particularised incident, when the victim’s family had moved to Newport Road in Dora Creek, the offender took her into the parents’ bedroom (depicted in the floor plan, Exhibit A), used moisturising cream which he had utilised for his dermatitis, rubbed her and put his fingers inside her vagina, alternatively laid her on top of him then imposed himself on the top of her, inserted his penis into her vagina and ejaculated on her stomach. The victim recalled seeing blood from her vagina on the bed sheet and in the shower. She complained to her mother the next morning, but only about the blood and she was taken to a general medical practitioner. She did not complain because she was too scared to tell her.

Ingredient unlawful sexual act 2 (the alternative count 3)

35. As to the second particularised incident, the Crown relies upon the victim’s evidence that when, in Year 3 of primary school, she transferred to a different public school. A photograph of her in school uniform was number 5 in Ex B. She gave evidence that when she was at this public school, one afternoon after school, the offender took her to his bedroom, took her uniform off, lay her across his lap and started touching her vagina with his fingers. Thereafter he placed his penis in her vagina.

36. Counsel for the offender argued that the Crown had not established beyond reasonable doubt that this act occurred. It was submitted that there was uncertainty whether, at the time that the act was alleged to have occurred, the victim’s mother was at work; with the consequence of the offender having the opportunity for the offender to engage in the act. Reliance was also placed upon the victim’s statement of her age at the time of the offending.

37. I do not consider that the victim’s statement of her age would have had any material bearing upon the jury’s determination of guilt. The victim was reasoning back from her sight of a school photo to place the year in question and gave an estimate of her age. It is quite common, after many years, for adults, looking back on primary school years, to misstate their age in a particular year. Any discrepancy was not material. Further, the state of the evidence, such as it was, as to the victim’s mothers’ working hours was not very firm, in terms of its permanence.

38. Consistent with the jury’s acceptance of the victim’s credibility and reliability, I find that this ingredient act is established beyond reasonable doubt.

Ingredient unlawful sexual act 3 (alternative count 4)

39. The Crown relies upon the victim’s evidence that on her ninth birthday, an incident occurred in the morning. The victim identified the birthday by reference to photograph 6 in Exhibit B. Her evidence was that that morning, she went into her parents’ room at Dora Creek; that the offender took off her nightie and put his penis in her vagina.

40. Counsel for the offender also took issue with whether this sexual act was established. She argued that the victim had associated this act with her birthday party, and her recollection of the offending having occurred on the actual date of her birthday. Once it was established that the birthday was on a school week day, it was unlikely that any birthday party could have been held on that day so, it was said, there was reasonable doubt whether any sexual act had occurred on the birthday.

41. As the Crown submitted, this argument overlooks the circumstance that, ultimately, the victim was not wedded to the notion that the birthday party occurred on the birthday itself. As with the ingredient act 2, the victim’s recollection was triggered by her sight of a photo. What mattered was the linkage in her mind between the sexual act and the celebration of her birthday. The offence itself was specified in terms of being only “on or about” that day.

42. Accepting, as I do, her credibility and reliability, I find that this alleged unlawful sexual act also established beyond reasonable doubt.

Ingredient unlawful sexual act 4 (alternative count 7)

43. The remaining particularised incident for count 1 allegedly occurred in Capertee, where the victim’s family relocated when the victim was in Year 7 at school. She began to attend high school and completed her schooling until the conclusion of Year 10. On an occasion when she was attending high school at the age of 15, when she was wearing winter pyjamas, she woke up to find the offender touching her vagina and thereafter putting his penis into her vagina. The victim did not want to have sex with the offender and pushed him away with her hands.

44. The offender’s Counsel did not suggest that I could not find that this act was established by the Crown beyond reasonable doubt. I so find.

Objective gravity of offence for Count 1

45. Section 66EA, in its current form, is a relatively new offence. It commenced on 1 December 2018. However, the provision extends to relationships existing wholly or partly before 1 December 2018, provided the offender’s acts were unlawful sexual acts during the period of the relationship: s 66EA(7). “Unlawful sexual act” is defined as any act that constitutes, or would constitute, one of the numerous sexual offences listed in s 66EA(15).

46. As noted, the ‘unlawful acts’ were those pleaded as the alternative counts 2, 3, 4 and 7.

47. In Burr v R [2020] NSWCCA 282 (“Burr”), Johnson J (other members of the Court agreeing) noted, at [98] that the ingredient incidents particularised were not an exhaustive list of all of the offences committed against the victim but were representative in nature. But the offender was not to be sentenced for uncharged conduct.

48. In Burr, Johnson J also noted (at [106]) that relevant factors on the objective gravity of s 66EA offence, prior to the 2018 amendments, were:

• the number of offences. The greater the number of the ingredient offences, the more serious it will be;

• the nature of the ingredient offences;

• the age of the victim at the time of the ingredient offences – the younger the victim was, the graver the offence would be;

• the period of time during which the ingredient offences was or were committed;

• the offender’s age at the time of the offending and the age differential between offender and victim during the relevant period; and

• the context and power-dynamic in which the offender had access to the victim to commit the ingredient offences.

49. Despite the amendment to this offence, subsequent to Burr, both the Crown and Counsel for the offender submitted that the considerations identified in Burr remained applicable. I propose, with respect, to treat the ‘power-dynamic’ factor in the context of the suggested aggravating circumstance as concerning a breach of trust.

50. Overall, the Crown submitted that although the offending did not fall into the category of a most extreme offending attracting the maximum punishment, this offending was well above the mid-range of offending. Counsel for the offender did not dispute that it fell within the mid-range of offending, but not significantly above it.

51. Applying that approach from Burr, I have regard to the following circumstances:

1. I find that there were four discrete “unlawful” sexual acts;

2. the unlawful relationship, for the purposes of this offence, extended for a period of approximately 8 years, being a very long period in a person’s childhood;

3. the victim was aged between 8 and 16 years of age, a range spanning the period of her being a very young child and her development in adolescence during which she was especially immature. Indeed, for 3 of the 4 particularised acts on count 1, the victim was at the lower end of the age range for victims; when she was a very young girl;

4. the age differential was very significant: the offender was aged between 33 and 41;

5. the sexual activity was penile-vaginal intercourse, but did not involve ejaculation into the victim’s vagina;

6. there was no violence or coercion, although the offender told the young victim not to raise the matter of the conduct; and

7. finally, the nature of each of the unlawful acts, indicated by the maximum penalties for the ‘unlawful’ nature, is highly serious.

52. Having regard to the very young age of the victim (and corresponding age differential with the offender), the frequency and nature of the sexual acts and the overall period in which the relationship occurred, the offender’s conduct was slightly above the mid-range for offending of this kind. For the avoidance of doubt, I note that this assessment does not have regard to the circumstances of aggravation or mitigation, which I will address after considering the other offences.

Count 6

53. The offender struck the victim with his belt on her leg, or legs. The Crown relies upon the evidence of the victim which was that on an occasion, she did not want to stay with the offender in her bedroom. There was no detailed evidence as to how many times that the offender struck the victim.

54. The evidence of the harm was that bruising and welts were caused. This was what prompted the victim to wish to wear pants to school rather than the usual school uniform. This was enough to make out the element of actual bodily harm but there was no evidence of residual harm, such as any scar.

55. In my view, it is not open to the Crown to rely upon any sexual motivation of the offender underlying this offence without infringing the De Simoni principle. The Crown had relied upon a separate count (6) in the indictment, being s 61C(1)(a) of the Crimes Act, but that was the subject of a verdict of acquittal by the Court’s direction.

56. I regard this conduct as falling at the low end of the range for conduct of this kind.

Count 8

57. When she was aged about 16 (and therefore no longer a ‘child’, in the statutory sense), the victim recalled the offender drove her, in his green utility vehicle, to the tip. This happened on more than one occasion. She gave evidence that on one occasion, whilst she was outside the car, standing alongside the vehicle, he kissed her, touched her outside of her pants, then put his hands down her pants, moving his fingers inside her pants before touching her vagina and her breasts. She recalled his fingers moving up and down the front of her vagina. She also recalled him kissing her and telling her that he loved her. He asked her to tell him that she loved him and the victim did so – reluctantly: the victim did not “love” him. He was just her dad.

58. There was no violence, or evidence of hurt, associated with this sexual activity. To the extent that the duration of the intercourse is significant, there was no evidence as to how long the activity lasted for. There was no evidence of express threats, although, set against this last matter, the context of the offending included the established sexual relationship that had existed whilst the victim was a child, during which the victim was told by the offender not to tell anyone. To say that is not to engage in any form of double counting (for count 1): it is merely to acknowledge part of the context for the offending for this count.

59. Putting to the one side momentarily the emotional (as distinct from formal) relationship between father and daughter (which will be considered below in the context of aggravating circumstances), in my view, this conduct fell towards the lower end of the range for conduct of this kind, in terms of its objective seriousness.

Count 10

60. On ANZAC Day 2017, the victim's daughter drove the victim, who was then aged 44, married and had three children, to Capertee to see the offender. The victad recently had a fight with her husband and asked to stay with the offender. She was left there until about Mothers’ Day, being the second Sunday in May. After attending a medical practitioner on or about 16 May 2017, to discuss issues with her back, the victim gave evidence that at the offender’s home, whilst asleep, the offender came into the room in which she was sleeping, entered her bed, took his clothes off, touched her breast and touched inside her vagina with his fingers and had penile-vaginal intercourse with the offender on top of her.

61. Again, without engaging in double counting, I do not consider that the context of an earlier unlawful sexual relationship between the offender and victim can be ignored when considering the objective seriousness of this offence. It helps explain what would otherwise be inexplicable – why a 44 year old married woman with three children would allow herself to be driven to the offender’s place, exposing herself to the prospect of remaining left with him and thereafter have sex with her father (then aged 69), without express opposition or resistance.

62. Similarly, there was no violence or physical harm evident from the conduct; although there was a debate during the trial as to whether this particular act caused the victim to suffer the mental harm which soon led to her admission to a mental health facility. I consider that there was such a connection; but it is to be addressed separately, as a matter reflective of harm to the victim, which is to be considered more of an aggravating circumstance.

60. In my view, the objective gravity of the offending is such that it falls at the lower end of the range for this offence.

Aggravating circumstances

64. The Crown correctly noted that the offending, in the case of each and every count, occurred in circumstances involving a significant breach of trust; accentuated by the circumstance of the offender being the victim’s father, and thereby being in a position to exploit his authority and power to discipline the child (R v JVP (Court of Criminal Appeal (NSW), 6 November 1995, unrep).

65. I do not, on the other hand, consider that the statutory circumstance of vulnerability (under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’)) is in play, lest there be double counting. All of the ingredient acts in count 1 sustaining the unlawful sexual relationship were referable to the victim’s age, when she was, by definition vulnerable. So too, count 10 is age-specific. For counts 1, 6 and 8, part of the breach of trust arose also from the victim’s vulnerability; albeit that the breach of trust was also associated with the offender’s status as the victim’s biological father. The victim’s vulnerability was, in short, the other side of the coin to the offender’s exploitation of his natural authority.

66. Further, save for count 8, the offending was committed in the sanctity of the family home.

Harm to victim

67. The victim supplied a lengthy written statement, which was read out by Ms Tyler. By that statement the victim spoke eloquently of having her childhood taken away by the offender, as well as her virginity. She stated that she tried to be bubbly as a teenager and when she first got married but throughout those years she was very sad on the inside. She stated that as she entered adulthood and as a mother, she began to get angry and emotional, to such intensity that she developed a mental health breakdown; manifested in her doing odd things. She spent separate periods of time in and out of mental health units. She also referred to feeling adverse effects of medication. She was antisocial and felt self-conscious.

68. The victim stated her reflections of past events; blaming herself for what occurred. She spoke, very poignantly, of her hatred towards men in general; but not her husband. She is grateful that she has kept her marriage. She considers that she had been scared and brainwashed by the offender; to such extent that she would do what he wanted even with a husband and her own children. She is sad at her predicament, believing that she’s lost her father and her children have lost their grandfather.

69. She stated that she has been diagnosed with Post Traumatic Stress Disorder, manifested in many nightmares and flashbacks and expects to be on medication for the rest of her life.

70. There was a debate at trial after it was suggested by the Crown to the jury, in the absence of psychiatric evidence, that the conduct the subject of count 10 precipitated a mental health crisis in the victim. When regard is had to the letter that the victim wrote to her counsellor, it was plain on its face, and I have no doubt that the jury so found, that the distress evinced in that note was the culmination of the victim’s retrospective and pent up consideration of all of the sexual activity that had occurred with her father from a very young age. I find that the conduct comprising count 10 represented a tipping point which unleashed the full sentiments of the torment the victim had suffered at the offender’s hands since she was a young child.

71. I have regard to that statement indicating that the victim’s life, through her childhood, adolescence and even into her adulthood has been badly affected and has been for a very long time. The continuing distress suffered by the victim when recalling the events was palpable when she gave evidence at the trial.

72. The victim’s reflections and observations were consistent with what was said by the Court of Criminal Appeal in R v Gavel (2014) 239 A Crim R 469 at [110]:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can do”. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364[3], 368–372 [26]–[39].”

73. Before I move on to the other issues associated with sentencing, the Court wishes to commend the victim for her bravery and courage, in bringing her complaint to the police, in exposing herself to the scrutiny and rigour of a criminal trial and finally, for undertaking the degree of painful reflection in preparing her victim impact statement, which is palpably manifested in the content of that statement. The Court hopes that at least this aspect of these remarks might be conveyed to her.

SUBJECTIVE CIRCUMSTANCES

Age and background

74. The offender is now 73 years of age. He faces the prospect of a substantial term of imprisonment, which he is likely to find especially onerous; and may well see out the natural course of his life. Nevertheless, there is no principle that the offender should not be sentenced to a term that would result in him or her spending the rest of his or her life in gaol: R v Varner; R v Holyoak; R v Gallagher (Court of Criminal Appeal (NSW), 29 November 1995, unrep), where that result would not otherwise be appropriate.

75. His background is considered at length in a report prepared by Dr Christopher Lennings, a psychologist. Dr Lennings assessed the offender, originally, in April 2019 (for the purpose of a fitness assessment) and did so again, after his convictions, in April this year.

76. The offender had an uneventful childhood, though his parents divorced before they had died. His education was limited; leaving school at the current equivalent of Year 9; but he was not unhappy at school. He has had a variety of jobs throughout his life and worked steadily. The longest period of employment was 10 years when he worked in power stations. He stopped working in 2013.

77. His medical history has been equally uneventful. He has never been on medication nor sought psychological or psychiatric assistance until 2017, when he made his one and only suicide attempt.

78. He was married for 24 years and had three children from that relationship, including the victim. He was in a de facto relationship for 21 years and he performed something of a paternal role in relation to his former partner’s children. Since the last relationship ended in 2017, he has essentially been shunned by his family.

Culpability

79. Evidence emerged during the trial from the victim, which I accept, that the offender, by way of explanation, indicated to her that his first wife “did not love [him] anymore”. Her recollection of his saying this to her was reflected also in a letter that the victim prepared for her counsellor in May 2017 which was evidence at the trial.

80. There was nothing in Dr Lennings’ report which indicates anything that would lessen the offender’s culpability, such as any deprived upbringing or any mental abnormality. I note that he told Dr Lennings that he thought he had ceased sexual activities with his de facto partner by 2011 or 2012. I treat that evidence with significant reservation. It was an out of court statement (the offender not giving evidence at trial or in the sentencing hearing) and to the extent that it might be relied upon at all, it cannot be used to controvert the jury’s verdict in relation to count 10. By its terms, the evidence about what the offender told Dr Lennings does not speak to his sexual attraction to the victim.

81. I find that, with the utmost perversity, if not depravity, the offender sought a romantic and sexual relationship with his daughter as a virtual surrogate for a fulfilling sexual relationship with an adult partner; whether that was his former wife or his de facto partner. This manifested a sense of entitlement to engage in conduct which ordinary standards of decency would regard as gross mistreatment of his daughter.

Antecedents

82. The offender has no prior criminal convictions. This entitles him to a degree of leniency; albeit, as his Counsel submitted, it was a matter of minimal weight. I think it is pertinent in relation to the principle of totality I will refer to, but also the principle of leaning towards mercy (Blundell v The Queen (2008) 70 NSWLR 660 at [48]); particularly when allied to notion of hardship which I will return to later in these remarks.

Remorse

83. As was his right, the offender continued to assert his innocence to his psychologist. His Counsel submitted that this circumstance did not derogate from her argument that specific deterrence should not be given weight, in circumstances where his offending was directed to a single victim and, to be elaborated shortly, where he was unlikely to re-offend or had very good prospects of rehabilitation. On reflection, and taking into account the absence of antecedents, I accept Counsel’s submission. I think that the absence of remorse plays more into the considerations of retribution and denunciation.

Prospects of re-offending

84. At trial, the Crown relied upon a tendency in the offender, but that was confined only to sexual attraction to the victim, and no other persons.

85. Dr Lennings administered a Static99R assessment of the risk of sexual recidivism. The results indicated that the offender was at the very low end of the range. The psychologist acknowledged as the only dynamic risk factors being the chronicity of his offending and his denial. Because of the low score, he will not be able to access treatment programs in jail even if he wanted to. Dr Lennings opined that he represented a low risk to the community.

86. Given that the offender has no further contact with the victim, it follows that it is highly unlikely that he could re-offend.

87. Further, as Dr Lennings remarked, there is no applicable medication or treatment for him, given his low risks of offending and the most obvious risk would only arise from engagement with children, but that does not apply. What he may need is supervision to support his cognitive decline and other incidents of older age.

88. Perhaps uniquely from other offenders for these categories of offending, in the circumstances, I accept that the offender presents a low risk for re-offending. In turn, his prospects of rehabilitation are excellent. These matters weigh in the offender’s favour in terms of both the need to protect the community and, as indicated, the consideration of rehabilitation.

The offender’s age and ill-health

89. The age of an offender may be relevant to the sentencing exercise, to the extent that it might make a custodial sentence more onerous and reduces the time for rehabilitation, however, a sentence is not automatically reduced on account of this factor (Jackson v R [2020] NSWCCA 230).

90. Dr Lennings expressed concern about the offender’s time in gaol. He regarded the offender as being ‘pro-social’ and an abider of rules; and because of his cognitive decline and absence of guile, Dr Lennings was concerned he was capable of exercising judgment to protect himself in the gaol environment. Dr Lennings added that if identified as a child sex offender, the risk of assault and serious harm would be exacerbated.

91. Counsel for the offender eschewed reliance upon Dr Lennings’ opinion that the burdens of incarceration were of such an order that it would be appropriate for the Court to impose a non-custodial sentencing alternative. She was right to do so.

92. The Crown accepted that it was relevant for the Court to take into account his age, and, consistently with Dr Lennings’ evidence, his vulnerability in incarceration.

93. I accept that the offender will find full-time incarceration in gaol especially onerous.

Covid-19

94. At the present point of time, everyone knows that large parts of the State is currently subject to a very significant outbreak from the especially contagious and vicious Delta strain of the COVID-19 virus; resulting in the state-sanctioned imposition of severe restrictions upon freedom of movement and social contact. Counsel for the offender acknowledged that due to the nature of the offending, if for no other reason, the offender was likely to be isolated from other inmates, in any event, but this did not discount the risk that he was in a vulnerable position should the virus take hold in the correctional centre where he will spend, at least for the foreseeable future, his term.

95. The Crown acknowledged that the risk of transmission of the virus presented a difficulty for the Court, but also indicated that there was no evidence of what protocols were in place; their effectiveness, or whether the offender’s current custodial environment was prone to any greater or lesser risk of the spread of the virus than other places.

96. Yesterday, the Premier made a public announcement that the Hunter and Newcastle regions would be subject to a lockdown in similar terms to that of the Greater Sydney Region. The parties were invited to provide written submissions to my Associate in relation to this development by 5:00pm yesterday, but ultimately none were provided.

97. I accept the Crown’s submission. Without evidence of protocols, or any other objective assessment of risk, it would be speculative to say that the place where the offender will serve his incarceration places him at any greater or lesser risk than other places. It is not possible for me to say that the risk of transmission is any greater, say, than the risk of transmission at a college attached to a university, or an aged care or nursing home or any other place where there is a level of communal living.

98. No evidence has been given as to whether the offender has received any vaccination; or the opportunity to receive vaccination, or that he has any specific health issue which would make him especially vulnerable if he was to contract the virus. Finally, as indicated, the nature of the offending is such that he is likely to receive greater isolation than other inmates which, at least in this respect, might act to his advantage. It is, in this regard, also to be noted that the evidence in the hearing indicated the offender’s belief that he has been shut off from his family and has no supportive friends. So the risk of transmission of the virus from those outside the correctional centre is also lower on that account than might otherwise have been the case.

99. In the circumstances, I am unable to ascribe any materially greater significance to the ordinary burdens of incarceration because of the virus than those already alluded to.

INSTINCTIVE SYNTHESIS

100. I take into account the maximum punishments for the offences as legislative guideposts. On count 1, the legislation required the Court to also take into account the maximum penalties on the ingredient acts which constituted the unlawful sexual relationship (s 66EA(8)). Especially in relation to counts 1, 6 and 8, the offences are extremely serious; whilst the offence the subject of count 10 is also very serious.

101. I take into account the sentencing principles enshrined in s 3A of the CSP Act. In connection with those general sentencing principles, subject to one modification of the basis of the facts, I respectfully adopt what R A Hulme J said (at [179]) in R v Van Ryn [2016] NSWCCA 1, with reference to observations in EG v R [2015] NSWCCA 21 by Hoeben CJ at CL, that:

“General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeated that their actions will not be tolerated and that they will receive significant punishment”.

102. To this statement, I would make one small modification. That is the consideration of community protection, for reasons I will shortly come to.

103. Further, in relation to the peculiar vulnerability of children, in R v Hudson (Court of Criminal Appeal (NSW), 30 July 1998, unrep) at 3 Sully and Ireland JJ with whom Spigelman CJ agreed, said:

“ … children in a family situation are virtually helpless against sexual attack by the male parent and that children have a right to be protected from sexual molestation within the family and that this can only be achieved by the courts imposing sentences of a salutary nature.'"

104. Specific deterrence has a lesser role to play for offending of this kind even if, as I have found, the offender has not shown contrition. That may appear counter-intuitive until it is recognised that he perpetrated his crimes against only a single victim with whom, it can safely be presumed, will have no further contact; he presents no substantial risk of re-offending and the consideration of trying to protect the community also has lesser force. That said, the considerations of ensuring the offender is made accountable for his offending and recognising harm to the victim are factors which are elevated in his particular case.

105. Counsel for the offender accepts that the offender’s conduct, viewed in the aggregate, is such that he has crossed the s 5 threshold. I so find.

106. The offences concern discrete periods. Count 1 concerned the period when the victim was aged between 7 and 15; count 6 when she was aged between 15 and 16; count 8 when she was aged between 16 and 17; and count 10 when she was aged 44. Plainly, the counts concern different offences, and concern different stages of the victim’s life: childhood, adolescence and even adulthood. There is little scope for the Court to factor in the element of notional concurrency to comprehend the overall criminality in those circumstances. But to mechanically accumulate the sentences, particularly having regard to the current circumstances of this offender, in terms of his elderly age and declining health, would be ‘crushing’. Given the offender’s age, each year of the sentence will represent a substantial proportion of the period left in his life.

107. Upon his convictions, he was taken into custody. He has now spent 190 days in custody, which will be taken into account for the length of his term.

108. Having regard to the circumstances that he is a first time offender, his age and ill-health, and the circumstance that he is likely to find gaol especially onerous, special circumstances exist. The Crown did not contest that special circumstances apply.

109. The indicative penalties relevant to each count are as follows:

Count 1:   15 years’ imprisonment

Count 6:   1 year imprisonment

Count 8:   3 years’ imprisonment

Count 10:   3 years’ imprisonment

SENTENCE

110. Will the offender please stand.

111. I sentence you to a term of imprisonment for a period of 17 years, commencing 29 January 2021 until 28 January 2038. The non-parole period is 10 years’ 2 months and 14 days’, which period expires on 11 April 2031, after which you will be eligible for release on parole.

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Endnote

Decision last updated: 06 August 2021