R v DD

[2023] NSWDC 19

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v DD [2023] NSWDC 19

Hearing dates:

28 October 2022

Date of orders:

24 February 2023

Decision date:

24 February 2023

Jurisdiction:

Criminal

Before:

KING SC DCJ

Decision:

The offender is sentenced to a term of imprisonment commencing on 6 May 2021 with a non-parole period of 21 years and a balance of term of 7 years.

The offender will first be eligible for parole on completion of the non-parole period – 5 May 2042.

The balance of term of 7 years will expire on 5 May 2049.

Catchwords:

CRIMINAL – sentence – multiple child sexual assault offences towards his 3 step-children - adult maintain unlawful relationship with child - Indecent assault person under 16 years of age – aggravated sexual intercourse person >=14 & <16 yrs - incite aggravated indecency, victim <16 & under authority of offender - do act etc intending to pervert the course of justice – general principles – objective seriousness – mitigating factors – totality - subjective matters - other relevant matters – aggregate sentence

Legislation Cited:

Crimes Act 1900

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Administration of Sentences) Regulation 2014 (NSW)

Crimes (Domestic and Personal Violence) Act 2007

Crimes (High Risk Offenders) Act 2006

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986.

Cases Cited:

AB v R [2014] NSWCCA 31

AB v The Queen (1999) 198 CLR 111

Alvares & Farache [2011] NSWCCA 33

Athos v R [2013] NSWCCA 205

Beavis v R [2018] NSWCCA 248

Bravo v R [2015] NSWCCA 302

BT v R [210] NSWCCA 267

Burr v R [2020] NSWCCA 282

Cahyadi v R [2007] NSWCCA 1

Chamseddine v R [2017] NSWCCA 176

Cherry v R [2017] NSWCCA 150

Collier v R [2012] NSWCCA 213

Corby v R [2010] NSWCCA 146

Davis v R [2018] NSWCCA 67

Dousha v R [2008] NSWCCA 263

Dunn v R [2007] NSWCCA 312

Elias v The Queen (2013) 248 CLR 483

GP (a pseudonym) v The Queen [2021] NSWCCA 180

Harrington v R [2005] NSWCCA 449

Hoskins v R [2016] NSWCCA 157

Ibbs v The Queen (1987) 163 CLR 447

Jonson v R [2016] NSWCCA 286

Kennedy v R (2008) 181 A Crim R

Marinells v R [2006] NSWCCA 307

Markarian v The Queen (2005) 228 CLR 357

MLP v R [2006] NSWCCA 271

MRW v R [2011] NSWCCA 260.

Naveed v R [2019] NSWCCA 149

Pearce v The Queen (1989) 194 CLR 610

PWB v R [2011] NSWCCA 84

R v AA [2017] NSWCCA 84

R v AGR (unrep, 24/7/98, NSWCCA

R v Bavadra (2000) 115 A Crim R 152

R v BJW (2000) 112 A Crim R 1

R v Butters [2010] NSWCCA 1

R v Cramp [2004] NSWCCA 264

R v Cunningham [2006] NSWCCA 176

R v Daley [2010] NSWCCA 223

R v Dent (unrep, NSWCCA, 14/3/1991

R v Dodd (1991) 57 A Crim R 349

R v Fidow [2004] NSWCCA 172

R v Fisher (1989) 40 A Crim R 442

R v Gavel [2014] NSWCCA 56

R v Giang [2001] NSWCCA 276

R v Howard [2001] NSWCCA 309

R v Hudson (unrep, 30 July 1998, CCA

R v Ibrahim [2005] NSWCCA 43

R v Knight (2005) A Crim R 252

R v Lett (unrep, 27/3/95, NSWCCA)

R v Lyndon [2003] NSWCCA 152

R v MA (2004) 145 A Crim R 434

R v MAK; R v MSK [2006] NSWCCA 381

R v MMK (2006) 164 A Crim R 481

R v Moon (2000) 117 A Crim R 497

R v Patison (2003) 143 A Crim R 118

R v Pfitzner [2010] NSWCCA 314

R v PGM (2008) 187 A Crim R 152

R v Reynolds (unrep, 7/12/98, NSWCCA)

R v Rose [2004] NSWCCA 326

R v Rushby [1977] 1 NSWLR 954

R v Sea (unrep, 13/8/1990, NSWCCA)

R v Simpson [2001] 53 NSWLR 704

R v T (1990) 47 A Crim R 29

R v Taouk (1992) 65 A Crim R 387

R v Tuala [2015] NSWCCA 8

R v TWP [2006] NSWCCA 141

R v Webster [2005] NSWCCA 110

R v Woods [2009] NSWCCA 55

R v XX (2009) 195 A Crim R 38

RJA v R [2008] NSWCCA 137

Ryan v R (2001) 118 A Crim R 538

Ryan v The Queen (2001) 206 CLR 267

Saddler v R (2009) 194 A Crim R 452

SW v R [2013] NSWCCA 255

Taylor v R [2007] NSWCCA 99

Tepania v R [2018] NSWCCA 247

Veen v R (No 2) (1988) 164 CLR 465

Veen v The Queen (1979) 143 CLR 458

Wakefield v R [2010] NSWCCA 12

Texts Cited:

Phenix, A., Helmus, L.M, & Hanson, R. K. (October 19, 2016) Static-99R & Static-2002R Evaluators’ Workbook

Category:

Sentence

Parties:

Rex
DD

Representation:

Counsel:
ODPP Ms C Hurford
Defence: Mr S Cairns
Solicitors:
ODPP Mr A Meredith
Defence: Mason Mia & Associates: Ms E Mason

File Number(s):

2021/00127439

Publication restriction:

NPO in respect of the names of the complainants and anything that might tend to identify them including the names of the offender and other family members

JUDGMENT

Background, Charges and Maximum Penalties

1. The offender, DD (born 4 January 1969), who is now 54 years of age, appears for sentence in relation to child sexual assault offences involving his three stepdaughters, TF (born 2000), PF (born 2001) and JF (born  2003).

2. There is an additional offence of doing an act with intent to pervert the course of justice in respect of this offending which relates to conduct after the offender was initially arrested and charged.

3. The offender entered pleas of guilty in relation to the child sexual assault offences and the additional public justice offence in the Local Court on 10 June 2022. He asks that three child sexual assault charges on two Form 1 documents pursuant to s32 of the Crimes (Sentencing Procedure) Act 1999 be taken into account and that a related offence of contravene an Apprehended Domestic Violence Order be dealt with pursuant to s. 166 Criminal Procedure Act 1986.

4. The substantive offences, Form 1 matters and the s. 166 matters, totalling fifteen charges, are set out in the table below. The maximum penalties and standard non-parole periods (where applicable) are also identified:

DD OFFENCE-SENTENCE SCHEDULE (114525, rtf)

5. The maximum penalty for an offence represents the legislature’s assessment of the seriousness of the offence, and for this reason, provides a sentencing yardstick: Elias v The Queen (2013) 248 CLR 483. In that regard, the plurality in Markarian v The Queen (2005) 228 CLR 357 said at [31]:

“… careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick”.

Arrest and Pre-Sentence Custody

6. The offender was arrested and charged in relation to the offences on 6 May 2021. The offender has been in custody, bail refused, on these matters since that date. That custody is solely referable to the current charges. Accordingly, the sentence will commence on 6 May 2021. Upon his arrest, an ADVO was applied for, granted and served on him. The pervert the course of justice offence and contravene ADVO matters were committed in breach of the ADVO.

Appropriate Discount

7. The proceedings were commenced after 30 April 2018. Accordingly, the mandatory discount regime prescribed by s. 25D(2) of the Crimes (Sentencing Procedure) Act 1999 applies. In this case, the pleas were accepted at committal. Accordingly, s. 25D(2)(a) applies and the appropriate discount for each plea of guilty is 25%. Such a discount will be provided.

AGREED FACTS

8. The Agreed Facts prepared by the Crown and Defence and signed by the offender with minor amendment not affecting substance are as follows:

9. The offender, DD, was born on 4 January 1969.

10. The complainants in this matter are:

PF - DOB [suppressed] 2001

JF - DOB [suppressed] 2003

TF – DOB [suppressed] 2000

11. The complainants are each the biological children of JD and AF. As at late 2006, the complainants and their parents resided in the Northern Territory.

12. In November 2006, the father of the complainants, AF, died. In March 2006, following the death of AF, the complainants and their mother moved to Parkes, NSW.

13. Shortly after relocating to Parkes, JD started a relationship with the offender. The complainants, their mother and the offender resided together, initially at a house in Parkes.

14. JD and the offender married in 2009. Around this time, they purchased and moved into a different house (second family home) in Parkes.

15. The offender has three children from a prior relationship, namely TD, MD and BD.

16. Over the period of the offending, the offender and JD had a cabin at Lake Burrendong, which the family would regularly visit.

OFFENDING AGAINST PF - Sequence 58: s66EA(1) Crimes Act 1900

17. The offender began sexually assaulting PF when she was 6 or 7 years of age, after she had commenced primary school. PF stated that the sexual assaults persisted over a period of 5-7 years.

18. Due to PF’s age at the time of the offending and the frequency of assaults, she stated to police, “I don’t remember dates or years or months or anything like that. I just remember parts of the things that had happened”.

19. When asked by police about the frequency of incidents with the offender, PF stated,

“Sometimes two, three times a week, um, when I was younger. But as I got older, he um, well, to hide it a bit more ‘cause I was older he did it less often.”

Incident in complainant’s bedroom

20. The first incident that PF can recall is a time when she woke up in her bedroom during the early morning to see the offender stepping back from her. The offender had his penis sticking out of his pants and had placed it into PF’s mouth.

21. PF stated that she did not believe this was the first actual incident as she does not recall being shocked by the offender’s actions.

After school incidents

22. When PF attended primary school, she would catch the bus home.

23. PF recalls that when she arrived home the offender would make her go into his bedroom where he would be sitting at a computer desk, sometimes watching pornography on a computer. The offender would ‘usher’ PF to sit on his lap, place his hand on PF’s genitals and ‘play with her’. The offender would also ‘play with himself’.

24. PF described that the incidents ‘moved on from there’. The offender would cause the complainant to go onto her knees and place his penis into her mouth.

25. On multiple occasions the offender placed lubricant on his fingers and inserted his fingers into PF’s genitals. At the time of this offending PF had not yet started having her period.

26. PF described the offender engaging in sexual acts with her ‘constantly’ and that the offending progressed to sexual intercourse as she got older.

Vibrator incidents

27. On a number of occasions, the offender used a black and silver vibrator to sexually assault PF.

28. The offender obtained the vibrator from under a bottom draw in the bedside table in his and JD’s bedroom. The offender, whilst PF was on a study chair, rubbed the vibrator on the outside of PF’s genitals before inserting the vibrator into PF’s genitals. PF recalled the offender using his saliva as lubricant for the vibrator.

29. PF recalls the offender using the vibrator to sexually assault her on more than 5 occasions.

Poolroom incidents

30. The second family home in Parkes had an indoor swimming pool. The offender sexually assaulted PF in the pool room on a number of occasions.

31. PF recalls that whilst she was in primary school the offender would come into the pool room whilst she was swimming. The offender moved the complainant behind a screen in the pool room and placed his penis into the complainant’s mouth.

32. On at least one occasion the offender ejaculated into PF’s mouth.

33. On one occasion the offender stated to PF, “If you let me come in your mouth, I will buy you a Breyer horse.” The offender took PF behind the screen in the pool room and placed his penis into her mouth. PF recalls the offender standing up on this occasion, whereas on other occasions he would sit on a white chair. The offender placed PF on her knees and held her head so that her mouth was over his penis before ejaculating into her mouth. The offender held the complainant until she swallowed the offender’s semen.

Garage incidents

34. The offender sexually assaulted PF in the garage of the second family home in Parkes on a number of occasions.

35. The offender would take PF into the garage, move her behind a car, and place his penis into her mouth. The complainant recalls this happening 10-12 times.

36. On a number of occasions, the offender had penile/vaginal intercourse with PF in the garage. PF is able to recall one occasion during which the offender laid her across the back seat of a car in the garage and had penile/vaginal intercourse with her.

Shed incidents

37. The offender sexually assaulted PF in two sheds at the second family home on several occasions.

38. PF stated to police that, “I can’t recall a specific day as there were so many incidents in both sheds that he made me give him oral sex… a lot of incidents happened in the sheds before, during and after I was going through puberty”.

39. Sexual assaults in the sheds involved the offender using force to push his penis into PF’s mouth. In the large shed, the offender would, on occasions, place PF into a boat in the shed, place his penis into PF’s mouth and insert his fingers into PF’s genitals. PF recalls that the offender would always ejaculate.

Tooth removal incident

40. PF’s dental records indicate she underwent a tooth extraction on Wednesday 18 February 2015. As at that date, PF was 13 years and 4 months of age.

41. On 18 February 2015, PF stayed home from school for the offender to take her to the dentist. Before attending the dentist, the offender took the complainant into his bedroom and got on top of her. PF attempted to push the offender off her, however, was unable to do so. The offender had penile/vaginal intercourse with her. The offender did not use a condom whilst having sexual intercourse with her. PF recalls that the sexual intercourse lasted for approximately 5 minutes, during which the offender was stating to her, “It’s ok”.

Burrendong Dam incident/s

42. The offender sexually assaulted PF at the family’s cabin at Burrendong Dam. PF stated to police that she “cannot remember any specific incidents” or their timing. PF stated that she was not sure how many occasions there were but that “there were multiple times”.

43. The sexual assaults at Burrendong Dam involved the offender taking PF into his bedroom and licking her genitals, as well as inserting his fingers into her genitals.

44. At other times, the offender took PF onto a boat that would either be out in the water or next to the cabin and lick her genitals and place his fingers inside her genitals.

Newcastle hockey trip incident

45. Sometime between December 2015 and March 2016, when PF was 14 years of age, the offender travelled with PF to Newcastle for PF to participate in hockey training for the NSW state team. The complainant and offender stayed in a motel overnight as part of the trip.

46. Whilst in their hotel room, which contained two single beds, the offender started to “play with himself”. The offender then moved over to PF’s bed, pulled the sheets down and pulled down PF’s pants. The offender then put his head between the complainant’s legs and licked her genitals for approximately 5 minutes. The offender also inserted his fingers into the complainant’s genitals. During this time the offender masturbated until he ejaculated.

Game subscription incident

47. Around July 2017, when PF was 15 years and 9 months of age, she asked the offender if there were any chores she could do to earn money for a subscription to a game called “Start Stables”. The offender replied, “You know what chores to do”.

48. The offender sat next to PF and started “playing” with PF. The offender then moved the complainant’s pants and underwear to the side and inserted his penis into PF’s genitals. As the offender was trying to insert his penis he stated, “Come on, come on, it will be quick. You can get your game”. The offender had sexual intercourse with PF until he ejaculated inside her while not wearing a condom.

49. Afterwards the complainant ran to the bathroom and locked the door. The complainant attempted to wash her genitals and remove the offender’s semen from her.

50. Records obtained by police confirm that PF purchased a subscription to “Start Stables” on 7 July 2017.

Shower incident

51. On one occasion the offender asked PF to have sex with him. PF told the offender she was having her period. The offender again asked PF to have sex with him telling her they could have sex in the shower where it would be clean. PF does not recall anything further happening with the offender on that occasion.

Cessation of offending

52. When PF was 15/16 years of age, she told the offender to stop engaging in sexual activity with her. Despite this, and the offender’s statement to PF that he would stop, PF stated to police that “incidents still occurred”. The offender eventually ceased sexually assaulting PF when she started dating a boy when she was 16/17 years of age.

Threat by offender to complainant

53. When PF was around 13 years of age, she was in a car alone with the offender. The offender told PF that he had helped a stranger on the side of the road. The offender recounted to PF that the stranger stated to him that “if you need help with anything else just let me know… I know how to make people disappear”. After telling the complainant this story the offender stated to PF “so if you tell anyone, I might make that happen to you”.

OFFENDING AGAINST JF

54. JF recalls that the offender commenced sexually assaulting her when she was 9 years of age.

Queensland hockey trip incident

55. Sometime around 1 October 2014, with JF turning 11 years of age on 13 October 2014, the complainant and her family travelled to Queensland for PF to participate in the NSW state hockey team. On the way to Brisbane the family stayed overnight at SW’s (JD’s brother) house in Sydney.

56. Whilst everyone was asleep at SW’s house, JF got out of bed and went to an upstairs bedroom and got into a bed with the offender. The offender put his hand inside JF’s pants and touched her genitals. The offender then, multiple times, placed his hand into his mouth and put the same hand back into the complainant’s pants and rubbed her genitals. (Sequence 3: s61M(2) CrimesAct 1900)

Blanket incident

57. On an occasion when JF was in primary school, the offender and JF were sitting together at home on their couch. The rest of the family were home at the time. JF and the offender were sitting together with a blanket over them. The offender placed his hand in JF’s pants and directly rubbed her clitoris. (Sequence 39: s61M(2) CrimesAct 1900).

Vibrator incident

58. On an occasion when JF was in primary school, the offender and JF were home alone. The offender exited his bedroom and approached JF in the family loungeroom. The offender produced a black and silver vibrator and pressed it against JF’s genitals on the outside of her clothing. (Sequence 38: s61M(2) CrimesAct 1900).

Massages

59. When JF was in high school, the offender regularly massaged her legs, particularly after JF had engaged in exercise or sporting activity. During these massages the offender would rub his hand up against JF’s genitals.

60. On one occasion the offender was rubbing JF’s legs whilst she was laying on a mattress in the family loungeroom. JF looked back at the offender and saw that, whilst he was rubbing her legs, he was masturbating. (Sequence 35: s61M(2) CrimesAct 1900)

61. On another occasion when JF was in year 7, the offender was rubbing the complainant’s legs on the same mattress which was now in the offender’s bedroom. JF was laying naked on the mattress with a towel over her. JF saw that the offender was masturbating whilst he was rubbing her legs. JF attempted to push the offender away but was unable to get free. The offender ejaculated on JF’s leg. (Sequence 37: s61M(2) Crimes Ac 1900t)

62. Immediately after the incident JF ran to the bathroom to try and clean herself.

Pornography

63. JF recalls walking into the offender’s bedroom, through an open door, to find the offender masturbating whilst watching pornography. JF recalls the offender asking if she could “help him out”.

Cessation of offending

64. JF does not recall any further incidents with the offender after she started dating a boy in 2017.

OFFENDING AGAINST TF

65. TF recalls that the offender sexually assaulted her on approximately 5 occasions when she was 13 or 14 years of age, being around the time she had her first period.

First incident

66. The first incident TF recalls is being at home with the offender. TF got into the offender’s bed and watched a movie. During the movie TF fell into a light sleep. TF woke to the offender tickling her stomach, following which he placed his hand inside her pants and directly touched her genitals. (Sequence 26: s61M(2) CrimesAct 1900) The offender then moved TF’s hand onto his penis. During this incident TF pretended to be asleep. (Sequence 54: s61M(2) CrimesAct 1900)

Second incident

67. Approximately one week after the first incident, TF was watching a movie in her sister’s room. The offender entered the room, approached TF, placed his hands inside her pants and rubbed her genitals. (Sequence 27: s61M(2) CrimesAct 1900) The offender then grabbed TF’s arm and placed her hand on his penis. The offender asked the complainant “Do you like it?”

Burrendong Dam – Christmas

68. During a Christmas trip to the cabin at Burrendong Dam, the offender and TF were sitting together on a couch inside the cabin. The offender placed his hands inside TF’s pants and inserted his fingers inside her genitals. The offender removed his hand from her pants whenever anyone approached them and would reinsert his fingers into her genitals when they left. (Sequence 52: s66C(4) CrimesAct 1900)

69. The offender then got TF to go into his bedroom in the cabin. The offender placed TF on the bed and moved her swimmers to the side. The offender then licked TF’s genitals. During this time, TF saw the offender’s exposed erect penis. The offender stopped performing cunnilingus on TF as he heard someone enter the cabin. (Sequence 53: s66C(4) CrimesAct 1900)

Game purchase

70. On one occasion TF was home with the offender. She asked the offender if he could purchase her a game. The offender stated to her “You know what you have to do” and asked the complainant for a kiss. TF gave the offender a kiss on the cheek and then one on the lips. The offender stated he wanted a proper kiss with tongue – TF refused stating it was ‘gross’. (Sequence 55: s61O(2) CrimesAct 1900)

Massage incident

71. When TF was in High School, being 13/15 years of age, the offender would massage her legs, usually following hockey. On one occasion at the family home the offender massaged TF’s legs and caused her underwear to move to the side exposing her genitals. Whilst massaging TF’s legs the offender placed one of his fingers on her genitals for a number of minutes. (Sequence 31: s61M(2) CrimesAct 1900)

Cessation of offending

72. On one occasion the offender stated to TF that “you know what you have to do” when she asked for a game. TF became upset and stormed away from the offender. Shortly after that the offender approached TF and she indicated to the offender that her mother and biological father would not like the things the offender had done to her. The offender said he would not do anything again.

73. At that time, the offender told TF that she was not allowed to tell anyone about his actions towards her as it was ‘their secret’ and that it would hurt her mother if she found out.

DISCLOSURES

PF

74. In or about January 2019, PF disclosed to her boyfriend, BD, that the offender had been sexually assaulting her.

75. In or about February 2021, PF disclosed to her friend, ID, that a family member had been sexually assaulting her since she was in primary school.

TF

76. Sometime in 2018, TF disclosed to her boyfriend, TW, that the offender had been assaulting her. TF told TW that she did not want anything done at the time as she did not want to ruin her mother and sisters’ lives.

JF

77. Sometime in 2016, JF disclosed to her boyfriend, RD, that the offender had been sexually abusing her.

78. In January 2021, JF disclosed to her boyfriend, JT, that the offender sexually abused her as a child. Despite JF asking JT not to tell anyone about the disclosure, JT discussed the matter with his mother and grandmother. Sometime in March 2021, JT’s mother and grandmother approached JF and encouraged her to speak to her mother about the disclosure.

79. On 5 May 2021, JF disclosed to her mother that the offender had been touching her inappropriately.

80. As a result of JF’s disclosure, JD had conversations with her other daughters, in which she indicated to them she was leaving the offender. During one of these conversations PF disclosed to her that “he has done absolutely everything you can think of to me, and I kept my mouth shut so that he would leave JF alone”.

81. All three complainants participated in recorded interviews with police on 6 May 2021, during which they outlined the offending by the offender.

ARREST AND ERISP

82. On 6 May 2021, police arrested the offender and transported him to Parkes Police Station. The offender was cautioned and participated in an electronically recorded interview. During the interview the offender made a number of admissions including:

Admissions regarding TF

1. He did something with TF on one occasion.

2. On an occasion with TF at Burrendong Dam, she was getting pretty close to the offender. He stated she went to his bedroom and laid down with her legs open and said, “Come here Woody”. He stated that one thing led to another and “I went down on her”, meaning he licked her genitalia. The offender stated TF only had a bikini on and he pulled it to the side. The offender stated he stopped as he heard someone come inside. The offender stated that TF might have been under 16 and he thought she really wanted sex but he “wasn’t going down that path”.

3. The offender denied inserting his fingers into TF’s genitals at Burrendong Dam but admitted “she got the end part right” in relation to him licking her genitals.

Admissions regarding PF

1. The offender admitted to sexually assaulting PF stating, “PF and I go back a bit”.

2. The offender was unable to state when the incidents with PF occurred. He stated it started not long after the family moved into the second family home.

3. The offender admitted to having had sexual intercourse with PF. The offender stated that sexual interaction with PF “didn’t happen much”. He stated he could only remember 2 or 3 times in the computer room and one in the toilet.

4. The offender admitted he did not wear a condom when he had sexual intercourse with PF. He stated he never ejaculated inside her genitals.

5. The first time the offender recalled having penile/vaginal intercourse with PF was in the pool room – he stated he “just put the tip in”.

6. The offender stated that PF instigated the offending by touching him first. He stated, “She’s the one that started it all”.

7. In relation to the Newcastle trip incident, the offender admitted performing cunnilingus on PF after she “pointed her ass in my face and went to her bed with no pants”. The offender stated that he thought PF wanted sex, but she said “No”.

8. In relation to the number of incidents the offender stated to police “fucked if I know how many times, I’ve performed oral on PF”.

9. He admitted that the sexual abuse could have been a “weekly occurrence”.

Admissions regarding JF

1. The offender denied assaulting JF on the family trip to Queensland. He also denied ever masturbating with or ejaculating on JF.

2. The offender stated to police that the only incidents relating to JF may have been “accidental slips” near her vagina whilst massaging her legs.

GAOL CALLS

83. The offender was refused bail by police on 6 May 2021 and has remained in custody since that time. Police obtained a search warrant for the recorded phone calls the offender made from custody.

Sequence 43: Section 319 Crimes Act 1900

Sequence 44: s14(1) Crimes(DomesticandPersonalViolence)Act 2007

84. The offender had a number of phone calls with his daughter, TD, during which he made requests for TD to speak to the complainants in order to ask them to have the charges “dropped”. In one phone call with TD the offender stated “You could talk to (TF) and (TF) could talk some sense into (JF)…. It’s gunna take a lot of years off me here”.

85. During one phone call with his son, MD, the offender stated “I just want to see if she could talk to the two of ‘em at least and if they could drop them, they might not be as bad…. I’m still wrong, but she instigated it”.

86. During a recorded phone call with JD the offender admitted to sexually assaulting PF stating “I just can’t believe I did it. I know I took (PF’s) innocence”. The offender then queried whether the complainants would drop the charges so that he could “help out” JD financially.

Purposes of Sentencing

87. In Veen v R (No 2) (1988) 164 CLR 465, Mason CJ, Brennan, Dawson and Toohey JJ said:

“The purposes of criminal punishment are various: protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

88. The purposes of sentencing are now set out in s. 3A Crimes (Sentencing Procedure) Act 1999 as follows:

Section 3A: The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

89. In R v MA (2004) 145 A Crim R 434, the Court of Criminal Appeal stated that s. 3A is essentially a codification and elaboration of the purposes of criminal punishment described in Veen v R (No 2) (1988) 164 CLR 465. Dunford J (with Studdert and James JJ agreeing) observed at [27]:

“Deterrence, retribution, and protection of the community are not to take precedence to the exclusion of rehabilitation, but neither is rehabilitation to take precedence over deterrence, retribution and punishment. All must be balanced in the overall synthesising of the sentence.”

90. The purposes of punishment set out in s. 3A are constrained by other sentencing principles including the principles of proportionality and totality: R v MMK (2006) 164 A Crim R 481.

Appropriate Penalties

91. The Crown submits the only sentence reasonably open to the Court is one of full-time custody to reflect the seriousness of the offences, and the need for general deterrence, specific deterrence, denunciation, punishment and protection of the community to be given determinative significance in the sentencing exercise.

92. The ultimate question facing this Court is the period of imprisonment to be imposed. The Crown submits that the period of imprisonment imposed in this case should be substantial, having regard to the seriousness of the offences and purposes of sentencing as outlined in s. 3A.

93. The defence submission at [52]: “accepts that the only sentence reasonably open to the Court is one of fulltime custody, having regard to the need for both specific and general deterrence.”

Assessment of the Objective Seriousness/Gravity of the offences

94. As discussed in Tepania v R [2018] NSWCCA 247 at [112] per Johnson J, with whom Payne JA and Simpson AJA agreed:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

95. The parties have made submissions in respect of objective seriousness on the basis of comparing the individual offence to the mid-range of objective seriousness for offences of that type whether or not it is an offence in respect of which a standard non-parole has been legislated.  While it is not necessary that I follow that approach, particularly in respect of offences that do not have a standard non-parole period provided, I will follow that approach to further the objective of transparency in sentencing. I note that since the introduction of standard non-parole periods it has become standard practice although unnecessary for both the prosecution and the defence to adopt that approach.

General Principles – Child Sexual Assault Matters

96. The community regards sexual offences against children, particularly very young children, with abhorrence. Young children have little or no capacity to take measures to protect themselves from those who would commit sexual offences against them.

97. Children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties in later life, caused by child sexual assault offences: R v Dent (unrep, NSWCCA, 14/3/1991) per Lee J at [6], with whom Gleeson CJ and Loveday J agreed.

98. General deterrence is particularly important where the offender is in a position of trust in relation to the victim(s), as was the case here. In such cases, recognition is given to the fact that children in a family setting are virtually helpless against sexual attack by a parent and that children have a right to be protected from sexual molestation within the family unit, which can only be achieved by the courts imposing sentences of a salutary nature: R v Hudson (unrep, 30 July 1998, CCA at 3 Sully and Ireland JJ with whom Spigelman CJ agreed). See also R v BJW (2000) 112 A Crim R 1 per Sheller JA at [20].

99. In Ryan v The Queen (2001) 206 CLR 267 Kirby J stated at [118]:

“A fundamental purpose of the criminal law, and of the sentencing of convicted offenders, is to denounce publicly the unlawful conduct of an offender. This objective requires that a sentence should also communicate society’s condemnation of the particular offender’s conduct. The sentence represents ‘a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law’. In the case of offences against children, which involve derogations from the fundamental human rights of immature, dependent and vulnerable persons, punishment has an obvious purpose of reinforcing the standards which society expects of its members.”

100. In today’s society, it is well understood that child sexual assault offences are objectively serious and cause significant and long-lasting harm to victims: Chamseddine v R [2017] NSWCCA 176 at [50]. In R v Gavel [2014] NSWCCA 56 the Court stated at [110]:

“This Court has observed child sex offences have profound and deleterious effects upon victims for many years, if not their whole lives: R v CMB [2014] NSWCCA at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]… 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].”

101. For the above reasons, it is incumbent upon the courts to send a very strong message of both general deterrence and denunciation when imposing sentences for offences of this kind.

102. In sentencing an offender for such matters, a sentencing judge should identify where a particular offence lies in the spectrum of seriousness/objective seriousness: Ibbs v The Queen (1987) 163 CLR 447. When assessing the criminality of each of the offences, the Court will take into account a number of matters including:

1. The character of the assault including the degree of physical contact involved: R v PGM (2008) 187 A Crim R 152 at [31].

2. The age difference between the victim and the offender, which can aggravate the offence: Corby v R [2010] NSWCCA 146 at [77].

3. The specific age of the child within the range prescribed by the offence, the duration of the conduct and any use of coercion: BT v R [210] NSWCCA 267 at [22]-[24]. Whilst threats may aggravate an offence, an absence of threats “may have much less, and perhaps little weight” in the context of offences by persons in positions of authority over their victims than in cases where offenders are not in such a position: BT v R [2010] NSWCCA 267 at [24] per Hulme J referring to R v Woods [2009] NSWCCA 55 at [52]-[53].

103. Other relevant factors might include:

1. How the offence took place;

2. Over what period of time; and

3. Any immediately apparent effect on the victim.

104. It is noted that the age of the victim is an element of the charges for which the offender is to be sentenced. Generally, the younger the child, the more vulnerable and defenceless the child will be, and the more serious the criminality: PWB [2011] NSWCCA 84 at [11]. In MLP v R [2006] NSWCCA 271, a case dealing with an offence pursuant to s. 66A, Kirby J stated at [22]:

“The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable.”

105. In R v T (1990) 47 A Crim R 29, Gleeson CJ said in this regard:

“The younger the girl was when the sexual approach was started the more likely it would be that the girl’s will was overborne and accordingly the more serious would be the crime and the more severe the penalty.”

106. In RJA v R [2008] NSWCCA 137, the Court of Criminal Appeal was called upon to consider whether the Judge at first instance had erred when he took into account on sentence the age of the victim, although that was a matter which was an element of the offences, being s. 66A charges. In finding that the judge at first instance had erred Spigelman CJ (Price and McCallum JJ agreeing) said:

“It may have been open to make some adjustments for the additional vulnerability of an eight-year-old. I do not see how that can be said for a nine-year-old.”

107. The most significant matter which determines where a particular offence is to be placed in the spectrum of offences is the degree to which the offender is seen to have exploited the youth of the child: R v Sea (unrep, 13/8/1990, NSWCCA) per Badgery-Parker at p 3. In relation to this general principle, in R v Fisher (1989) 40 A Crim R 442 at 445, it was said by Yeldham J with whom Maxwell J agreed:

“This court has said time and time again that sexual assaults upon young children, especially by those who stand in a position of trust to them, must be severely punished, and … those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also in an endeavour to deter others who might have similar inclinations … [The Court of Criminal Appeal] … must serve notice upon judges who impose weakly merciful sentences… that heavy custodial sentences are essential if the Courts are to play their proper role in protecting young people from sexual attacks by adults”.

108. It is imperative that the offender’s subjective considerations do not cause inadequate weight to be given to the objective circumstances of a case: R v Rushby [1977] 1 NSWLR 954; R v Dodd (1991) 57 A Crim R 349. Even after taking into account the offender’s subjective features, and all other matters relevant to the sentencing, such as personal and general deterrence, the sentence must reflect the seriousness of the offence: R v Dodd (1991) 57 A Crim R 349. It should also be proportional to the criminality involved in the offence: Veen v The Queen (1979) 143 CLR 458; Veen v The Queen (No 2) (1988) 164 CLR 465. Whether the proposed sentence meets these criteria will principally be determined by a consideration of the nature of the criminal conduct when considered against the maximum penalty prescribed for the offence: R v Moon (2000) 117 A Crim R 497. The court must also take into account any SNPP provided as a guidepost.

General Principles – Section 66EA

109. One of the charges for which the offender is to be sentenced is a charge of persistent sexual abuse contrary to s. 66EA Crimes Act 1900.

110. In Burr v R [2020] NSWCCA 282 Johnson J (with whom Leeming JA and Rotham J agreed), stated at [106]:

“It may be seen from statements in decisions of this Court concerning sentencing for a s. 66EA offence as enacted in 1998 (and before the 2018 amendments) that a number of factors will bear upon an assessment of the objective seriousness of the offence (see [86]-[98] above). These include:

(a) the number of “sexual offences” (as defined in s. 66EA(12)) which were committed on separate occasions by the offender against the victim - the minimum number of ingredient offences to constitute a s. 66EA offence was three and the greater the number of offences beyond that threshold, the more serious the s. 66EA offence will be;

(b) the nature of the sexual offences committed by the offender against the victim – in this case, each of the 12 offences was an offence under s. 66C(3) Crimes Act 1900 for which the maximum penalty was imprisonment for 10 years – the 12 offences included penile-vaginal intercourse, fellatio, cunnilingus, digital penetration of the anus and insertion of a vibrator into the victim’s vagina;

(c) the age of the victim at the time of the ingredient offences – “child” is defined in s. 66EA(12) as meaning a person under the age of 18 years [as was the age under the previous version of the charge] and the younger the victim was at the time of the ingredient offences, the graver the s. 66EA offence will be – here the ingredient offences under s. 66C(3) applied to a victim between the ages of 14 and 16 years – the younger the victim is in that relatively narrow band period, the more serious the offence;

(d) the period of time during which the ingredient offences were committed against the victim;

(e) the age of the offender at the time of the commission of the ingredient offences against the victim and the age differential between the offender and the victim during the relevant period.

(f) the context in which the offender had access to the victim to commit the ingredient offences over the period of time which constituted the s. 66EA offence – if the context involves the offender and the victim being in a family or quasi-family setting, which has a capacity to influence the power differential between the two persons and the susceptibility or vulnerability of the victim, this will elevate the seriousness of the s. 66EA offence.”

111. While the 2018 amendments reduced the number of separate offences to two and increased the maximum penalty to life imprisonment, the factors outlined by Johnson J remain relevant to the objective seriousness of the criminality under the current offence: GP (a pseudonym) v The Queen [2021] NSWCCA 180 per Brereton JA, N Adams and Cavanagh JJ at [64]:

“Both the new and old sections are concerned with persistent abuse of a child. Whilst the wording of s. 66EA has changed since Burr, there is nothing in the new provision which might suggest that the factors identified by Johnson J as being important to assessing objective seriousness under the old provision would be different when sentencing under the new provision.”

Access to the victims, position of trust and authority generally

112. The offender was the stepfather of the three victims. He raised the victims’ “as his own children”: see report of Ms Diana Grujoska, psychologist, at [7]. By virtue of that relationship, he occupied a position of trust and authority in relation to TF, PF and JF. The commission of the offences by the offender constituted a gross breach of the trust which had been placed on him.

113. Abuse of a position of trust and abuse of a position of authority are identified in s. 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 as aggravating factors. They are different concepts, and in some cases, it may be open to take into account a breach of trust where the offender committed an offence which had as an element a breach of a position of authority. For that to be permissible, the facts giving rise to the two aggravating features must be different. The sentencing judge must indicate why there was both a breach of trust and a breach of authority and why both aggravating factors applied: MRW v R [2011] NSWCCA 260. It was held to be an error for the judge to take into account that there was a breach of trust where the offence alleged an abuse of authority and the facts giving rise to each aggravating factor were the same: Beavis v R [2018] NSWCCA 248 at [245]-[256].

114. Here the breach of trust and authority arise out of the same facts and are intertwined such that they should be considered together, not separately.

115. A breach of trust is not an element of any of the substantive child sexual assault offences, but it is an element of some of the “unlawful sexual acts” which underlie the s. 66EA offence.

116. A breach of authority is an element of sequences 52, 53 and 55 involving TF (discussed in more detail in the context of each of the offences).

Application of the above principles to the offence involving PF

117. The offender has pleaded guilty to one charge of persistent sexual abuse of a child contrary to s. 66EA Crimes Act 1900 involving the victim PF.

118. PF recalls being aged around 6 or 7 years old when the offending against her started and about 16 or 17 years old when it ceased: Agreed Facts at [17] and [64]. In those circumstances and given the ongoing nature and context of the offences, I accept as submitted by the Crown that the offender exploited the youth of PF in a considerable way for his own sexual purposes. There was an age difference between the offender and PF of almost 32 years and 9 months.

119. A substantial portion of the offending involving PF occurred at the second family home in Parkes. The family moved to that location in 2009: Agreed Facts at [14]. The offending against PF occurred in various locations at that house including PF’s bedroom, the offender’s bedroom, the pool room, the garage and two sheds which were on the property: Agreed Facts at [12], [15], [22], [26], [29], [33].

120. Other offending involving PF occurred at the family’s cabin at Burrendong Dam, on the family boat and in a motel room during a hockey training trip: see Agreed Facts at [42], [44] and [45].

121. The charge certificate particularises the s. 66EA offence as occurring between 1 January 2009 to 26 September 2017 when PF was 7 years of age and continuing through to her 16^th birthday. The offending extended over a period of approximately 8 years 9 months. When the offender started sexually abusing PF, PF was well under the age of 10 years. I accept, as submitted by the Crown, that her age was such that she was highly vulnerable to the offender and his predatory behaviour. The offender was significantly older, being a mature adult male, aged between 39 to 48 years old. The age differential between the two was significant, being almost 32 years and 9 months.

122. When PF was 13 years of age, the offender manipulated, intimidated and pressured PF, essentially threatening her to suppress any complaint she might make about the abuse in an attempt to ensure her silence. This was achieved by the offender telling PF a story about a stranger he had helped. He reported to PF that the stranger had told him “… if you need help with anything… just let me know…. I know how to make people disappear”. The offender then told PF “So if you tell anyone I might make that happen to you”: Agreed Facts at [53].

123. The offender did not voluntarily cease offending against PF even after she asked him to stop doing what he was doing. He only stopped when PF started dating when she was 16 or 17 years of age: Agreed Facts at [64]. The s. 66EA charge specifically excludes all conduct after PF turned 16 and any such conduct after that time must be put to one side for the purpose of sentence.

124. Applying factors referred to in Burr referred to above:

(a) the precise number of “sexual offences” above two is unknown. Because of her age when the offending commenced, and the frequency of offending thereafter, it is unsurprising that PF does not recall dates, years or months of many of the sexual acts and is only able to recall parts of the things that happened to her: Agreed Facts at [18]. This is a common and understandable occurrence with ongoing child sexual abuse and is a matter which is specifically recognised by the charge.

The conduct described by PF includes descriptions of specific and more generalised offending by the offender over a substantial period, as indicated above, more than 8 years. The conduct includes penetrative and non-penetrative sexual activities.

PF described the frequency of offending as “… two, three times a week… when I was younger. But as I got older… he did it less often”: Agreed Facts at [19]. PF also described the offender engaging in sexual acts with her “constantly” and progressing over time to penile/vaginal intercourse when she was older: Agreed Facts at [26].

PF described the different types of sexual acts that occurred and/or locations where they happened. In so characterising the conduct, she referred to:

• digital penetration of her vagina “on multiple occasions” before her period started: Agreed Facts at [25].

• using a vibrator on her “on more than 5 occasions”: Agreed Facts at [29].

• fellatio in the pool room and penile/vaginal intercourse in the garage on “on a number of occasions”: Agreed Facts at [30], [37].

• fellatio in the garage “10-12 times”: Agreed Facts at [35].

• sexual assaults in the two sheds “on a number of occasions” Agreed Facts at [37].

• PF could not “recall a specific day [in the sheds] that… [the offender] made… [her] give him oral sex… a lot of incidents happened in the sheds before, during and after I was going through puberty”: Agreed Facts at [38].

• “… there were [also] multiple times” when the offender sexually assaulted PF at the family’s cabin which included cunnilingus and digital penetration: Agreed Facts at [42].

• the above matters are in addition to the specific offences PF particularised at [20], [32]-[33], [36], [39], [46], [48] and [51].

It is clearly apparent that the sexual offences involving PF were regular, frequent and sustained over the specified period.

So much appears to have been acknowledged by the offender in his ERISP when he acknowledged “[PF] and I go back a bit”, that the offending against PF started “not long after the family moved into [the second home]” which was in 2009. The offender told police he couldn’t recall the number of times he performed oral sex on PF stating “fucked if I know how many times I’ve performed oral on [PF]” admitting that it could have been a regular occurrence: Agreed Facts at [82(d), (e) and (l)]. The offender also made admissions to having penile/vaginal sexual intercourse with PF but downplayed this and denied that it was a regular occurrence. Agreed Facts at [82(g)].

(b) the nature of the sexual offences was varied. The offender committed frequent sexual activities on PF including by causing PF perform oral sex (fellatio) on him, touching and rubbing PF on the outside of her genitals, penetrating PF’s genitals with his fingers, rubbing a vibrator on the outside of PF’s genitals and also inserting the vibrator into her genitals, having penile/vaginal intercourse with PF, performing oral sex (cunnilingus) on PF, masturbating in her presence and requesting PF to have sexual intercourse with him in the shower when she had her period: Agreed Facts at [20]-[51].

One of the acts of fellatio, being the first act particularised, was initiated by the offender when PF was in bed, asleep, which is an additional matter which elevates the seriousness of that act because it adds additional vulnerability: Agreed Facts at [12]. She was defenceless by virtue of her age and the fact that she was asleep when it started. During at least one act of oral sex (fellatio), the offender ejaculated inside PF’s mouth, which I find would have been particularly traumatic: Agreed Facts at [23]-[25]. At times the offender used force (not otherwise particularised) to make PF perform fellatio on him: Agreed Facts at [31]. The use of a vibrator on the occasions indicated is indicative of some premeditation by him.

On at least some occasions when the offender engaged in sexual intercourse with PF, he did not use protection: Agreed Facts at [33], [40]. Accordingly, those sexual assaults carried with them a risk of pregnancy when occurring after she had reached puberty. On at least one of those occasions, he ejaculated inside her genitals: Agreed Facts at [40].

Overall, the offending against PF was calculated, callous and predatory.

I accept that there were a significant number of serious individual qualifying offences committed against PF.

The precise comparative offences and their maximum penalties are discussed below.

(c) the age of the victim at the time of the offences - As indicated above, PF was aged 7 to 15 years old.

(d) the period of offending - As indicated above, the offending occurred over more than 8 and a half years, starting in 2009 and continuing up until 26 September 2017 (the day before PF turned 16).

(e) the age of the offender - As indicated above, the offender was aged during the period of offending between 39 to 48 years.

(f) the context in which the offender had access to the victim - The offender was the stepfather of PF. That familial relationship provided him with unlimited access to her and enabled him to commit the offences.

125. Pursuant to s. 66EA(8):

“(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.”

126. The criminality occurred between 1 January 2009 to 26 September 2017 when PF was aged 7 continuing through to her 16^th birthday. During that period, the offender committed “unlawful sexual acts” including:

(a) Fellatio, cunnilingus, digital penetration, penetration with an object (vibrator) and penile/vaginal intercourse:

Section 66A(2) aggravated sexual intercourse < 10 years (authority) – Maximum penalty life imprisonment. SNPP 15 years.

[Note: PF turned 10 on 27/9/2011.]

Section 66C(2) aggravated sexual intercourse > 10 < 14 years (authority) – Maximum penalty 20 years imprisonment. SNPP 9 years. [Note: SNPP only applicable from 29 June 2015 (almost 3 months before PF turned 14). PF turned 14 on 27/9/2015.]

Section 66C(4) aggravated sexual intercourse > 14 < 16 years (authority) – Maximum penalty 12 years imprisonment. SNPP 5 years.

(b) Touching/rubbing of the genitals with a finger(s) or vibrator

Section 61M(2) indecent assault < 16 years - Maximum penalty 10 years imprisonment. SNPP 8 years.

(c) Masturbating in the presence of PF and requesting PF to have sex in the shower

Section 61O(1) commit/incite act of indecency < 16 years (authority) – Maximum penalty imprisonment 5 years. There was no applicable SNPP.

127. The following aggravating factors under s. 21A(2) Crimes (Sentencing Procedure) Act 1999 apply to the s. 66EA offence:

• Many of the “unlawful sexual acts” relied on by the Crown occurred in the home the victim occupied with her family including the offender. This was a place where PF was entitled to feel safe and secure. This is an aggravating factor under s. 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999 notwithstanding that the offender was also entitled to be there: Jonson v R [2016] NSWCCA 286.

• The offender abused a position of trust in relation to PF which is an aggravating feature under s. 21A(2)(k) as indicated above. Breach of trust is not an element of the s. 66EA offence although it is an element of most of the “unlawful sexual acts” referred to above which underpin the factual basis of the charge. In those circumstances, it is relevant, but caution is required to ensure that this is not double counted in the sentencing exercise.

128. I accept that there were a significant number of individual qualifying offences committed against PF, acknowledging that their individual objective seriousness varies. However, I am only concerned with establishing the overall objective seriousness of the s 66EA offence, and while the objective seriousness of the qualifying offences is relevant, I am not required to make individual assessments of their objective seriousness.

129. It is submitted by the Crown that the gravity of the s. 66EA charge fits comfortably within the “higher range for offences of this type”. It is submitted on behalf of the offender in respect of this offence that it is “above the mid-range of seriousness but not in the highest range”.

130. Aggravating features under s 21A(2) in respect of the offences involving PF:

• Although PF suffered significant emotional harm as a result of these offences, the Crown does not rely upon this as an aggravating factor under s. 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. As it is presumed that victims of child sexual abuse will be likely to suffer psychological injury and emotional harm as the result of sexual offending perpetrated against them, additional regard to this category is inappropriate unless evidence is adduced that the harm exceeded that which is already presumed (R v Cunningham [2006] NSWCCA 176 at [53]; R v Tuala [2015] NSWCCA 8 at [84]). The Crown has not relied on any such evidence in these sentence proceedings.

As Johnson J (with whom Hoeben CJ at CL and Bellew J agreed) stated in SW [2013] NSWCCA 255:

“[52] Sexual abuse of children of very tender years will inevitably give rise to psychological damage emanating from (at least) the confusion in the young mind of the victim of abuse.”

See also Gavel [2014] NSWCCA 56 where the Court stated:

“[206] This Court has stated that sentencing Judges are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences and that, as a result, care needs to be taken to avoid double counting with regard to the aggravating feature of substantial emotional harm: Stewart v R [2012] NSWCCA 183 at [61].”

Here PF has provided a Victim Impact Statement where she eloquently describes the profound and deleterious effect the sexual abuse has had on her throughout her life and that is entitled to be considered. In summary, PF speaks about:

* How the offender took away her innocence.

* Her confusion and feelings of guilt about what happened and not doing something to stop it earlier.

* How the abuse has negatively impacted her relationships with people and ability to cope and deal with problems.

* How it impacted her school life, employment and ability to work full-time.

* Her struggles with daily activities and reduced ability to function with everyday tasks.

* How it changed her perspective on her life, goals and dreams.

* Her mental health struggles during and after the abuse including self-harm and issues with suicidality, which she continues to experience.

* The emotional trauma which she experiences.

* While the offender is in gaol, PF is “in jail in my own mind trying to deal and learn… how to grow and move forward with my life with this experience I never should have dealt with”.

*While there was a series of criminal acts involving PF, the Crown does not rely on this as an aggravating feature under s. 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 because this is an inherent element of the offence charged.

131. I accept that the Crown submissions in regard to the statutory aggravating features not applying in this matter are correct.

132. I accept that the appropriate finding as to objective seriousness, considering the number and nature of the underlying offences, the age differential and the period of time over which they were committed, is that the offence must fall comfortably within the higher range of objective seriousness for offences contrary to s. 66EA.

Application of the above principles to the offence involving JF

133. The offender has pleaded guilty to four offences of indecent assault < 16 years contrary to s. 61M(2) Crimes Act 1900 being sequences 3 and sequences 37 to 39 inclusive involving JF. He asks that a further offence of indecent assault < 16 years contrary to s. 61M(2) Crimes Act 1900, being sequence 35 (also involving JF), on a Form 1 document, be taken into account when sentencing the offender on sequence 37.

134. The offences against JF were representative in nature in that they were part of a course of conduct by the offender over a period of 5 years from when she was 9 (on 13 October 2012) to when she turned 14 (on 13 October 2017): Agreed Facts [46], [51], [55] and [56].

135. Whilst the offences relating to JF were part of a course of conduct, the offender cannot be sentenced on the basis of any uncharged acts. Similarly, the uncharged acts cannot increase the objective seriousness of the charged offences. However, the fact the offences were not isolated is relevant to the question of the extent to which leniency should be afforded to the offender: see Dousha v R [2008] NSWCCA 263 at [27]. The offender is not entitled to the leniency which might be extended for an isolated instance of misconduct as distinct from repeated and discrete misconduct, which is the case here.

136. Like PF, the offender stopped offending against JF when she started dating: Agreed Facts at [56].

137. In relation to the objective seriousness of sequences 3, 39, 38, 37 and the Form 1 matter (sequence 35), there was a significant age disparity between JF and the offender. The disparity of age was about 34 years.

138. In relation to sequence 3:

• Sequence 3 occurred when JF was 10 or 11 years old: Agreed Facts at [47]. She was significantly under the 16-year maximum age threshold prescribed by the charge.

• The offence occurred when JF was visiting a relative and got into bed with the offender while everyone else at the house was sleeping: Agreed Facts at [48]. It was opportunistic rather than planned.

• After JF got into bed with the offender, he took advantage of the situation and JF, placing his hands inside her pants and touched her on her genitals: Agreed Facts at [48]. The touching was skin to skin direct genital contact.

• Whilst there is no evidence as to the precise duration of the offence the contact was not short or fleeting. Rather, it involved touching of the genitalia multiple times. In between contacts, the offender would place his hand into his mouth then back on her genitals and continue rubbing: Agreed Facts at [48]. These are matters relevant to the assessment of objective seriousness and which elevate it.

• Having regard to the character of the assault as described above, the physical contact involved was significant.

• The offending was not accompanied by threats or physical violence. This is less relevant given the position of authority occupied by the offender relative to JF. In addition, whilst the presence of such conduct would elevate the seriousness of the offence, the absence of it is not a matter of mitigation. It does not make what has been done by an offender less serious because it could have been worse: Saddler v R (2009) 194 A Crim R 452 at [3] quoted in Bravo v R [2015] NSWCCA 302.

• The offender was JF’s stepfather. By virtue of that relationship, he occupied a position of trust relative to JF. She was also under his direct care and supervision at the time and more generally. These are not elements of the offence but do amount to an aggravating factor under s. 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

139. Having regard to the above matters, excluding the statutory aggravating factor referred to, sequence 3 falls towards the higher end of the range of objective seriousness for offences of this type.

140. In relation to sequence 39:

• Sequence 39 occurred when JF was in primary school: Agreed Facts at [49]. Her precise age at the relevant time is not established by the evidence. The offence is particularised as having occurred between 31 October 2012 and 31 December 2015 when JF was 9 to 12 years of age. Even allowing for her being 12 years old, she was well under the 16-year maximum chronological age threshold for the charge, being closer to 10 than 16 years of age.

• The offence occurred in the lounge room in the sanctity of the family home while others were at the home: Agreed Facts at [49]. This is an aggravating factor under s. 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

• The fact there were others at home at the relevant time is indicative that there was at least some risk of detection, which arose from the possibility that someone might walk in. The existence of that risk did not deter the offender from his offending. As such, there was an element of brazenness in what he did.

• The offender and JF were seated together on a lounge with a blanket covering them. The offender placed his hand under JF’s pants and rubbed her clitoris: Agreed Facts at [49]. There is no evidence that the offence itself was planned. The contact was skin to skin direct genital contact.

• There is no evidence as to the duration of contact on this occasion, however, the character of the assault, the physical contact involved, and the degree of violation was clearly significant. The short duration of a child sexual assault offence does not necessarily reduce the objective seriousness of the offence. Most offences of this type will not be prolonged as the offender will want to avoid detection and/or apprehension: see R v AA [2017] NSWCCA 84 at [56] citing R v Daley [2010] NSWCCA 223 at [48] in the context of sexual assault offences but the same rationale is apposite here, particularly when there were others within the vicinity in the home.

• Like sequence 3 above, the offending was not accompanied by threats or physical violence, although this is not mitigating for the reasons identified at [56(f)] above.

• Like sequence 3 above, the offending was aggravated under s. 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 by there being a breach of trust/authority which is not an element of the offence charged.

141. Having regard to the above matters, excluding the statutory aggravating factor referred to, sequence 39 falls towards the higher end of the range of objective seriousness for offences of this type, and marginally below sequence 3.

142. In relation to sequence 38:

• Sequence 38 also occurred when JF was in Primary School: Agreed Facts at [50]. The same dates as sequence 39 are particularised. Therefore, the offence occurred when JF was 9 to 12 years of age. Again, she was well under the 16-year maximum chronological age threshold for the charge being closer to 10 than 16 years of age.

• This offence occurred when JF was at home alone with the offender: Agreed Facts at [50]. The fact that the offence occurred at the home of the victim is an aggravating factor under s. 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

• The offender approached JF when he was in the loungeroom. He produced a vibrator and placed it on her vagina on the outside of her clothing: Agreed Facts at [50]. The production and use of the vibrator in the context of the offences is indicative of some level of deliberation and premeditation, but there is otherwise no evidence of any significant planning. The touching was not direct and did not involve skin to skin touching.

• There is no evidence as to the duration of contact, but this would not ordinarily reduce the objective seriousness of the offence for the reasons noted at [85(e)].

• Having regard to the character of the assault, which involved the use of a sex toy, the physical contact involved was by no means insignificant.

• Like sequence 3 and 39 above, the offending was not accompanied by threats or physical violence although this is not mitigating for the reasons indicated at [56(f)].

• Like sequence 3 and 39 above, the offending was aggravated under s. 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 by there being a breach of trust/authority which is not an element of the offence charged for this incident.

143. Having regard to the above matters, excluding the statutory aggravating factor referred to, sequence 38 falls at or towards the mid-range of the range of objective seriousness for offences of this type.

144. In relation to sequence 37:

• Sequence 37 occurred one afternoon when JF was in Year 7 at High School. The dates are particularised as being between 31 October 2012 and 12 October 2017 when JF was aged 9 to 13 years of age. It is understood that JF was enrolled in Year 7 in 2016. She turned 13 on [suppressed] 2016. She was still well under the 16-year age threshold for the offence.

• This offence occurred when JF was at home with the offender: Agreed Facts at [53]. The fact that the offence occurred at the home of the victim is an aggravating factor under s. 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

• The offence occurred when the offender was giving JF a massage while she was covered in a towel, lying naked on a mattress in the offender’s bedroom. JF saw the offender masturbating while rubbing her legs. She attempted to resist by trying to push the offender away, but he ejaculated on her leg: Agreed Facts at [53].

• There is no evidence that the offence was planned, although it is submitted the offender took advantage of the situation created, which I accept.

• Whilst there is no evidence as to the precise duration of the offence, the act of masturbation continued until the offender ejaculated. As such, it is reasonable to infer that it was not likely to have been short or fleeting. Regardless of the precise duration, the matters addressed at [58(e)] above apply.

• The contact was skin to skin, but on this occasion, there was no contact made by the offender with JF’s genitals. Nevertheless, the character of the assault and context in which it happened is both concerning and disturbing.

• Like sequence 3, 39 and 38 above, the offending was not accompanied by threats or physical violence, although this is not mitigating for the reasons indicated at [56(f)].

• Like sequence 3, 39 and 38 above, the offending was aggravated under s. 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 by there being a breach of trust/authority which is not an element of the offence charged in respect of this incident.

145. Having regard to the above matters, sequence 37 is towards the mid-range of objective seriousness for offences of this type.

146. In relation to sequence 35 (A Form 1 matter attaching to sequence 37 above):

• Sequence 35 occurred one afternoon when JF was in High School: Agreed Facts at [51]. The same dates as sequence 37 are particularised, so the offence occurred when JF was 12 or 13 years of age. This was when JF was in Year 7 or Year 8 at High School.

• The offence occurred in the sanctity of the family home when the offender was massaging JF while she was lying on a mattress in the loungeroom. It involved identical conduct to sequence 37 albeit it occurred in a different area of the house and on a separate occasion.

• There were no threats or coercion but there was a breach of trust/authority.

147. The objective criminality of the Form 1 offence is not minor and must result in some upward pressure on the sentence for sequence 37 referred to above.

148. Aggravating features under s. 21A(2) in relation to the offences involving JF:

JF has not provided a Victim Impact Statement to the Court. However, the Court is entitled to have regard to the fact that all offences such as those involving JF will have adverse psychological effects upon victims. See SW [2013] NSWCCA 255 and Gavel [2014] NSWCCA 56 referred to above. The Crown does not rely on any injury, emotional harm, loss or damage caused by the offence as being an aggravating feature under s. 21A(2)(g) in relation to the offences involving JF.

149. I accept that there is no evidence of any harm to JF beyond what can be ordinarily anticipated as the inevitable consequence of such offending and that it is likely to continue for a significant period if not the remainder of her life. R v Gavel [2014] NSWCCA 56;(2014) 239 A Crim R 469 at [110]. The usual consequences are well known and specific evidence of them is not required.

150. The defence submission in respect of the objective seriousness in respect of the offences against JF do not address the individual offences but refer to all globally as being “at the mid-range of seriousness for offences of this nature or just below”

151. I do not agree with that submission and my finding in respect of the individual offences is as recorded above at [137], [139], [141] and [143].

152. I note that the fact that the offender does not have a record of previous criminal convictions, as submitted by Mr Cairns at [30] of the Defence Sentencing Submissions, is not a fact that reduces the objective seriousness of an offence.

Application of the above principles to the offences involving TF

153. The offender has pleaded guilty to three counts of indecent assault < 16 years of age contrary to s. 61M(2) Crimes Act 1900 (being sequences 26, 54 and 31 respectively) as well as two counts of aggravated (under authority) sexual intercourse with a child > 14 and < 16 years of age contrary to s. 66C(4) Crimes Act 1900 (being sequences 52 and 53 respectively).

154. He asks that two further offences namely one count of indecent assault < 16 years contrary to s. 61M(2) Crimes Act 1900 (sequence 27) and one count of aggravated (under authority) incite act of indecency contrary to s. 61O(1) Crimes Act 1900 (sequence 55) be taken into account on a Form 1 when sentencing the offender for sequence 52.

155. TF recalled the offender sexually assaulting her on approximately 5 occasions when she was 13 or 14 years of age, around the time she had her first period: Agreed Facts at [57]. Accordingly, the charges involving TF are not representative.

156. TF was the oldest of the three victims. The offending against her stopped when TF asked the offender for a game, and he told her “You know what you have to do”. She became upset and stormed away. She later told the offender her mother and biological father would not like what he was doing: Agreed Facts at [64]. At this point, the offender told TF she wasn’t allowed to tell anyone about what had happened, and it was “their secret” and that any disclosure would essentially hurt her mother: Agreed Facts at [65].

157. In relation to the objective seriousness of sequences 26, 31, 52, 53, 54 and the Form 1 matters (sequences 27 and 55), there was a significant age disparity between TF and the offender of 31 years.

158. In relation to sequences 26 and 54, which are charges of indecent assault < 16 years which occurred during the same incident:

• Sequence 26 and 54 relate to the first incident and the charges are particularised as having occurred between 1 February 2012 and 21 February 2015 when TF was between 11 to 14 years of age. The offender will be sentenced on the basis that this incident occurred when she was 13 to 14 years of age consistent with her evidence: Agreed Facts at [57]. Whist under the 16-year age threshold required for the charge, she was approaching the upper end of that limit.

• The offences occurred when TF was at home in the offender’s bed watching a movie. She fell asleep and awoke to the offender ticking her stomach and then placing his hands inside her pants and touching her genitals (sequence 26). The offender then placed TF’s hand on his penis (sequence 54). While this was occurring, TF pretended to be asleep: Agreed Facts at [58]. The touching of the genitals involved skin to skin direct contact.

• The offending appears to have been opportunistic rather than planned but was clearly predatory.

• There is no evidence as to the duration of the offence. However, this is not a matter which would ordinarily reduce the objective seriousness of the offence nor is it necessarily mitigating for the reasons indicated at [58(e)] above.

• Having regard to the character of the assault, the physical contact involved was significant.

• The offending was not accompanied by threats or physical violence, but this is of lesser significance having regard to the position of authority occupied by the offender relative to TF. For the reasons referred to at [56(f)] above, this is not a matter of mitigation.

• The fact that the offence occurred at the home of the victim is a statutory aggravating factor under s. 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

• The offender was TF’s stepfather. By virtue of that relationship, he occupied a position of trust relative to TF. She was under his direct care and supervision at the time and more generally. These are not elements of the offences charged in relation to this incident and therefore do amount to a statutory aggravating factor under s. 21A(2)(k) Crimes (Sentencing Procedure) Act 1999.

159. Having regard to the above matters, the objective seriousness for sequence 26 falls towards the mid-range of seriousness for offences of this type and the objective seriousness of sequence 54 falls within the same range but is objectively less serious than sequence 26 noting that the evidence does not establish whether the touching was on the inside or outside of the clothing.

160. In relation to sequence 27 (indecent assault < 16 years which has been placed on a Form 1 attaching to sequence 52 below):

• Sequence 27 occurred approximately one week after the above matters: Agreed Facts at [59]. The same dates are particularised. Again, the offender will be sentenced on the basis that TF was 13 to 14 years of age.

• The offence occurred in the family home when TF was in her sister’s bedroom. The offender approached TF and placed his hands inside her pants and rubbed her genitals. He grabbed TF’s hand and placed it on his penis and said, “Do you like it?” Agreed Facts at [59].

• There is no evidence as to the duration of contact, but the physical contact involved, which was skin to skin direct genital contact, was significant. As indicated at [58(e)] this would not ordinarily mitigate the offence for the reasons indicated.

• The offence appears largely opportunistic rather than planned.

• There was no threat or coercion but there was a breach of trust/authority. Again, it is submitted that this does not mitigate the offence or provide any significant assistance to the offender for the reasons identified at [56(f)].

161. In relation to sequence 52 (substantive offence of aggravated (authority) sexual intercourse with a child = > 14 and < 16 years - sequence 27 above and sequence 55 below are on a Form 1 attaching to this charge) and sequence 53 aggravated (authority) sexual intercourse with a child = > 14 and < 16 years) which occurred during the same incident:

• Sequence 52 is particularised as occurring between 1 December 2012 and 21 February 2015 when TF was 12 to 14 years of age. The charge is one of aggravated (under authority) sexual intercourse with a child = > 14 years and < 16 years contrary to s. 66C(4). Section 80AF applies. In those circumstances, the offender will be sentenced on the basis that TF was 14 years of age.

• The offence occurred during a family trip to Burrendong Dam while they were staying in the family cabin. The offender was seated beside TF on the couch, he placed his hand inside her pants and digitally penetrated her genitals. This persisted over an unknown period of time when others were around. Whenever anyone approached, he would remove his finger temporarily: Agreed Facts at [60].

• Whilst there is no evidence as to the duration of this offence, I accept that it was not fleeting or of short duration given the description provided by TF. Furthermore, the presence of others coming and going did not deter the offender from his offending. The commission of the offence in the circumstances described was calculated and brazen.

• There is nothing to suggest that this offence involved planning.

• The offending was not accompanied by threats or violence. For the reasons as indicated at [56(f)] this is not mitigating.

• Sequence 53 is an identical charge which occurred as part of the same incident, immediately after sequence 52 (above).

• The offender got TF to go into the bedroom in the cabin. The means by which he achieved this are not identified, however, it is indicative of there being at least some premeditation. Once inside, the offender placed TM on the bed, moved her swimmers to the side and performed cunnilingus on her. His penis was exposed and erect at the time: Agreed Facts at [61].

• There is no evidence as to the duration of the offence. However, the offender only desisted when he was interrupted by someone entering the cabin: Agreed Facts at [61]. Accordingly, it does not reduce the objective seriousness of the offence, nor does it provide any mitigation to the offender.

• Again, the offence was not accompanied by any threats or physical violence. This is less relevant for the reasons expressed above at [56(f)].

• Breach of authority is an element of both offences, and accordingly, it is not an aggravating feature of these offences, and it will not be double counted.

162. Having regard to the above matters, the objective seriousness for sequence 52 falls towards or within the mid-range of seriousness for offences of this type. The objective seriousness of sequence 53 falls within a similar range but is objectively less serious than sequence 52 having regard to the nature of the act involved.

163. In relation to sequence 55 (A Form 1 matter attaching to sequence 52 above):

• Sequence 55 is particularised as occurring between 1 February 2012 and 21 February 2015 when TF was between 11 to 14 years of age. The offender will be sentenced on the basis that this incident occurred when she was 13 to 14 years of age consistent with her evidence: Agreed Facts at [57]. Whist under the 16-year maximum age threshold required for the charge, she was approaching the upper end of that limit.

• This offence occurred when TF was at home with the offender. She asked him if he could purchase a game for her and he agreed on condition that she kiss him. She kissed him on the cheek then on the lips. The offender then requested a kiss with tongue which she refused stating that it was ‘gross’: Agreed Facts at [62].

• The offence occurred in the sanctity of the home, was manipulative but opportunistic and did not involve threats or violence.

• It is an element of the offence that the offender occupied a position of authority and so this cannot be double counted.

164. The Form 1 matters, being sequences 27 and sequence 55, must place some upward pressure on the sentence for sequence 52 referred to above. Sequences 27 and 55 involve sexual misconduct on two separate occasions. In addition, the criminality for sequence 27 was not minor.

165. In relation to sequence 31:

• Sequence 31 occurred when TF was between 13 to 15 years of age: Agreed Facts at [63]. She was closer to the upper age threshold for the charge.

• The offence occurred at the home when the offender was massaging TF’s leg. He caused her underwear to move to the side and placed one of his fingers on her genitals for a number of minutes: Agreed Facts at [63].

• The contact was not of short duration. It was minutes not seconds. It involved skin to skin direct contact with her genitals. In those circumstances, the physical contact was significant.

• The offence was opportunistic rather than planned.

• The offending was not accompanied by threats or physical violence which is not mitigating for the reasons indicated at [56(f)].

• The fact that the offence occurred at the home of the victim is an aggravating factor under s. 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

• It is not an element of the offence that TF was under the authority of the offender. Accordingly, the fact that the offence involved a breach of trust/authority is an aggravating factor under s. 21A(2)(k) Crimes (Sentencing Procedure) Act 1900

166. Having regard to the above matters sequence 31 falls within or towards the mid-range of objective seriousness for offences of this type.

167. Aggravating features under s. 21A(2) in relation to the offences involving TF:

• TF has not provided a Victim Impact Statement to the Court. However, the Court is entitled to have regard to the fact that all offences such as those involving TF will have adverse psychological effects upon victims. See SW [2013] NSWCCA 255 and Gavel [2014] NSWCCA 56 referred to above. The Crown does not rely on the injury, emotional harm, loss or damaged caused by the offence as being an aggravating feature under s. 21A(2)(g) in relation to the offences involving TF.

168. The defence submission in respect of the objective seriousness in respect of the offences against TF do not address the individual offences but refer to all globally as being “above the mid-range of seriousness for offences of this nature.”

169. I have already expressed above my finding as to the objective seriousness of the individual offences relating to TF which are consistent with the Crown submissions and more favourable to the offender than the submission made on his behalf.

General Principles – Public Justice Offences

170. Sequence 43 is a charge of perverting the course of justice contrary to s. 319 Crimes Act 1900. Perverting the course of justice is a public justice offence. Such offences are singled out as offences of the most serious kind: Taylor v R [2007] NSWCCA 99 at [23]. They strike at the very heart of the justice system and must be severely punished whenever detected: Marinellis v R [2006] NSWCCA 307 at [10].

171. In Harrington v R [2005] NSWCCA 449 at [47], the Court endorsed the statement of McClellan J (as he then was) in the decision of R v Giang [2001] NSWCCA 276 at [21] where His Honour stated in relation to offences of perverting the course of justice:

“In every case the court has been concerned to emphasise the need to impose a sentence which not only punishes the offender but will deter others from a similar course of action”.

172. The fact than an attempt to pervert the course of justice did not succeed or was doomed to failure is of far less significance than in the case of sentencing for an attempt to commit some other substantive offence: Taylor v R [2007] NSWCCA 99 at [25]; Marinellis v R [2006] NSWCCA 307 at [8] and R v Taouk (1992) 65 A Crim R 387 at 392. It is therefore an error to take into account the fact that the acts were unsuccessful when assessing the objective seriousness of such offences: R v PFC [2011] NSWCCA 117 at [66]-[67]. It is the tendency of the conduct which is decisive, and it is irrelevant whether the conduct does or does not bring about a miscarriage of justice: Marinellis v R [2006] NSWCCA 307 at [8].

Application of the above principles to the pervert the course of justice offence

173. In essence, the offender had conversations with members of his family and JD, the mother of the victims, requesting them to speak to the victims and ask them to drop the charges. In relation to JD, this was requested under the pre-text that he would then be in a position to help JD out financially: Agreed Facts at [76]-[78]. The conversations occurred when the offender was in gaol and therefore were recorded.

174. In this case, the pervert the course of justice falls towards the higher end of the low range of objective gravity for the following reasons:

• The offence was unsophisticated and easily detected.

• Unlike many of cases where this offence is charged, the offender did not hold a public office or position.

• The purpose of the requests was to try and get some or all of the charges against him withdrawn in order to get a reduced sentence and/or be freed.

• There were repeated requests involving 3 different people. He specifically requested 2 of those persons to speak to the victims to achieve this.

• The suggestion to the third person, JD, that he could help her out financially if the charges were dropped involved a degree of manipulation by the offender during what must have been an incredibly difficult, confusing and upsetting period for JD.

• The pervert the course of justice offence was committed in breach of an ADVO which is a significant source of aggravation: Kennedy v R (2008) 181 A Crim R at [8]. The breach of the ADVO is the s. 166 matter which is to be dealt with at the end of the sentence. Offences committed in breach of an ADVO are not offences committed in breach of conditional liberty simpliciter, they breach a form of conditional liberty designed to protect the same victim from further attacks by the offender: Cherry v R [2017] NSWCCA 150 at [80].

Defence Submissions on the Objective Seriousness of the Pervert the Course of Justice Offence

175. The defence written submissions do not contain any reference to this charge and there was scant reference to it in oral submissions other than that they were calls “made in desperation” and “not accompanied by threat” and that the court should find that it falls in the lower rage of objective seriousness for such an offence.

176. I accept, for the reasons expressed by the Crown at [85], that the offence can be regarded as falling “towards the higher end of the low range of objective gravity” despite the fact that it involved multiple efforts to multiple persons to assist the offender to achieve a result favourable to him as well as relying on manipulation by a suggested financial benefit to an intermediary.

177. In addition, the offence was committed while subject to conditional liberty, the offender being subject to an Apprehended Violence Order (S166 matter) designed to protect the victims from the offender. Any breech of any form of conditional liberty is a matter of aggravation. Kennedy v R (2008) 181 A Crim R 85 at [8]; Cherry v R [2017] NSWCCA 150 at [80]. (s21A(2) (j))

Subjective Matters

178. The offender did not give evidence on sentence making it difficult for the court to assess whether he is genuinely remorseful or contrite in respect of the offending.

179. There is little material before the court in respect of subjective matters. What is available is limited to:

• Summary of the ERISP as referred to in the Agreed Facts.

• NSW Criminal History.

• NSW Dept of Corrective Services Conviction, Sentence and Appeals Report, dated 18 August 2022.

• Psychological Report of Ms Diana Grujoska of Duffy Robilliard Psychologists dated 12 July 2022.

180. Subjective matters are drawn from that limited material.

181. The offender is now 54 years of age and was born in Parkes NSW. His parents separated when he was 6 or 7 years of age, and he was raised by his mother on the Central Coast. He had a younger sister who died at 5 years of age from Leukemia and one older sister who he now refers to as his “rock”. He also has a stepsister, half-sister and half-brother.

182. He reports as a child being physically abused by his mother and stepmother but not in any gross fashion. His father died 7 years ago. He reports little love or support as a child.

183. At about 11 or 12 years of age he was sexually assaulted by a nanny forcing intercourse on two occasions.

184. As his mother’s relationships changed from time to time he attended a number of different schools in Middleton, the Entrance, Berowra and Parkes. In high school he attended Sydney from years 7 to 9 where he was regularly physically reprimanded with the cane and bullied because of his small size. He struggled with learning but has no problem reading and writing’

185. He completed a diesel mechanics course at TAFE following school and drove trucks for 22 years. He worked for his father driving trucks and eventually took over the business for a period after his father’s death.

186. He first married in 1992 due to his then partner falling pregnant and they had three children who he remains close to and regards as supportive.

187. The offender has no particularly significant health issues, physical or mental. He uses a sleep apnoea machine when sleeping.

188. He has no drug or alcohol issues.

189. The offender has no antecedent criminal history and has not since being placed in custody on 6 May 2021 breeched any Corrective Services regulations. s. 21A(3)(e) Crimes (Sentencing Procedure) Act 1999.

190. He was exposed to heterosexual pornography tapes at about 11 year of age and around that time sexually assaulted by his nanny and regularly and frequently masturbated from that time. He informed the psychologist that he had never watched pornography involving children and was not sexually attracted to children.

191. That he was not sexually attracted to children cannot be accepted in circumstances where he concurrently committed sex offences against each of his three stepchildren over a period of approximately eight and a half years commencing when PF was approximately 7 years of age and continuing until she was approximately 16 years of age, JF commencing at approximately 9 years of age and continuing until she was approximately 13 years of age and commencing with TF when she was approximately 12 years of age and continuing until she was approximately fourteen years of age. I do not accept that his serious concurrent and continuing offending could have occurred in the absence of a significant sexual attraction to female children. The psychologist, Ms Grujoska, is simply repeating a self-serving statement made by the offender without endeavouring to evaluate it in any way. Also, contrary his credibility and to accepting this statement is the fact that he informed the psychologist that he thought conduct of this nature was “normal at the time” yet engaged in threats and requests to achieve the victim’s silence.

192. The offender expressed to the psychologist that he was suffering from anxiety, depression, and paranoia but these appear to be the entirely normal result of the circumstances that he now finds himself in. That is, in custody awaiting sentence in respect of a significant raft of very serious offences in respect of which he must be anticipating the imposition of a substantial sentence of imprisonment.

“Mr Dunn appears to currently be experiencing symptoms relating to mood and anxiety which is likely triggered by his difficulties with adjusting to the present circumstance of being arrested and the Court process.”

193. Ms Grujoska opined that the offender would require extensive counselling and intervention to treat his long-standing childhood trauma from the sexual abuse he suffered as a child and that on Static-99R he is a “below average risk of reoffending” and on STABLE-2007 he has “moderate needs” for treatment.

Mitigating Factors

194. In relation to mitigating factors I note the following:

• The offender does not have any record of previous convictions: s. 21A(3)(e) Crimes (Sentencing Procedure) Act 1999

• The offender was a person of good character: s. 21A(3)(f) Crimes (Sentencing Procedure) Act 1999.

The weight to be given to good character may vary according to all of the circumstances including the nature of the offence: Ryan v R (2001) 118 A Crim R 538 at [25], [143].

In this case, the offender is charged with serious sexual offending against three victims concurrently. Given the nature of the offences only limited weight can be given to the offender’s prior good character: Ryan v R (2001) 118 A Crim R 538 at [34] cited in Athos v R [2013] NSWCCA 205 at [36]; R v TWP [2006] NSWCCA 141 at [16] – [17]. Offences of this type are often committed by persons of prior good character and the need for general deterrence is paramount to the sentencing exercise. In this case, the offending was not isolated but extended over a total period of approximately 8 and a half years. In those circumstances, the weight to be attributed to prior good character must be significantly reduced.

• The offender’s risk of re-offending and prospects of rehabilitation: s. 21A(3)(g)-(h) Crimes (Sentencing Procedure) Act 1999:

The offender has the onus of establishing on the balance of probabilities whether he had good prospects of rehabilitation as a mitigating factor.

The offender was interviewed by Diana Grujoska, psychologist over a period of about 2.5 hours by AVL whist in custody. The assessment comprised a semi-structured clinical interview in which personal and family background information was gathered. Two psychometric measures were also administered including a Static-99 and STABLE-2007 (Risk Assessment).

The offender is now 53 years old. He appears to have the continued support of some members of his family, in particular his older sister who he describes as his “rock”: Psychological report at [4]. He doesn’t have any friends and prior to his incarceration, he found it difficult to maintain social relationships due to his shift work: Psychological report at [9].

The offender reported that he first learned of sex when he was 11 years old after finding his mother’s partners pornography. Around the same time, he started masturbating. At the time he did this daily while watching pornography stating that “I couldn’t go a day without it”: Psychological report at [15].

The offender reported that his first sexual encounter occurred when he was sexually assaulted by his nanny when he was 11 or 12 years of age. He was sexually assaulted by the nanny twice: Psychological report at [3], [15].

Despite the nature of the offences, the number of offences, the number of victims and the protracted period of offending, the offender denies having a sexual interest in children or adolescents: Psychological report at [15]. This denial flies in the face of a strong body of evidence which points firmly to the contrary. The offender’s continued denial that he has a sexual interest in children is indicative of a serious lack of insight into the nature, extent of or reasons for his offending which is highly concerning.

Ms Grujoska carried out a Static-99R risk assessment on the offender to determine his likelihood of re-offending: Psychological report at [29]. She reported that the offender received a score of 1 which places him at Level II – Below Average Risk for being charged or convicted of another sexual offence: Psychological report at [31].

At paragraph [32], Ms Grujoska reports:

“Although Mr Dunn has been charged with sexual offences, there have been no further charges of this nature. In addition, research indicates that almost all crimes decrease as a person ages, with sexual offending not appearing to be an exception”.

However, the offending involving PF commenced at 7 years of age and did not stop until she was 16-17 years of age. The offending continued after she asked him to stop at 15-16 years of age and he said he would but continued. He was also concurrently offending against JF and TF. The offender is not now of such an advanced age that would necessarily reduce his risk of re-offending but relevant to this factor is the offender’s prospective age at the time of release considering that a sentence of significant duration must inevitably be imposed.

The offender scored 11 out of a possible 24 points on the STABLE-2007 risk assessment. This was conducted to determine additional risk factors to recidivism and assess treatment needs. The offender’s score placed him as “moderate needs” for treatment. He had dynamic risk factors relating to general social rejection, impulsivity, poor problem-solving skills, sex drive/sex pre-occupation, sex as coping, and deviant sexual interest which would need to be deliberately targeted through intervention to decrease the risk of re-offending: Psychological report at [33].

While the offender had a low score for re-offending on the STATIC-99R, he displayed sexual offending over several years and was identified as having a number of dynamic risk factors which required treatment. The dynamic risk factors identified also bear upon the level of risk he poses and indicate a need to be cautious about accepting the Static-99R risk assessment results.

Ultimately, the offender’s risk of re-offending is inextricably linked with his willingness to participate and engage in appropriate intervention programs. Whilst he has expressed some willingness to do so at [20] and [41], his willingness is yet to be tested and he continues to demonstrate a lack of insight and tendency to minimise his offending as evidenced by aspects of the psychological report including:

• He feels that his shift work contributed to his offending and that he was “seizing an opportunity that was available to him”.

• He felt “brain dead” and didn’t think much about what he was going “until the last 7 years” (i.e., around 2015) when he began to experience remorse and regret and tried to make it up to the victims. This is despite the evidence that he continued to offend against PF after 2015.

• That he began to engage in the offending after one of the victims touched his penis when she was a young child to justify his actions. This is akin to victim blaming and demonstrates that the offender has not taken responsibility for what he has done.

The offender also downplayed his level of involvement in the offences and attributed blame to the victims in his ERISP. For example, by only admitting part of the conduct at Burrendong Dam involving TF (the cunnilingus) and suggesting that TF was the instigator of that activity, stating “… she went to his bedroom and laid down with her legs open and said, ‘Come here Woody’ … he really thought she wanted sex.” He significantly downplayed the offending against PF and engaged in victim blaming; sexual interaction “didn’t happen much”; he could only remember 2 or 3 times in the computer room and one in the toilet, although he never wore a condom he never ejaculated inside her; on the first occasion of penile/vaginal intercourse he “just put the tip in”; “she’s the one that started it all” by touching his penis; she “pointed her ass in my face and went to her bed with no pants” in respect of cunnilingus on the Newcastle trip. PF was under 10 years of age when according to the offender she “instigated it” and the sexual conduct commenced.

In the call from custody to his son Matthew, the offender also asserted that “She instigated it”.

In the circumstances the question of the prospects of rehabilitation and the risk of re-offending must be approached with considerable caution. Although it cannot be said in the circumstances of this matter (Number and type of offences, number of victims and period over which the offending occurred.) that there is a low risk of reoffending that is not a finding that reoffending is likely. The risk of reoffending may be significantly reduced by the aging process and the prospective date on which the offender may be released on parole. “In addition, research indicates that almost all crimes decrease as a person ages, with sexual offending not appearing to be an exception.” Ms Grujoska at [32] citing Phenix, A., Helmus, L.M, & Hanson, R. K. (October 19, 2016) Static-99R & Static-2002R Evaluators’ Workbook.

• Remorse: s. 21A(3)(i) Crimes (Sentencing Procedure) Act 1999.

The conditions in s. 21A(3)(i) must be satisfied before remorse can be taken into account in mitigation. This is for the offender to establish on the balance or probabilities: Naveed v R [2019] NSWCCA 149 at [54]. Remorse means regret for the wrongdoing the offender’s actions caused and, as a feature of post offence conduct, may be relied upon to mitigate penalty: Alvares & Farache [2011] NSWCCA 33 at [44].

There is no requirement that the offender give evidence in the proceedings before remorse can be taken into account: R v Butters [2010] NSWCCA 1 [16]-[17]. However, if the offender does not give evidence the court may give less weight to an assertion of remorse in reports: R v Pfitzner [2010] NSWCCA 314 at [33].

Remorse is not demonstrated when an offender fails to provide evidence that he accepts responsibility for his actions: Davis [2018] NSWCCA 67 at [32].

The offender has pleaded guilty to the charges. A plea of guilty in and of itself does not necessarily demonstrate or indicate remorse: AB v R [2014] NSWCCA 31. The extent to which a plea evidences remorse and contrition so as to attract leniency, depends to a large extent upon whether the plea resulted from a recognition of the inevitable: Alvares & Farache 2011] NSWCCA 33 at [46].

The Crown case in relation to the charges was strong. There was clear evidence of opportunity and admissions made by the offender to some of the charged conduct as well as general admissions in the ERISP together with the post offence conduct (namely, the gaol calls) which was consistent with consciousness of guilt. The Crown Case was further strengthened by the availability of tendency reasoning.

There is limited evidence of remorse in the psychological report:

“The offender reported that he “felt it was normal at the time though can now see that it is wrong” and said, “ I’m disgusted with myself”: Psychological report at [17]

No further detail or explanation has been provided.

It does not appear that the offender has in fact accepted responsibility for his wrongdoing or acknowledged the consequences his acts have caused to the victims given his lack of insight and tendency to minimise his offending which appears to have persisted since his arrest.

• As indicated above, the offender is entitled to a benefit for his early plea of 25% in respect of each offence: s. 21A(3)(k) and s. 25(d)(2) Crimes (Sentencing Procedure) Act 1999.

Moral Culpability

195. As indicated above, the offender reported that he had been sexually abused as a child. If it is established that a child sexual assault offender was sexually abused as a child, and that the history of abuse contributed to the offender’s own criminality, that is a matter which can be taken into account as a factor in mitigation of penalty: R v AGR (unrep, 24/7/98, NSWCCA) at 13. However, while it is appropriate to take such a circumstance into account, it cannot be regarded as an excuse, notwithstanding the fact that such a link may aid in explaining why the offender committed the offence: R v Lett (unrep, 27/3/95, NSWCCA) per Hunt CJ at CL at [5]. This is because Courts must do what they can to see that the cycle of sexual abuse is broken: R v Reynolds (unrep, 7/12/98, NSWCCA) per Hulme J.

196. The report of Ms Grujoska does not indicate that there was in fact, a causal link between the offender’s own abuse and his offending, or that his own abuse contributed to his offending in any material way. Rather, it is stated:

“It is speculative that Mr Dunn’s dependent personality style may have contributed to his need for affection or intimacy, which led to feelings of loneliness, fear of rejection from others, and preoccupation with sex. This dependent factor likely led to him feeling needy and less discrimination in his choice of partners. His own experience being a victim of abuse likely affected him and amplified feelings of distress and it is expected that this led to a depleted sense of self-worth… Therefore, with victims younger than him this would have seemed less threatening, and he would have felt more in control”: Psychological report at [35]. (Emphasis added)

197. In those circumstances, any argument that the offender’s condition has contributed to the commission of the offence in a material way would be tenuous at best. No submission to the effect that the offender has a contributing condition was made on his behalf either in the written or oral submissions and on the evidence, I am unable to find it did. Regardless, sexual abuse of him as a child is a matter which must be taken into account as part of his personal circumstances and history.

Totality

198. In cases involving multiple serious offences (and separate victims) some accumulation of sentences may be necessary in order to “strike a balance between the principle of totality and the sentences imposed for the individual counts”: R v Bavadra (2000) 115 A Crim R 152. The imposition of wholly concurrent sentences for a series of offences creates the perception that there is not much difference between the effective penalty for one or two offences and the effective penalty for six or seven offences: R v Webster [2005] NSWCCA 110 at [42].

199. The Court is required to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence, and totality. The sentence imposed must be an overall aggregate sentence that fairly and justly reflects the totality of criminality involved: Pearce v The Queen (1989) 194 CLR 610, R v Knight (2005) A Crim R 252. Relevant principles were summarised in R v XX (2009) 195 A Crim R 38 at [52] per Hall J.

200. Consistent with the approach outlined by the Court of Criminal Appeal in Cahyadi v R [2007] NSWCCA 1, the question is: can the sentence for one offence comprehend and reflect the criminality for the other offence? In this case, the answer to that question is plainly no.

201. The charges before the Court involve a course of offending by the offender over a significant period involving three separate victims and varying acts of sexual misconduct. Each of the offences, whilst at times involving similar conduct were almost all separate and discrete incidents which occurred on separate days. Accordingly, a measure of accumulation is warranted as between each victim and each of the charges.

202. The totality principle is designed to avoid a Court imposing a “crushing sentence”:

“… an extremely long sentence may be ‘crushing’ upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint.” R v MAK; R v MSK [2006] NSWCCA 381 at [17].

Special Circumstances

203. It has been submitted on behalf of the offender that the Court would find “special circumstances” justifying a reduction in the statutory relationship between the non-parole period and the balance of term and accordingly reduce the on-parole period.

204. Cited to justify such a course are:

• The offender’s age;

[Both his current age (54) and his prospective age on release are relevant.]

• The fact that this would be the offender’s first time in custody; and

[See following.]

• The fact that the offender is expected to serve his time in protective custody. [See following.]

205. Notwithstanding any features that might amount to special circumstances, the Court must ensure that the effective non-parole period adequately reflects the criminality: R v Simpson [2001] 53 NSWLR 704. The existence of factors justifying reduction of the non-parole period and capable of constituting special circumstances, do not mandate that the Sentencing Judge should make that finding: R v Cramp [2004] NSWCCA 264; Hoskins v R [2016] NSWCCA 157. Before a variation is made, the Court must be satisfied that the circumstances are sufficiently special: R v Fidow [2004] NSWCCA 172.

206. A finding of special circumstances must be purposeful to justify a longer non-parole period. The purpose must be something other than relieving the offender of the burden of serving the minimum sentence: Hoskins v R [2016] NSWCCA 157.

207. Caution must be exercised not to take the same factors into account when reducing the head sentence, allowing for a plea of guilty and allowing special circumstances as doing so may result in disproportionate weight being placed on those factors such as to lead a Court into error.

208. The following comments are relevant to the exercise of the discretion to find special circumstances:

‘A finding of special circumstances is appropriate and relevant to a decision by a sentencing judge as to whether to depart from the statutory ratio between the non-parole period and the overall sentence. The authorities are replete with findings by sentencing judges and by this Court of special circumstances. When an offender's history of offending or personal circumstances indicates that he or she would benefit from an extended period of supervision within the community a finding of special circumstances may be appropriate. For my part, as I said in R v Clark [2009] NSWCCA 49 at [12], I have considerable reservations about whether the fact that a person will be in custody for the first time is capable of constituting special circumstances: see also R v Kama [2000] NSWCCA 23; (2000) 110 A Crim 47 at [10]. The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period: R v Fidow [2004] NSWCCA 172 at [18] (Spigelman CJ). Many persons who are sentenced will receive a sentence of imprisonment for the first time. That fact alone is unlikely to justify a finding that the offender's circumstances are special.’ Collier v R [2012] NSWCCA 213

209. The Crown submission is that the offences before the Court are serious ones for which the offender is deserving of condign punishment and that to properly address the need for general deterrence, specific deterrence, denunciation, and community protection the Court would impose a “lengthy sentence of full-time custody”.

210. Inevitably and appropriately the defence submissions accepts that a sentence of full-time custody must be imposed and “… it would be inappropriate to impose wholly concurrent sentences”. At [52] and [59].

211. Neither party has sought to draw the Court’s attention to any statistics or comparative cases that might assist the process of “instinctive synthesis”. I have nonetheless examined what is available on JIRS, including drilling down to individual cases, despite the fact that it is well recognised that the statistics are a “blunt tool”.

212. As to serving any sentence in protective custody there is no evidence, although referred to in the defence submissions as an expectation that any sentence would be served in protection. This caused me to enquire during the sentence hearing as to whether the offender was being held in protection and if so, as to whether this was at his request. I do not have a transcript of the proceedings and my notes are deficient. However, my memory is that the response from Mr Cairns, barrister for the offender, was that he had been offered a choice on admission and elected for “protection”. As I understand it this means that he can elect at any time to be returned to the “general prison population”. My memory and my understanding may both be wrong. However, I am familiar with the difficulties experienced by prisoners in custody for offences of this nature and I consider it almost inevitable, whether he desired it or not, that he will serve any sentence in ‘protection” for a substantial proportion if not all of any sentence imposed. I accept, even in the absence of any relevant specific evidence as to conditions, that any period of time served in protective custody is equivalent to a longer loss of liberty under the ordinary conditions of imprisonment. AB v The Queen (1999) 198 CLR 111 per Kirby J at [105]; R v Howard [2001] NSWCCA 309; R v Rose [2004] NSWCCA 326; R v Patison (2003) 143 A Crim R 118 at [136-137].

213. I also note that the offender has been in custody during a period that COVID-19 has adversely impacted on the quality of custody and that it appears that problems for prisoners in that regard appear likely to continue for an uncertain further period and this must be taken into account in determining sentence.

SENTENCE

214. I intend to impose an aggregate sentence and accordingly must first determine and specify an indicative sentence in respect of each individual offence and an indicative non-parole period in respect of each offence in respect of which the legislation provides a standard non-parole period. A discount of 25% has been applied to each indicative sentence for the utility of the plea alone. (s. 25D(2)(a) Crimes (Sentencing Procedure) Act 1999. I have taken into account all of the matters referred to above, and that the offender’s pleas have relieved his three stepdaughters from what would have been for them a gruelling and destructive process had the matters proceeded to trial.

DD INDICATIVE SENTENCE SCHEDULE (126754, rtf)

AGGREGATE SENTENCE

215. I have taken into account the principle of totality and the extent to which the criminality of any offence overlaps with the criminality any other offence.

You are sentenced to a term of imprisonment commencing on 6 May 2021 with a non-parole period of 21 years and a balance of term of 7 years.

Accordingly, you will first be eligible for parole on completion of the non-parole period – 5 May 2042.

The balance of term of 7 years will expire on 5 May 2049.

SPECIAL CIRCUMSTANCES

216. It will be evident that I have not found special circumstances as submitted I should by Mr Cairns on behalf of the offender to assist in DD’s treatment/rehabilitation or to avoid institutionalization. I am fully aware of the discretion to do so, Callaghan v R [2006] NSWCCA 58. That I have not done so is not the result of “error or oversight” Dunn (2007) NSWCCA 312; Lyndon (2003) NSWCCA 152; Ibrahim (2005) NSWCCA 43; Wakefield (2010) NSWCCA 12 at [26].

217. The 7-year balance of term is already 4 years more than the anticipated maximum period of supervision pursuant to the regulations and provides a more than adequate period for treatment/rehabilitation and reintegration into the community. In my view any lesser sentence would fail to meet the objectives of sentencing or the seriousness of the offending.

218. You should take note that because the sentence I have imposed means that you will come within the definition of a “serious offender” in s3(1) Crimes (Administration of Sentences) Act 1999(NSW), the Parole Authority, while a parole order is in force, may extend the period of supervision by, or impose a further period of supervision of up to 3 years at a time, cl 214A(3) of the Crimes (Administration of Sentences) Regulation 2014 (NSW).

Crimes (High Risk Offenders) Act 2006

219. Mr DD, I am required to warn you that s 25C of the Crimes (High Risk Offenders) Act 2006 applies to you in respect of all sequences, with the exception of Sequences 43 and 44, as each is a Serious Sexual Offence as defined in s 4 of the Crimes (High Risk Offenders) Act of 2006. Application can be made by the State to the Supreme Court and if that Court concludes to a high degree of probability that you pose an unacceptable risk of committing another serious offence if not kept in detention or under supervision then an order can be made for your continued detention or supervision than might apply because of the aggregate sentence that I have just imposed.

220. What that means is that if you wish to be released at the earliest time possible or subject only to the period of supervision represented by the parole period I have provided, you need to ensure that you conduct yourself in prison as a model prisoner and take every opportunity available to you to receive assistance and treatment for your problems while in custody or on parole.

221. I note that since your arrest in May 2021 you have not been found in breach of prison regulations and there is no evidence you are regarded as a management problem. You have also indicated to the psychologist that you are open to accessing sex offender treatment. You need to be able to demonstrate over time that you are prepared to accept assistance and have genuinely addressed your issues.

Crimes (Domestic and Personal Violence) Act 2007

222. I direct pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 that each of the offences of which you have now been sentenced be recorded on your criminal history as a “domestic violence offence” except for Sequence 43.

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Amendments

01 March 2023 - Amended in line with NPO, and to reflect correct paragraph numbering.

Decision last updated: 01 March 2023