R v DH

[2018] NSWDC 64

District Court

New South Wales

Medium Neutral Citation:	R v DH [2018] NSWDC 64
Hearing dates:	15 February 2018
Decision date:	16 March 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Aggregate full-time custodial sentence. For orders see [78]
Catchwords:	Multiple child sexual assault offences; aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Customs Act 1901 (Cth)
Cases Cited:	Bao v R [2016] NSWCCA 16 Berryman v R [2017] NSWCCA 297 Clinton v R [2009] NSWCCA 276 JM v R [2014] NSWCCA 297 MLP v R [2006] NSWCCA 271 Muldrock v R (2011) 244 CLR 120 Pham v R [2014] NSWCCA 115 R v BJW [2000] NSWCCA 60 R v Cahyadi [2007] NSWCCA 1 R v Olbrich (1999) 199 CLR 270 R v Smith [2016] NSWCCA 75 R v Van Ryn [2016] NSWCCA 1 R v Way (2004) 60 NSWLR 168
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) DH (Offender)
Representation:	Counsel: B Queenan P Segal   Solicitors: Office of Director of Public Prosecutions Steven Young Lawyers
File Number(s):	16/57991
Publication restriction:	Non‑Publication Order for name of Complainant, or any evidence identifying her.

REMARKS ON SENTENCE

Introduction

1. On 23 August 2017, the offender entered pleas of guilty to the following counts on an Indictment:

1. Count 1 - Aggravated indecent assault on a child under 16 years of age pursuant to s 61M(2) of the Crimes Act 1900. The maximum penalty for that offence of 10 years imprisonment. There is a Standard Non‑Parole Period of 8 years imprisonment.

2. Count 4 – Aggravated sexual intercourse without consent with person under the age of 16 years pursuant to s 61J(1) of the Crimes Act 1900.The maximum penalty for that offence is 20 years imprisonment. There is a Standard Non-Parole period of 10 years imprisonment.

3. Count 8 – Aggravated sexual intercourse without consent with person under the age of 16 years pursuant to s 61J(1) of the Crimes Act 1900.The maximum penalty and the Standard Non-Parole Period are the same as in Count 4.

4. Count 9 – Sexual intercourse without consent pursuant to s 61I of the Crimes Act 1900. The maximum penalty for that offence is 14 years imprisonment. There is a Standard Non-Parole Period of 7 years imprisonment.

2. In addition, the offender has asked that the following matters on the Indictment be taken into account on a Form 1:

1. Count 3 – Aggravated indecent assault on person under 16 years pursuant to s 61M(2) of the Crimes Act 1900.

2. Count 5 – Aggravated sexual intercourse without consent on person under 16 years pursuant to s 61J(1) of the Crimes Act 1900.

3. Count 6 – Aggravated indecent assault on person under 16 years pursuant to s 61M(2) of the Crimes Act 1900.

4. Count 7 – Aggravated indecent assault on person under 16 years pursuant to s 61M(2) of the Crimes Act 1900.

3. The matters on the Form 1 are in respect of the offence in Count 8 above. The offender has acknowledged his guilt in relation to these offences.

4. The offender was committed for trial on 19 April 2016 from Taree Local Court. He was arraigned before a jury panel and pleaded not guilty to nine counts on the Indictment on 24 October 2016. That jury was discharged due to the circumstances of one of the jurors and the matter was listed for trial on 14 August 2017. On that date it was stood over to 23 August 2017. After a number of preliminary matters were dealt with, the offender entered the pleas of guilty set out above. Count 2 on the Indictment was withdrawn.

The sentence hearing

5. The sentence hearing took place at Taree District Court on 15 February 2018. The offender adhered to the pleas of guilty he had entered on 23 August 2017, and further acknowledged his guilt for the matters to be taken into account on the Form 1.

6. Exhibit A on the sentence hearing was the Crown Sentence Summary which included a Statement of Agreed Facts, which may be summarised as follows.

7. The offender commenced a relationship with the mother of the complainant in 2007. The complainant, JB, was born on 13 August 1999. There is one child of the relationship between the offender and the complainant’s mother, namely, a daughter S, born on 13 August 2008.

8. Count 1 on the Indictment involves an occasion around June 2008 when the complainant, who was 8 years of age, went to bed with her pregnant mother and the offender. She was wearing pyjamas, and was lying on one edge of the bed, with her mother in the middle, between her and the offender.

9. The complainant woke up to the offender rubbing her vagina under her clothing. At that time she was in the middle of the bed and he was laying next to her. She asked “What are you doing?”, but the offender did not respond. He continued rubbing her vagina. Feeling uncomfortable, the complainant got out of the bed and left the room. She told the offender she was going to the toilet when he asked where she was going. The complainant remained outside the bedroom and fell asleep on the lounge.

10. Count 4 involved an occasion between February and August 2010 when the complainant was 10-11 years of age. She went to bed wearing her pyjamas and believed it was a school night. She woke late into the night to find the offender kneeling down next to her bed with his hand inside her underwear and inside her vagina. His hand was moving up and down. She asked him what he was doing, to which he just smiled. She pushed him to the chest and he left the room.

11. Count 8 occurred in July 2011 at a time when the complainant’s mother had left the offender and was staying at a refuge. The complainant’s younger sister S was to have an access visit with the offender, and it was agreed that the complainant would also go. She was 11 or 12 years of age. The complainant was sleeping on a mattress in the lounge room with her sister next to her. She woke up with the offender on top of her. Her pyjama pants and underwear were down near her ankles, and her pyjama top was on. The offender’s penis was penetrating her vagina with his body moving up and down. The complainant told the offender to get off, which he did. The complainant then ran to the bathroom and had a shower. The offender tried to talk to the complainant through the bathroom door, offering to “give her $100 the next day if she didn’t say anything”. The offender told the complainant that they would both get into trouble if anyone found out.

12. From 2011 to 2015, the complainant had very little contact with the offender. Following an argument with her mother in March or April 2015, the complainant left the family home and was staying with friends. She ran into the offender in town. When he found out that she had nowhere to stay, the offender offered her a room at his place.

13. Count 9 concerned an occasion when the complainant was 16 years of age. She and the offender were at home and both had been drinking and smoking marijuana. The offender started to flirt with the complainant, which bothered her, so she went to bed. The offender continued to pester the complainant, wanting to talk to her through the bedroom door. As he reassured her that he would not do anything to her, she went back to the lounge room, where they played a Playstation game. The complainant decided to go to bed and fell asleep. Later that night, the offender came into her bedroom waking her up and said, “I was going to send a message to police if (she) didn’t do what (he) wanted”. The complainant, who was drunk, became upset and started crying. They commenced arguing and the offender became more aggressive. He knelt next to her wanting to talk to her but she would not respond. He got into the bed and took off her pants. He then got on top of her and had penile/vaginal intercourse with her. She kept saying “get off”, but he continued for another five minutes, ejaculating onto the bed. He then left the room and the complainant got up and had a shower and went to sleep on another bed in her room. The next day she left the premises and stayed thereafter with a friend. In due course, she disclosed to her friend what had happened to her from the age of 8 until recently, and that friend contacted the police, who spoke to the complainant. She provided a statement to the police in February 2016.

14. The police obtained a surveillance warrant and recorded a conversation between the complainant and the offender, lasting about an hour. In that conversation, the offender told the complainant he was in love with her, he apologised for what he had done, saying that he hated himself and that she could put him in gaol if she wanted to. He said that “she’s getting him into trouble for the past; that he regrets it and feels guilty”. He further assured her that he had “never done anything” with his daughter S, meaning anything inappropriate.

15. The offender was arrested on 22 February 2016 and refused to participate in an interview.

16. Also included in Ex A was the criminal history of the offender. Other than a number of drink driving offences and associated matters that occurred more than 15 years ago, the offender had two convictions for domestic violence related offences in 2011, for which he had been sentenced by way of a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”), to be of good behaviour for a period of 18 months.

17. Exhibit B was a Victim Impact Statement which outlines in some detail the impact on the complainant of the offender’s criminal conduct towards her over a period of many years. The Victim Impact Statement is referred to below.

18. Exhibit C was the custodial record of the offender. He was bail refused on his arrest on 22 February 2016 and was granted Supreme Court bail on 21 June 2016. He therefore spent 4 months in custody in relation to this matter.

Evidence of the offender

19. The offender gave sworn evidence in which he unreservedly expressed his remorse for his criminal conduct and expressed his apology to the complainant, her mother, and acknowledged the impact of his action on the complainant and the community.

20. His evidence was not challenged by cross-examination.

21. Tendered in the offender’s case was a report of Ms Emma Hubner, psychologist, dated 15 January 2018 (Ex 1). That report set out the family and psycho-social background of the offender. He was born on 6 November 1965 and is currently 52 years of age. He has a twin brother, and has two older siblings and one younger sibling. Under the heading “Education and Employment”, the offender described early symptoms of social and behavioural dysfunction. He felt persecuted by his teachers and was socially isolated from his peers. He refused to participate in school activities and when aged 15 years he assaulted a teacher and was suspended. He left school and proceeded to work in a number of unskilled occupations including as a labourer, courier, gardener and installing insulation. He claimed to have developed carpal tunnel syndrome at age 30 and has been unemployed since then, and in receipt of a disability pension.

22. The offender was 18 years when he married his first wife and separated when he was 22. He had several further relationships which did not last, and at age 28, met his second wife. That relationship lasted 2 years and ended abruptly after a violent altercation. Between age 30 and 38 years, he lived in a caravan on his parents’ property, and he was 41 years of age when he commenced a relationship with the complainant’s mother. She soon fell pregnant, and they moved in together. Their daughter S was born in August 2008, and they remained together until July 2011.

23. The author reported that the offender committed his first sexual offence against the complainant in June 2008, and continued to sexually offend against her for 7 years, until she was 16 years old.

24. The offender had reported blindness of his left eye as a result of a cataract, and partial deafness as a result of a perforated eardrum. Under the heading “Mental Health”, the offender reported a past history of suicidal ideation, leading to two suicide attempts, the first at age 15 and the second at age 30. He denied any history of psychiatric hospitalisation or treatment, and denied any past or current alcohol abuse. However, he had used cannabis since childhood and at the time of the offending, was smoking six cones of cannabis daily. He had never sought or received treatment for his substance abuse.

25. Psychological testing demonstrated a profile of the offender showing elevations on borderline and paranoid personality scales. His assessment included scores on a significant level on the measure of depressive, schizoid, passive aggressive and anti-social profiles. He was found to have symptoms of major depression and thought disorder.

26. Assessment for sexual recidivism demonstrated him to be a low to medium risk, however, the author noted that those results should be interpreted with caution.

27. The author recommended that the offender undergo psychiatric assessment and that he may require stabilisation on medication before offence-rehabilitation and psychotherapeutic treatment can commence. She recommended that he engage in a drug and alcohol treatment program and that he would also benefit from treatment tailored for individuals with social and behavioural dysfunction. In custody, he would be considered a low priority for sex offender programs operated by NSW Corrective Services.

The offender’s submissions

28. Learned counsel for the offender provided an outline of written submissions, which commenced by noting that the offender unreservedly had expressed his remorse for his criminality and apologises to the complainant, her mother, and all others who have been affected by his criminal conduct. He acknowledged the emotional injury that that conduct must have occasioned.

29. The offender submitted that he may properly receive leniency, first, by reason of his pleas of guilty, which would attract a 10% utilitarian discount, being a late plea before trial. Secondly, he had demonstrated his remorse and contrition, and thirdly, it saved the complainant the unpleasant task of giving evidence and being cross-examined.

30. The offender submitted that there were subjective matters to be taken into account in the sentencing process, as outlined in the report of Ms Hubner dated 15 January 2018. He had been subjected to harsh punishment as a child and had felt discriminated against and alienated.

31. The offender had difficulty in his domestic relationships. It was submitted that as he is now in his 50’s, the circumstances giving rise to this offence were unlikely to arise again in his life. He was therefore unlikely to re-offend in this way. He had been assessed as being at moderate risk of recidivism.

32. It was further submitted that the offender had lost his moral compass as a result of his abuse of marijuana. His behaviour could be viewed against a background of failed relationships and very likely a need for acceptance. He had a need for ongoing psychological counselling and other assistance to assist with his low self-esteem and drug and alcohol issues.

33. The offender’s criminal antecedents included no history of sex offending until the instant offences. It was submitted “he had drink-driving convictions and matters of low level violence until 1994. Thereafter, there was a five year hiatus until what appear to be domestic violence related matters in 2011”. The instant charge first arose in 2008. It was submitted that he has no record of serious personal violence.

34. It was submitted that the totality principle should apply to the multiple offences upon which the offender is being sentenced. Such sentence should not be a crushing one. It was submitted that he still has potential to lead an improved life after incarceration.

35. It was further submitted that a finding of special circumstances should be made, and an extended period of supervision was desirable in the community’s interest, given the psychological and sexual treatment issues raised in the psychologist’s report. Further, the offender will find life in gaol more difficult because he is vision impaired, by reason of cataracts in his left eye, leaving him partially blind. He was particularly vulnerable to any threatened assault upon him coming from his left side.

36. A further written submission was received following the sentence hearing to the effect that the pleas of guilty entered by the offender may, on the balance of probabilities, assist the complainant on the path to recovery. Namely, that it assists that the offender himself has acknowledged his guilt, relying on R v Olbrich (1999) 199 CLR 270. In her Victim Impact Statement, the complainant had stated that she was starting to seek help and was currently seeing a counsellor and waiting to be accepted to see a psychologist.

37. In oral submissions, learned counsel raised the following matters:

1. The offender was effectively functionally blind in the left eye. This was of particular concern because he had already been subject to an attack whilst on remand at Cessnock Correctional Centre, and feared further attack upon sentence. He also suffered partial deafness, however, he would not find gaol more onerous because of this deafness.

2. The offender had been arrested on 22 February 2016 and had spent exactly 4 months in custody before Supreme Court Bail was granted.

3. This would be the offender’s first sentence of imprisonment.

4. The offender’s late plea of guilty occurred through no fault of the offender. His first trial had been aborted because of a juror problem. He was therefore entitled to a discount of 10%, as the victim had been spared the rigours of cross-examination.

5. The offender had given evidence of his remorse for his criminality.

6. Subjectively, the offender was a sad individual who had led a directionless life. He had been involved in four failed relationships and now lived on a property with his twin brother and mother. The offender had been unable to work because of a diagnosis of carpal tunnel syndrome. He had a low level of literacy which meant that he was only suited to manual work. He had been in receipt of a disability pension for many years.

7. The offender had vowed never to get into another relationship. Therefore, the prospects of him re-offending were low, notwithstanding that he had been assessed as a moderate risk of recidivism.

8. The offender had suffered an extra-curial punishment by way of loss of amity with his own daughter S, who was very important to him.

9. The court would take into account the identifiable disorders that he had assessed as suffering, namely, depression and his prior suicidal ideation. This hopelessness and despair will be accentuated in gaol. He therefore needed appropriate counselling with respect to his inappropriate sexual behaviour, drug and alcohol abuse and mental health problems.

10. Finally, counsel confirmed the offender’s remorse by saying that he was instructed, as his legal representative, to say that he was sorry.

Crown submissions

38. The Crown provide a detailed and thorough written outline of submissions on sentence. They outlined well known general principles of sentencing as underlined by the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (”CSPA”). Further, it set out general principles relating to sexual offences against children, and in particular the need to send a very strong message of both general deterrence and denunciation when imposing sentences for offences of this kind. The Crown referred to a number of appellate authorities which stress the profound and deleterious effects on victims of child sexual abuse over many years, if not for the whole of their lives, and the psychological damage caused.

39. The Crown set out the following matters relevant to the objective seriousness of the offending here. The first was the maximum penalty for the relevant offences, namely, s 61M(2) offences of aggravated indecent assault, a maximum of 10 years imprisonment; s 61J offences of aggravated sexual intercourse without consent, a maximum of 20 years imprisonment; and s 61I, sexual intercourse without consent, a maximum of 14 years.

38. Also relevant were the Standard Non-Parole Periods for each of those offences, namely, 8 years, 10 years and 7 years respectively.

39. It was submitted by the Crown that the sentence must reflect the seriousness of the offending, and be proportional to the criminality involved in the offending.

40. In respect to the criminality of the offending here, it was submitted that the facts speak for themselves. The offender was in a relationship with the mother of the complainant, and the offender had commenced an inappropriate relationship with the complainant when she was 8 years old. That relationship continued throughout the childhood of the complainant (albeit with a break of some years) until October 2015, when she was 16 years old.

41. It was noted that the age of the complainant was an element of the charges for which the offender is to be sentenced. However, both s 61M(2) and 61J refer to a child under 16 years of age. The Crown submitted that the younger the child the more defenceless and vulnerable, relying MLP v R [2006] NSWCCA 271, where Kirby JA stated at [22]:

“However, the entire class of children under the age of 10 years is vulnerable.”

44. The Crown submitted the following aggravating features applied pursuant to s 21A(2) of the CSPA, namely,

1. S 21A(2)(eb) the offences occurred in the home of the complainant.

2. S 21A(2)(l) the complainant was 8 years old and the step-daughter of the offender, she was therefore a vulnerable victim.

3. S 21A(2)(k) the offences occurred at a time when the offender was the step-father of the complainant and therefore in a position of trust.

45. Pursuant to S 21A(3)(k) the Crown conceded that a mitigating factor to be taken into account was the offender’s plea of guilty. The Crown conceded the utilitarian discount of 10% for the late plea.

46. The Crown submitted that it was an appropriate case to set an aggregate sentence in accordance with s 53A of the CSPA. The appropriate approach to be adopted was that referred to in JM v R [2014] NSWCCA 297.

47. The Crown submitted that the court should not make a finding of special circumstances in this case. In light of the gravity of the offences for which the offender was being sentenced, applying the statutory formula would provide sufficient time for supervision on parole.

48. The Crown further submitted that caution should be taken in examining sentences imposed in similar cases, relying on Pham v R [2014] NSWCCA 115; and Bao v R [2016] NSWCCA 16. In R v Smith [2016] NSWCCA 75, the Court of Criminal Appeal confirmed that care was required in the use of comparable cases and sentencing statistics, however, that they may provide a useful guide as to the range of sentences available.

49. Finally, the Crown provided Judicial Commission of New South Wales statistics in respect of the various offences.

50. The Crown’s written submissions were supported by oral submissions in which it was submitted that the offender’s reliance on the psychologist’s report was of limited weight without direct evidence of the matters outlined therein. The Crown submitted the objective seriousness of the offending should be assessed as follows:

Count 1 – involving the rubbing of the complainant’s vagina under her clothing when she was 8 years of age, within the mid-range of objective seriousness for an offence pursuant to s 61M(2).

Count 4 – digital penetration of the complainant when she was 10 or 11 years of age, when she was under the authority of the offender, a vulnerable young child in her own home, constituted an offence “around the mid-range” for an offence pursuant to s 61J.

Count 8 – sexual intercourse with the complainant when she was 11 or 12 years of age, with the same aggravating factors present, namely, she was under the authority of the offender, of a young age, and in her own home, constituted an offence within the mid-range for offending pursuant to s 61J.

Count 9 – sexual intercourse without consent that occurred in 2015 was at or about the mid-range of objective seriousness for an offence pursuant to s 61I. There was no evidence of any particular violence other than the offending conduct.

51. The Crown confirmed that an aggregate sentence pursuant to s 53A of the CSPA was appropriate. The offending constituted serious offending, warranting a lengthy custodial sentence.

52. The Crown conceded that having regard to the plea of guilty entered by the offender, the standard non-parole period does not necessarily apply, relying on R v Way (2004) 60 NSWLR 168.

53. Otherwise, the Crown agreed that a 10% utilitarian discount was agreed and that a finding of special circumstances was opposed. The fact that it was his first time in custody did not warrant a finding of special circumstances and given the length of the sentence, the usual ratio of head sentence to non‑parole period would be a sufficient period of time to address his ongoing psychological, mental health and drug issues.

54. In reply, Counsel for the offender submitted that in imposing an aggregate sentence, it was important, given principles of proportionality and totality, that any sentence should not be a crushing sentence for the offender. It was his first time in custody and he had a need for ongoing psychological support. Further, pursuant to Muldrock v R (2011) 244 CLR 120, the Standard Non‑Parole Period was merely a guidepost in the sentencing process.

Determination

55. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“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.”

56. I accept the Crown’s submission that the criminal conduct involved in Count 1, which involved the rubbing of the complainant’s vagina under her clothing when she was asleep with her mother and the offender, at 8 years of age, constituted offending within the mid-range of objective seriousness for an offence pursuant to s 61M(2) of the Crimes Act 1900, given the vulnerable age of the complainant.

57. The objective seriousness of the offending in Count 4 of the Indictment which involved penetration of the complainant’s vagina with the offender’s hand when she was 10 to 11 years of age, and asleep in her own bed, again constituted an offence within the mid-range of offending pursuant to s 61J, but towards the lower end of that mid-range.

58. The objective seriousness of the offending in Count 8 on the Indictment which involved penile penetration of the complainant’s vagina whilst she was asleep with her younger half-sister lying next to her, also constituted offending within the mid-range of offending pursuant to s 61J.

59. The objective seriousness of the offending pursuant to Count 9, namely, sexual intercourse without the complainant’s consent when she was 16 years of age, following an argument with her, during which she was clearly not consenting by saying continually to him “get off”, constituted offending within the mid-range of an offence pursuant to s 61I of the Crimes Act, but towards the lower end of the mid-range for that offence, given the absence of any particular violence other than the offending conduct.

60. I accept the Crown’s submission that the following aggravating features apply to each of the offences, pursuant to s 21A(2) of the CSPA, namely:

1. S 21A(2)(eb) the offences occurred in the home of the complainant.

2. S 21A(2)(l) the complainant was 8 years old and the step-daughter of the offender, she was therefore a vulnerable victim.

3. S 21A(2)(k) the offences occurred at a time when the offender was the step-father of the complainant and therefore in a position of trust.

61. It is beyond argument that general and specific deterrence are relevant to the sentencing process for child sexual assault offences. The most vulnerable members of our community must be protected from the commission of such crimes and appellate authorities repeatedly state that the courts must make it clear to offenders and other persons with similar impulses, that the court will impose severe punishment for such offences. Indeed, the maximum penalties proscribed by Parliament for these offences reflect the community abhorrence of and concern about adult sexual abuse of children, and also reflect the fact that child sex offences have profound and deleterious effects on victims which are long term, and may be both physical and psychological.

62. I have also had regard to the Victim Impact Statement tendered on behalf of the complainant. It sets out the impact that these offences have had on the complainant’s psychological and emotional state, and was a poignant exposition of the extent of the trauma suffered by the complainant. I note that there is no medical evidence against which to assess the victim impact statement, however, it is a matter of common sense that the offences have had a substantial impact on the complainant. As set out above, the courts have long recognised that sexual abuse of children of tender years will inevitably give rise to long-term adverse psychological consequences. I note, however, that the Crown does not assert that the impact gives rise to an aggravating factor in the present matter. I have therefore taken the victim impact statement into account, but I make it clear that I have done so as to not aggravate the offender’s culpability.

63. I do not accept the additional submission of the offender, referred to in [35] above, that the fact that the offender himself has acknowledged his guilt, will assist the victim on the path to recovery, relying on R v Olbrich, supra. That case involved a plea of guilty by an accused to a charge of having imported prohibited drugs pursuant to s 233B of the Customs Act 1901 (Cth). The trial judge had rejected evidence provided by the accused that he only acted as a courier in the importation of the drugs. The High Court’s decision is authority for the principle that a sentencing judge may not take facts into account in a way that is adverse to the interests of an accused, unless those facts have been established beyond reasonable doubt. If there are circumstances in favour of the accused, it is enough for those circumstances to be proved on the balance of probabilities, for a sentencing judge to take them into account. I am not satisfied here, to the required standard, that the fact the offender has acknowledged his guilt has assisted the victim in the way he contends, relying on the Victim Impact Statement.

64. The offender is entitled to a utilitarian discount on sentence of 10% in relation to his late pleas of guilty in respect of the subject offences. I accept that that plea is some evidence of remorse, and I accept the offender’s evidence, which was not challenged by the Crown, of his remorse and contrition for his offending. It is also accepted that the complainant has been saved from the unpleasant process of facing cross-examination.

65. The subjective matters put on behalf of the offender are put by way of reliance on the report of Ms Hubner (Ex 1). The offender gave no evidence of those matters, nor was he asked whether he had told the psychologist the truth of the matters set out in her report. There is therefore less weight that can be placed upon those matters, however, some of them are self-evident. The offender had limited education and had not worked since suffering a carpal tunnel injury in his 30’s. He has been in receipt of a disability pension for many years. I do not accept the submission made on his behalf that the offender did not find domestic partnering easy, given that he had been involved in four failed relationships before he embarked on a relationship with the complainant’s mother. The court could place no reliance upon his vow that he will not engage in any further relationships, and for that reason, the circumstances giving rise to the subject offences are unlikely to arise again in his life. Similarly, the opinion of the psychologist that he is a moderate risk of recidivism is somewhat unreliable, as conceded by her.

66. I accept that the offender has reported symptoms consistent with depression. However, I accept the submission made by his counsel that the cause of that depression is unknown, namely, whether it is because of his “impending imprisonment, or the culmination of a life of low self-esteem or perceived lack of meaningful achievement”. The offender has sought a finding of special circumstances pursuant to s 44 of the CSPA on the basis that this would be his first time in custody, and the need for psychological and sexual treatment, based on the report of Ms Hubner. That application is opposed by the Crown, on the basis that any sentence will be sufficiently long to ensure that the usual ratio between non‑parole period and head sentence will provide adequate supervision and opportunity for treatment to ensure the offender is returned as a valued member of the community. I do not accept the offender’s submission that the fact of multiple offences, for which he is being sentenced, give rise to special circumstances here. Nor do I accept that the offender’s psychological state would warrant the finding of special circumstances in all of the circumstances. He may receive appropriate treatment as a sexual offender during his period of incarceration.

67. I accept that the offender has no history of sex offending other the instant offences. However, the instant offences took place over a long period of time and involved a child of tender years from 8 or 9 years of age until she was 16. Even discounting the drink-driving matters and domestic violence related matters in 2011, the fact that he has no record of serious personal violence does not in this case entitle him to any leniency.

68. I am not persuaded that the offender is entitled to leniency as a result of the impairment to his vision in his left eye. Given the nature of his offending, it is likely that his sentence will be served in protective custody in any event. Since the Court of Criminal Appeal’s decision in Clinton v R [2009] NSWCCA 276, as a general proposition service of a sentence in protective custody has not warranted a lesser sentence than would otherwise be imposed.

69. The offender has asked that four matters be taken into account on a Form 1 in respect of count 8. They are as follows:

Count 3 – An aggravated indecent assault on the complainant when she was 9 years of age, being an offence pursuant to s 61M(2) of the Crimes Act 1900. That offence involved the offender entering the bathroom at a time when the complainant was in the shower. He opened the shower door and started talking to her, and then reached into the shower and squeezed her buttock. The objective seriousness of this offending was at the lower end of the range for an offence pursuant to s 61M(2).

Count 5 – Aggravated sexual intercourse without consent, an offence pursuant to s 61J(1) of the Crimes Act 1900. This offence occurred when the complainant was 10 or 11 years of age, and asleep in her bed. She woke up to the offender licking her vagina. Her pyjama bottoms and underwear had been removed, and when she protested, the offender told the complainant to “stop yelling as you will wake everyone up and you will get into trouble”. He covered her mouth with his hand and then offered her money to not say anything, as he would get into trouble. This constituted serious criminal conduct, just below the mid-range of objective seriousness for an offence pursuant to s 61J(1).

Count 6 – Aggravated indecent assault on a person under the age of 16 years pursuant to s 61M(2). When the complainant was aged 10 or 11, she was in the shower getting ready for school. The offender entered the bathroom and got undressed, and got into the shower, hugging the complainant and pressing his naked body against hers. The complainant pushed the offender, causing him to lose balance and fall out of the shower to the floor. The complainant shut the shower door and yelled at the offender to leave the bathroom, and then stayed in the shower until she heard her mother return to the house. The objective seriousness of this offending was towards the lower end of offending for an offence pursuant to s 61M(2).

Count 7 – Aggravated indecent assault on a person under 16 years of age pursuant to s 61M(2). At the time the complainant was 11 or 12 years of age and in year 6 at school. The complainant and the offender were playing Playstation in the garage and when the complainant got up to leave, the offender tripped her from behind, causing her to land face down on her stomach, splitting her lip. The offender grabbed her ankles and pulled her back towards him, and pulled down her pants and underpants, and exposed her buttocks and vagina. He rolled her over onto her back and straddled her. He then rubbed her vagina whilst slapping her leg. The complainant then started punching the offender in the stomach, so he released her and she left after pulling her clothes on. The objective seriousness of this offending was just below the mid-range of offending pursuant to s 61M(2) of the Crimes Act 1900.

70. The offender has acknowledged his guilt for the four matters listed above on the Form 1. Whilst they are taken into account in the sentencing process, they inevitably lead to some accumulation in sentence. I have certified that I have taken these matters into account on the Form 1.

Aggregate sentence

71. I have had regard to the maximum penalty for the offence in Count 1 pursuant to s 61M(2) of the Crimes Act of 10 years; the maximum penalty in respect of Counts 4 and 8, for an offence pursuant to s 61J(1) of the Crimes Act of 20 years; and the maximum penalty in respect of Count 9 for an offence pursuant to s61I of the Crimes Act of 14 years imprisonment. I have also had regard to the fact that the offences referred to above carry Standard Non-Parole Periods proscribed for those offences of 8 years, 10 years and 7 years respectively. The maximum penalties in respect of each offence, and Standard Non-Parole Period in respect of each offence, are guideposts in the sentencing process.

72. This is an appropriate matter for an aggregate sentence pursuant to s 53A of the CSPA. Before sentencing the offender, however, I am required to set out the indicative sentences that I would otherwise have sentenced the offender to in respect of each count. As each of the offences are subject to a Standard Non-Parole Period, I am also required to set out the non-parole period for each offence.

73. The indicative sentences I would have otherwise arrived at, having regard to the aggravating factors set out above, the utilitarian discount of 10% on sentence and the subjective matters referred to above, are as follows:

1. Count 1 – a term of imprisonment of 30 months and a non-parole period of 2 years.

2. Count 4 – a term of imprisonment of 3 years and a non-parole period of 2 years and 3 months.

3. Count 8 – a term of imprisonment of 5 years and 6 months and a non-parole period of 4 years.

4. Count 9 – a term of imprisonment of 7 years and a non-parole period of 5 years and 6 months.

74. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

75. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. … Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

76. In JM v R, supra, the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved.

77. In JM v R, supra, R A Hulme J, with whom Hoeben CJ at CL and Adamson J agreed, referred at [104] to the longstanding policy of the courts of treating sexual offences committed against young children as being of the utmost seriousness. His Honour referred to R v BJW [2000] NSWCCA 60 at [20], where Sheller JA observed:

“The maximum penalties the legislature has set for such offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim.” (see remarks of Kirby J in R v Skinner (1994) 72 ACrimR 151 at [154]). In R v Hudson (unreported) CCA 30 July 1998 at [3], Sully and Ireland JJ, with whom Speigalman CJ agreed, said:

‘Recognition is also given to the fact that children in a family situation are virtually helpless against sexual attack by the male parent and that children have a right to be protected from sexual molestation within the family and that this can only be achieved by the courts imposing sentences of a salutary nature.’”

78. In arriving at the aggregate sentence here, I have taken into account the aggravating and mitigating factors set out above, the remorse and contrition shown and subjective factors put on behalf of the offender, together with his acknowledgement of guilt in respect of the offences on the Form 1. Clearly, the threshold contained in s 5 of the CSPA has been crossed, and I am satisfied that there is no alternative to imposing a sentence of imprisonment in this matter. In applying the principles of totality and proportionality to the offending conduct here, given the serious nature of the criminality involved over an extended period of some 7 years, I intend to sentence the offender to a term of imprisonment of 12 years, with a non-parole period of 9 years, to commence on 16 December 2017, to reflect the time already spent in custody.

Orders

79. I make the following orders:

1. You are convicted of the following offences:

1. Count 1 – aggravated indecent assault of a person under the age of 16 years pursuant to s 61M(2) of the Crimes Act 1900;

2. Count 4 - aggravated sexual intercourse without consent on a person under the age of 16 years pursuant to s 61J(1) of Crimes Act 1900;

3. Count 8 – aggravated sexual assault on a person under the age of 16 years pursuant to s 61J(1) of the Crimes Act 1900; and

4. Count 9 – sexual intercourse without consent pursuant to s 61I of the Crimes Act 1900.

2. You are sentenced to a non-parole period of 9 years imprisonment to commence on 16 November 2017 and to terminate on 15 November 2026.

3. The balance of the sentence will be 3 years to commence on 16 November 2026 and to terminate on 15 November 2029.

80. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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Decision last updated: 27 March 2018