R v DM

[2018] NSWDC 62

District Court

New South Wales

Medium Neutral Citation:	R v DM [2018] NSWDC 62
Hearing dates:	15 March 2018
Decision date:	23 March 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [105]
Catchwords:	Persistent child sexual abuse; produce child abuse material
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	ARS v R [2011] NSWCCA 266 Cahyadi v R [2007] NSWCCA 1 JM v R [2014] NSWCCA 297 Langbein v R [2008] NSWCCA 8 R v D [1997] SASC 350 R v Fitzgerald (2004) 59 NSW LR 493 R v Gavel [2014] NSWCCA 56
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) DM (Offender)
Representation:	L Burgoyne (Crown Solicitor) B Neild (Offender)
File Number(s):	17/126204
Publication restriction:	Non-Publication/Suppression Order pursuant to s 7 for name of complainant and offender.

REMARKS ON SENTENCE

Introduction

1. The offender was committed for sentence on 17 October 2017 from Taree Local Court. He had entered pleas of guilty to the following two matters:

1. Sequence 9 – produce child abuse material pursuant to s 91H(2) of the Crimes Act 1900. The maximum penalty for that offence is 10 years imprisonment and there is no Standard Non-Parole Period proscribed.

2. Sequence 11 – Persistent sexual abuse of a child pursuant to s 66EA(1) of the Crimes Act 1900. The maximum penalty for that offence is 25 years imprisonment and there is no Standard Non‑Parole Period proscribed.

2. The offender was arrested on 27 April 2017 and has been in custody since that date.

The sentence hearing

3. The sentence hearing took place at Taree District Court on 15 March 2018. Exhibit A on the sentence hearing was the Crown Sentence Summary which included a Statement of Agreed Facts, which is summarised below. To place those facts in context however, it is important to set out the particulars of the offending pursuant to s 66EA of the Crimes Act. I note the commencement of a prosecution against the offender for that offence was approved by the Deputy Director of Public Prosecutions.

4. The particulars are that between 1 January 2006 and 27 April 2007 at various locations, including at least one occasion in New South Wales, did, on at least three separate occasions, and on at least three separate days, engage in conduct in relation to BJM that constituted a sexual offence, namely:

1. Between 1 January 2006 and 31 December 2007 at Sisters Beach in the State of Tasmania did assault BJM and at the time of that assault committed an act of indecency on BJM, she then being under the age of 10 years.

2. Between 1 January 2006 an 31 December 2011 at Sisters Beach in the State of Tasmania did have sexual intercourse with BJM, she being under the age of 10 years.

3. Between 1 January 2012 and 31 December 2013 at Sisters Beach in the State of Tasmania did attempt to have sexual intercourse with BJM, she being under the age of 10 years.

4. Between 1 January 2016 and 31 December 2016 at Harrington in the State of New South Wales did assault BJM and at the time of that assault committed an act of indecency on BJM, she then being under the age of 16 years.

5. Between 1 September 2016 and 7 January 2017 at Harrington in the State of New South Wales did have sexual intercourse with BJM she then being over the age of 10 and under the age of 14 years and under authority of the offender.

6. Between 1 September 2016 and 7 January 2017 at Harrington in the State of New South Wales did have sexual intercourse with BJM she then being over the age of 10 and under the age of 14 years and under authority of DM.

7. On 25 April 2017 at Harrington in the State of New South Wales did have sexual intercourse with BJM she then being over the age of 14 and under the age of 16 years and under authority of DM.

5. The Agreed Facts are that the offender, who was born on 15 February 1977, is the natural father of the victim BJM, who was born on 8 January 2003. She has three siblings.

6. The offender and his wife and family moved to Tasmania about six months after the victim was born. They lived with her maternal grandparents for five years, and then at various places over a period of a few years. In December 2014, they moved back to New South Wales and settled at Harrington, near Taree.

7. On 26 April 2017, the victim told her mother that the offender had been sexually assaulting her. She was interviewed by the relevant authorities the next day and disclosed that the offender had been sexually abusing her “for as long as I can remember”. She outlined that that conduct involved the offender touching her bottom and breasts on a daily basis. He would give her a hug goodnight and touch or cup her breasts in the process. He would slap her on the bottom as she walked past him, or gets up, and when she is in bed and he is kissing her goodnight. On occasions the offender digitally penetrated her vagina.

8. When the family resided in Tasmania, the offender made her watch pornography, including child pornography, with him. She has a vague memory of these incidents, however, it sometimes led to the offender touching the victim in a sexual manner.

9. Whilst in Tasmania, when she was three or four years of age, at premises at Sisters Beach, the offender, the victim and one of her brothers were on the couch. The victim’s brother was asleep, and the offender starting touching the victim in a sexual manner and pulled her on top of himself. This is the conduct in (i) of sequence 11.

10. When the victim was around nine years of age, the offender and the victim were lying on the couch under a sleeping bag, and the victim had her back to the offender. The offender tried to insert his penis into her anus. She felt the offender pressing and pushing really hard, hurting her, but she was not certain whether he penetrated her anus or not. The victim’s mother, who was previously asleep in her bedroom, walked into the room and the victim used that opportunity to leave and go to her bedroom (this is the conduct in (iii) of sequence 11).

11. The victim was 11 years of age when the family moved to Harrington, New South Wales. Whilst living there, the offender continued with inappropriately touching the victim on a daily basis. The most frequent form of touching was fondling, slapping and grabbing the victim’s bottom and touching her breasts. The victim suffered from a sore back and it was not unusual for the offender to give her a massage. On occasions, in the course of the massage, the offender would lower his hands and fondle the victim’s bottom, making her feel uncomfortable. Sometimes he would try to digitally penetrate her vagina. One such occasion occurred in September 2016 when the offender was giving the victim a massage in the lounge room. The victim’s mother was not at home at the time. The victim was wearing a bra and shorts and lay on the floor on her stomach. The offender was massaging her back, but started moving his hands lower, making the victim uncomfortable, so she told him she was feeling tired. The offender put his hand underneath the victim’s shorts, massaged her bottom before moving his hands between her legs and putting his fingers inside her vagina. In order to have him stop, the victim repeated that she was tired and got up to go to bed. This was the conduct in offence (v) in sequence 11.

12. The offender followed the victim to her bedroom and stood next to her bed, talking to her. The victim, feeling uncomfortable, rolled towards the wall. The offender placed his hands inside her shorts, inserting his finger into her vagina for a period of time. The victim told him she was going to sleep and he needed to stop. The offender pulled his hand out saying “I love you”, and walked out. The victim was 13 years of age at the time, and cried herself to sleep. This was the conduct comprising offence (vi) in Sequence 11.

13. Similar conduct continued over the following months, with the offender massaging the victim and fondling her bottom regularly, and occasionally digitally penetrating her vagina and anus. The last incident occurred about two nights prior to the interview, on Anzac Day. The offender was giving the victim a massage on her bed. As he was massaging her back, the offender moved his hands lower, underneath her clothing, and onto her bottom. He used his fingers to penetrate her anus. The victim told him she was better and did not need him to massage her any more, and he stopped. This was the offending in offence (vii) of sequence 11.

14. The offender’s behaviour towards the victim was noticed by other family members as the offender always treated the victim more favourably than his other children. His preoccupation with the victim was described by other family members as “obsessive”. He would buy the victim underwear, he would colour her hair, and for a period of time kept a record of her menstrual cycle.

15. The victim’s mother had noticed the offender getting increasingly touchy with the victim, fixing her bra straps and touching her on the bottom, and rubbing her buttocks. He also insisted that the victim had her own room.

16. On a number of occasions, both in Tasmania and New South Wales, the victim’s brother had seen the offender walking out of the victim’s bedroom with an erection. The younger brother had also witnessed a similar incident in Tasmania.

17. In June 2016, one of the victim’s younger brothers was hiding in the victim’s bedroom in order to scare her. The offender was in the bedroom saying goodnight to the victim, and was kneeling beside her bed. The brother was crawling on the floor on the other side of the bed. As he jumped up to scare the victim, he saw the offender’s hand under the blanket between the victim’s legs. The victim screamed and the offender pulled his hand out. This was the offending comprised in offence (iv) in sequence 11.

18. The victim’s younger brother disclosed his observations to the victim’s mother, however, the victim denied it at the time, and it was dismissed on the basis that the younger brother, who suffered from a bipolar disorder, was causing trouble. That brother witnessed a further incident where the offender was giving the victim a massage behind the lounge in the lounge room, and the victim changed from shorts to a skirt mid-way through. This led the brother to place a camera in the victim’s room in order to capture the offender’s conduct, but the camera was discovered.

19. When the offender was arrested on 27 April 2017 at his workplace, he was placed under arrest by police for sexual assault upon the victim, to which he replied, “I understand”. The offender then participated in an ERISP interview in which he made admissions to assaulting the victim over a period of time. He admitted to touching her breasts and bottom and possibly vagina, but he was not entirely sure of that. He could not provide any details when pressed, stating it probably went on for at least 12 months.

20. The offender said that he touched the victim’s breasts while giving her a massage, and might have brushed over her vagina, but probably not more than that. When asked whether anything happened in Tasmania, he said, “Not that I can think of at the top of my head”.

21. The offender framed his admission in terms of “whatever the victim said I did, I will agree to”. When specific allegations were put to him, he responded, “It’s possible”, adding that if the victim said that it happened, he agreed with it.

22. The offender described the routine of wishing the victim goodnight. During that routine he would kiss her belly underneath her clothing. He would kiss her lips and cheeks. At times he kissed her bottom and thinks he did that on the Anzac Day incident.

23. The offender further disclosed that between January 2017 and April 2017, he recorded the victim while she was having a shower, unaware, through the window. The video captured her breasts and vagina. This was the offending comprised in sequence 9. The offender said he did so because he was concerned that she was taking naked selfies and sending them to others, and he wanted to catch her out. He did this on two occasions.

24. The offender was asked about placing his penis in the victim’s mouth. He said it was possible, but did not happen in recent times. It would have been while they were living in Sisters Beach in Tasmania. He was not sure how old the victim was. This conduct was the offending contained in offence (ii) in sequence 11.

25. The offender agreed that he played the victim pornography, not excluding child porn. He said he was obsessed with the victim, that he committed these acts for his own sexual gratification, and knew his actions were wrong, however, he did not feel that he could stop himself. He acknowledged his feelings for the victim were more than fatherly love, and described feeling conflicted about a prospect of her having a boyfriend. When describing the victim, he described her in terms of an attractive woman rather than a daughter. He believed that he would have continued the offending behaviour had the victim not reported it.

26. The offender informed the police that he was abused as a child as well, and does not wish to put the victim through the same predicament by denying he committed the offences against her.

27. Exhibit A included the criminal history of the offender which demonstrated that he had no prior history of offending. Also included was a Victim Impact Statement which the victim read in court. It outlined in some detail the devastating impact on the victim of the offender’s criminal conduct towards her over a period of many years. One could not help but be moved by the extent of the psychological harm caused to the victim, who loved her father, but had been otherwise devastated by his conduct. The Victim Impact Statement is referred to below.

Evidence tendered on behalf of the offender

28. The offender tendered a report from Ms Lucie Swaffield, forensic psychologist, dated 28 February 2018 (Ex 1) and his ERISP interview dated 27 April 2017 (Ex 2). The purpose of that tender was to demonstrate that by his responses to police questioning he had accepted his wrongdoing, and expressed extreme remorse at the earliest opportunity, even before he was charged.

29. The report of Ms Swaffield, forensic psychologist, set out in some detail the family background of the offender. He was the eldest of five children and was raised in a remote community in Tasmania. Under the heading “Trauma History”, the offender reported to the psychologist that he was sexually abused by a priest from the Anglican Diocese of Tasmania from 14 to 17 years of age. He was groomed from the church band and then repeatedly sexually assaulted. He became confused about his sexual identity and moved into the rectory to be close to the priest at 17 years of age. He then reported the matter to police, and the matter went to trial in Tasmania in 1999. The process of cross-examination was highly distressing for him, however, the perpetrator went to prison, but was now living in the community. A fellow victim, and close friend, had killed himself as a result of the abuse, which he regarded as an institutional cover up. This history was confirmed by the offender’s father.

30. The psychologist reported that the offender identified himself as a heterosexual man with a high sex drive. He had been married since 2000, when he was approximately 23 years of age. The offender claimed to not have a sexual attraction to children in general, with the exception of the victim. He denied using sex as a way to manage emotional distress or physical pain.

31. The offender had worked in numerous unskilled occupations as an adult, including in hospitality, in factory work, in the music industry, as a computer technician, for a large supermarket chain, including management experience, in retail, in quarries and sawmills, manufacturing, truck driving, professional cleaning and as a groundsman. He was a self-taught computer technician who enrolled in an online tertiary degree in psychology in 2016, but discontinued the course because of an inability to concentrate on the material.

32. Other than a long-term problem with psoriasis, the offender reported no health problems. He did report being diagnosed with Post Traumatic Stress Disorder, “hypersensitivity” and depression more than ten years ago by a general practitioner in Tasmania. He had been prescribed anti-depressant medication previously however, was not taking any medication in recent years. He denied any problems with drugs or alcohol.

33. With respect to the offences, the author reported that the offender said “something went wrong”, and he began to view the victim as a sexual object at some point when she was under 10 years of age. He found her special compared to his other children and considered her more mature than her biological age. His feeling towards her was partly romantic, however, he wished it had been even more romantic.

34. The offender said that he did not try to stop himself to stop the abuse or consider that he was harming the victim. The author reported that as the victim grew older, the offender started to feel sadness because he “never wanted her to grow up”, and worried about her having sexual experiences with boys her own age. He now realised that what he did was wrong and sexually abusive. He had expressed sorrow and wanted to kill himself when he first came into custody. He said he had no excuses. When asked to reflect on the potential impact his abuse might have had on the victim, he said he could not be sure. He also told the author that he was open to undertaking specialised treatment as a sex offender in prison.

35. The offender was assessed for recidivism as being below the average risk category, however, the author noted that the testing was somewhat unreliable.

36. Under the heading “Clinical Opinion”, the author opined that the offender appears to have perpetrated sexual abuse upon his daughter because he was sexually preoccupied and identified with her, both as his romantic lover and also as the physical subject of a deviant sexual interest in children. She opined:

“Among his distorted perceptions, he lacked insight into himself as a perpetrator and went on abusing her without considering her feelings. He presents as remorseful to a degree, yet had difficulty hypothesising about the actual harm he might have cause BJM”.

37. The author noted that the offender’s description of other inmates’ child sex offences as being more serious than his own offending, suggesting his empathy for the victim was still limited. She considered that his tearfulness when speaking about the victim might be about the harm he has caused, although it could be related to sadness about the end of the romantic relationship he perceived.

38. The author referred to the complex trauma in the offender’s background, but stated that it was not necessarily associated with sex offending. The offender was clear in reporting to the psychologist that his own trauma issues and mental health did not relate to his sexual offending. He stated:

“I have no excuses.”

39. There was no evidence that he used sex as a coping strategy for mental or physical pain.

40. The author opined that his risk of sexual recidivism would reduce if he addressed his sexual preoccupation, deviant sexual interests, and emotional identification issues with his daughter, through specialised treatment. She went on to set out treatment recommendations including a custody-based intensive treatment program (CUBIT), and the need for a significant period of further adjustment once he was released into the community. It was recommended that he seek a psychologist or psychiatrist to address trauma related issues and support upon his release for the long term. He was also likely to require ongoing community based supervision and support while he transitions back to the community.

The offender’s evidence

41. The offender gave evidence that the details reported as to his personal background by Ms Swaffield were for the most part correct. He had enrolled in the psychology course in 2016, following an injury at work where he injured his neck and shoulder. He continues to have some discomfort from those injuries.

41. The offender was referred to [28] of the psychologist’s report where she reported that he said the feeling towards his daughter was partly romantic, however he wished “it had been even more romantic”. He gave evidence that he had always loved his daughter and he convinced himself that he wanted a romantic attachment to her. He knew at the time that it was wrong, however, he convinced himself that she wanted more as well. When asked why he did not stop his conduct, he said “I don’t know”. He convinced himself he was not doing the wrong thing but, at the same time, he knew he was. He also gave evidence that he knew his daughter did not want him to be doing things to her. When asked again why he did not stop, he gave evidence that he could not answer that question, he did not know. He told himself many times that he had to stop, but he did not. He said, “I can’t give a decent answer”.

42. In response to telling the psychologist that he “never wanted her to grow up”, the offender gave evidence that that was not true. He was worried about his daughter. At the time of his interview with the psychologist he had not read the Victim Impact Statement, and first became aware of its contents a few days before the sentence hearing.

43. The offender was asked why he could not be sure of the potential impact on his daughter, he stated it was because he could not put himself inside her head. He said “I am not her”.

44. Now that he had heard the Victim Impact Statement read in court, he regarded it as absolutely devastating. He said:

“I am so sorry. I know that I did this. I can’t express how sorry I am and wish it was different. I will always love my daughter.”

46. The offender gave evidence that he did not hold it against his daughter that she had reported his sexual misconduct. He acknowledged that she had done nothing wrong.

47. The offender was asked about his comments to the psychologist about not wanting to be in prison with other inmates who had perpetrated sex offences. He explained that the comment was made in regard to the distinction between separate parts of the gaol complex. He was in a low protection area and others were at a higher level of protection. He said it was a geographical reference only.

48. The offender accepted his need for rehabilitative treatment and accepted that he would undergo such treatment with other sex offenders whilst in gaol.

49. The offender was referred to [47] of the psychologist’s report where she stated that she considered his tearfulness when speaking about his daughter might be about the harm that he caused, although it could be related to sadness about the end of the “romantic relationship” he perceived. He gave evidence that his tearfulness during the interview was about the harm caused to his daughter always. He was sorry for the harm caused to “her, her family, my family, and anyone else I have hurt”.

50. The offender gave evidence that he understood that he was facing a lengthy term of imprisonment. He was asked what plans he had upon his release. He did not know what accommodation would be available to him, however, he would like to return to being a productive member of society. That would probably take place in Sydney.

51. In cross-examination, the offender was asked about the question raised by the psychologist as to whether he had insight into his offending. He gave evidence that he knew what he had done was wrong, and that he had hurt his daughter. He had regretted the harm done and had regretted it for a long time.

52. The offender acknowledged that he himself had been through the same process, having been sexually abused as a young man. He had suffered harm during that process. He was asked:

“Q: How on earth did that not occur to you when you were abusing your daughter?

The offender answered that he knew it was wrong. When asked whether it was his intention to continue the abuse, he said, “No”, however the conduct had stopped because his daughter had complained to her mother.

53. The offender gave evidence that he considered his daughter mature for her age. Despite having some issues with the timeline of the offences, he was not going to argue with anything his daughter said.

54. The offender gave evidence that he had no sexual interest in children generally. He acknowledged that he had commenced watching child porn “a while ago”, and had played child porn to his daughter. When asked why, he said, “I don’t know”.

55. It was put to the offender that he had done so so as to normalise that conduct for his daughter, and he responded, “I don’t know”.

56. The offender denied that the abuse occurred so as to achieve sexual arousement himself. With respect to Ms Swaffield’s comments in respect of other sexual offender inmates, he was asked whether he saw himself different from other sex offenders, to which he replied, “No I don’t”.

The offender’s ERISP interview

57. Learned Counsel for the offender referred to a number of responses in the offender’s ERISP interview where he accepted the allegations put to him by investigating police, even if he had no specific memory of the event. A number of the allegations he described as “possible”. It was submitted that this was indicative of his determination not to make things worse for his daughter, and a strong indication of his remorse, given that it was an immediate response upon his arrest, and was therefore above and beyond remorse involved in a plea of guilty at the earliest opportunity. It also was of great assistance to the victim in a harrowing experience for her.

58. The ERISP interview was also relevant to the assessment of the objective seriousness of the offence of producing child abuse material. It demonstrated that it was of less gravity than might otherwise be thought, given that he had deleted the material and did not disseminate it at all. The court could accept that evidence on the balance of probabilities.

Crown Submissions

59. The Crown relied on a thorough written outline of submissions. The Crown referred to general sentencing principles for sexual offences against children, referring to JM v R [2014] NSWCCA 297. The maximum penalties for such offences reflect community abhorrence and concern about adult sexual abuse of children and therefore general deterrence is of great importance in sentencing such offenders. The Crown also referred to the fact that the courts have recognised that children in a family situation are virtually helpless against sexual attack by a male parent, that children have a right to be protected from sexual molestation within the family, and that this can only be achieved by the imposition of sentences of a salutary nature.

60. In respect of sequence 9, produce child abuse material, the Crown accepted that the offender’s act of filming the victim whilst she was showering, capturing footage of her breasts and vagina, was below mid-range for offences of this kind. However, the Crown submitted that some partial accumulation should be imposed, given that it is a distinct offence from sequence 11, and the criminality of one offence cannot comprehend and reflect the criminality of the other, relying on Cahyadi v R [2007] NSWCCA 1 at [27].

61. In respect of sequence 11, an offence under s 66EA, the Crown referred to Langbein v R [2008] NSWCCA 8, where the court held that the offence carries a maximum term of 25 years, and is a more serious offence than offences which comprise the individual acts.

62. The Crown submitted that the following factors are relevant in assessing the seriousness of the offence:

“(i) The specific child sexual offences that the particularised acts would have amounted to had they been charged individually.

(ii) The number of particularised acts.

(iii) The nature and circumstances of the individual acts.

(iv) The duration of the offending and the age of the child.

(v) Whether the particular acts were representative and therefore not isolated acts.

(vi) Victim Impact Statement.”

63. Here, the offending comprised seven particularised acts. Some of those were representative of ongoing conduct. The Crown produced the following table in respect of the seven particularised acts, and for the Tasmanian offences, referred to equivalent New South Wales offences, whilst acknowledging that, had some of the offending been prosecuted in Tasmania, the applicable maximum penalty would have been less than its New South Wales equivalent.

Offence	Provision	Description	Maximum Penalty
i) Aggravated Indecent Assault, Child Under 10 years	S61M(2) Crimes Act	In Tasmania, victim aged 3 or 4, the offender touched her sexually and pulled her on top of him	10 years
ii) Sexual intercourse with Child Under 10 years	S66A Crimes Act (or later): S 66A(2) Crimes Act	At Sisters Beach, Tasmania, offender placed his penis in the victim’s mouth	25 years or life imprisonment (depending on the date of the offence, which was not clear on the evidence)
iii) Attempt Sexual Intercourse with a child under 10	S 66B Crimes Act	In Tasmania, the offender tried to insert his penis into the victim’s anus. She was about 9yo	25 years imprisonment
(iv) Aggravated (Child Under 16 years) Indecent Assault	S 61M(2) Crimes Act 1999 (NSW)	In June 2016, offender touched the victim between her legs while she was in bed. Witnessed by her brother.	10 years imprisonment
v) Sexual Intercourse with Child over 10 years, under 14 years, under authority	Aggravated (under authority) Sexual Intercourse with child over 10, under 14 years: s 66C(2) Crimes Act	Sept 2016, the offender penetrated the victim’s vagina with his fingers whilst giving her a massage.	20 years imprisonment
vi) Sexual Intercourse with Child over 10 years, under 14 years, under authority	Aggravated (under authority) Sexual Intercourse with child over 10, under 14 years: s 66C(2) Crimes Act	The offender followed her and again inserted his finger into her vagina	20 years imprisonment
vii) Sexual Intercourse with Child over 14 years, under 16 years, under authority	Aggravated (under authority) Sexual Intercourse with child over 14, under 16 years: s 66C(4) Crimes Act	In April 2017, the offender penetrated the victim’s anus with his fingers	12 years imprisonment

64. The Crown submitted that s 66EA encompasses a wide range of conduct, and an assessment of the objective seriousness includes assessing the conduct involved. Here, that conduct included some very serious offending. The offender had commenced abusing the victim by inappropriately touching her when she was very young. That offending progressed to inserting his penis into her mouth, and attempting to penetrate her anus with his penis. In New South Wales the offending included digital penetration of the vagina and anus of the victim.

65. The Crown submitted that there was no hierarchy of sexual acts with respect to sexual conduct involving sexual intercourse. All of the circumstances of the offending are to be taken into account in assessing the seriousness of the offence. However, the attempted penetration of a very young child’s anus must be considered objectively serious, as was the act of forced fellatio on a young child. On the other hand, the Crown accepted that some other types of conduct, which would objectively be considered very serious, do not feature in this offence, for example, penile-vaginal penetration.

66. The Crown further submitted that the particularised conduct did not constitute isolated acts. The agreed facts included the following conduct:

1. The offender regularly touched the victim’s bottom and breasts on a daily basis.

2. The offender regularly slapped the victim on her bottom when she walked past.

3. The offender would touch or cup her breasts when hugging her goodnight.

4. On occasions the offender digitally penetrated the victim’s vagina.

5. Following the offence in (vi), similar offending occurred over the next few months, involving the offender fondling her bottom and digitally penetrating her vagina and anus.

67. The Crown submitted that whilst the punishment cannot be increased by these uncharged acts, the court is entitled to sentence on the basis that the seven particularised acts were not isolated, relying R v Fitzgerald (2004) 59 NSWLR 493 at [13]; ARS v R [2011] NSWCCA 266 at [26].

68. The Crown further submitted that the offending involved persistent sexual abuse of a young girl by her biological father, a circumstance amounting to a gross breach of trust. However, the court should take care not to double count the concept of “under authority” in relation to the later particularised acts/offences.

69. The Crown submitted that the offender on occasions made the victim watch pornography, including child pornography, before he sexually assaulted her. This was held to be “a type of especially perverse cultivation or seduction” – see R v Gavel [2014] NSWCCA 56 at [96].

70. It was submitted that the offender sexualised every day parent-child interactions, such as saying goodnight to the victim, giving her a hug or a back massage. Some of the offending was brazen, having occurred when her siblings were nearby and whilst her mother was in the next room. Further, all of the offending occurred in the victim’s homes, which is an aggravating factor pursuant to s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”)

71. The Crown noted that the offending spanned over 11 years, from when the victim was aged just three or four, and continued until she was 14 years old. The offender did not desist offending voluntarily. Rather, the offending continued up until two days before the victim was interviewed by police.

72. The Crown described the Victim Impact Statement, read by the victim in court, as “an eloquent expression of the pain, guilt and turmoil she has experienced as a result of the offender’s actions”. It went on to describe her various psychological problems, her episodes of suicidal ideation, and her lack of trust in others.

73. The Crown submitted that the offending falls comfortably within the mid-range for an offence pursuant to s 66EA. The offender was entitled to a utilitarian discount on sentence of up to 25% as his pleas of guilty were entered at the earliest opportunity.

74. The Crown submitted that whilst the offender was a person of otherwise prior good character, that has reduced significance in circumstances of repeated sexual offending over time.

75. The Crown submitted that there was no basis here for finding that the offender’s moral culpability was reduced to any degree by way of a mental condition. He therefore remains an appropriate vehicle for general and specific deterrence.

76. The Crown submitted that there was no causal connection between the offender’s history of childhood sexual abuse. Ms Swaffield drew no such conclusion, nor did the offender claim any connection.

77. On the question of remorse, the Crown submitted that the court would have regard to the offender’s expressed desire to avoid his daughter having to give evidence at trial, the fact that he entered a plea of guilty at the earliest opportunity, and his willingness to participate in programs designed to reduce recidivism. However, of some concern was Ms Swaffield’s opinion that the offender “lacked insight into himself as a perpetrator and went on abusing without considering her feelings”. Her opinion was that he presented as remorseful to a degree, yet had difficulty hypothesising about the actual harm he may have caused his daughter. Any adjustment to the sentence therefore, on the basis of remorse, would be modest.

78. The Crown submitted that a finding of special circumstances should not be made here. The fact that it was the offender’s first time in custody, does not justify a finding of special circumstances. Any programs designed to readdress his offending would be available to the offender in custody and given the seriousness of the offence, the usual parole period would be an adequate period to address any needs he may have to reintegrate into the community.

79. The Crown provided a summary of 11 cases involving offences pursuant to s 66EA, however, advocated caution when having regard to such a small statistical pool. A review of the approach taken by the Court of Criminal Appeal over similar cases revealed that persistent sexual abuse of a child over many years is considered to be a very grave offence. Any sentence was to be backdated to 27 April 2017.

Offender’s submissions’

80. Learned counsel for the offender described the Crown written submissions as very fair, however, he referred to the tension between the principles referred to in Langbein v R, and R v Fitzgerald. Ultimately, the court must sentence depending on the number of offences and circumstances surrounding them. It was conceded that the offence pursuant to s 66EA was more serious than any of the constituent offences making up the offence

81. Learned Counsel for the offender referred to his written submissions. He acknowledged that good character was of little weight in this type of offending.

82. He submitted that the court would accept that this offender was unlikely to reoffend, given the remorse that he had shown and that his sexual deviancy had been confined to his daughter and was not more broadly based. He now had some significant degree of insight into his own conduct and the harm done to his daughter. On the question of reoffending, counsel acknowledged he had been assessed at below average risk for sexual recidivism. Counsel also highlighted that the offender had not been a terrible parent. He had made efforts over a long period of time to be a good father, however, he had betrayed his daughter’s trust in a terrible way. There were, however, positive aspects of his parenting which would assist the court in finding that he had good prospects of rehabilitation.

83. In his written outline of submissions, Counsel for the offender set out the following remarks of Doyle CJ in R v D [1997] SASC 350, which had been cited with approval in the New South Wales Court of Criminal Appeal in ARS v R; and R v Fitzgerald, supra. The Chief Justice stated in respect of the equivalent South Australian offence:

“The court should identify the different offences involved and the maximum punishment that they attract. … It is not necessary to identify the number of offences committed with any precision, although if that can be done readily, there is no reason why it should not be done. An approach which required one to identify the number of offences with precision, would simply reintroduce the very problem which s 74 is aimed. It is sufficient to make an assessment in a general way of the frequency of the offending. In my opinion, one should then consider the likely sentence if the offender fell to be sentenced under the provision that creates the relevant offence or offences, as distinct from under s 74, and on the basis that the offender is sentenced in respect of a number of representative offences, those offences being treated as offences which are part of a course of conduct involving similar conduct.

In this way the court will still have regard to the duration of the offending, the seriousness of the offences involved, and the frequency of the offending. But the court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima.”

84. Counsel conceded that the offending was objectively very serious, given that occurred over a period of up to 11 years. The offending also included offences contrary to s 61J(1), one of the more serious sexual offence provisions.

85. It was further conceded that the offending had caused substantial emotional harm to the victim.

86. In assessing the objective seriousness of the offending, Counsel set out the following observations which are to be taken into account:

• No penile penetration and only one occasion of penile penetration.

• No ejaculation.

• Offending conduct consisted most frequently of inappropriate touching rather than penetration or attempts to penetrate the victim.

• No evidence of planning to any material degree but accepted the offending was not merely opportunistic.

• No threats or violence.

• No threats or instructions to the effect that the victim was not to complain.

87. Whilst acknowledging that there is no hierarchy of forms of sexual intercourse, learned Counsel submitted that as the conduct here took the form of oral intercourse or digital penetration rather than penile/vaginal or penile/anal intercourse, the individual instances of sexual misconduct were placed towards the lower end of the scale of offences against s 61J, particularly when considered in combination with other features of the offending.

88. It was conceded that it was an aggravating factor that the offences were committed in the home of the victim. It was further submitted that although the emotional harm caused was substantial, care must be taken to avoid double counting.

89. It was also conceded that the offender abused a position of trust or authority in relation to the victim, the victim was vulnerable and that the offending constituted a series of criminal acts, however, it was submitted that these were inherent in an offence against s 66EA(1), and as such do not separately aggravate the objective seriousness of the offence, which was submitted to be mid-range.

90. The objective seriousness of the offence against s 91H was submitted to be low range, given that the material produced by the offending was deleted shortly after its creation, and it was not used by the offender for purposes of sexual gratification.

91. It was conceded that no sentence other than one of full time custody was appropriate. Further, it was submitted that the court would find special circumstances based on this being the offender’s first time in custody and upon the need for him to be subjected to a extended period of supervision whilst on parole in order to facilitate his rehabilitation.

92. It was submitted that the offender was entitled to a discount of 25% in respect of his early plea of guilty, and that any sentence should commence on 27 April 2017. It was further submitted that the offence against s 91H(2) formed part of the overall course of conduct engaged in by the offender towards the victim and that the offence against s 66EA(1) was far more serious. The sentence to be imposed in relation to that matter was therefore capable of comprehending and reflecting the offender’s overall criminality, following the principle of totality. Therefore the sentences should be largely, if not wholly, concurrent.

Determination

93. 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.”

94. I find the offending in sequence 9, produce child abuse material pursuant to s 91H(2) of the Crimes Act 1900 to be offending at the lower end of the scale of objective seriousness for an offence pursuant to s 91H(2). The offending occurred on one occasion, the footage was deleted a short time thereafter, and it was not disseminated in any way. I also find that it was part of the ongoing course of offending conduct perpetrated by the offender on the victim.

95. I find the objective seriousness of the offending for sequence 11, persistent sexual abuse of a child pursuant to s 66EA(1) of the Crimes Act to be within the mid-range of offending pursuant to that section. The offending conduct took place over a period of 11 years from a time when the victim was three to four years of age until she was 14 years of age. The seven particulars are representative offences extracted from a long history of almost daily inappropriate touching, fondling, or slapping the victim in a sexualised manner. Further, it involved grooming the victim by having her watch child abuse material so as to normalise that conduct for her prior to abusing her. I accept the aggravating factors for the offending here were that the offences were committed in the home of the victim, that they caused her substantial emotional harm in a vulnerable child of tender years, the offending constituted a gross breach of trust, however, to the extent that any of those factors are inherent in an offence against s 66EA(1), I have been careful to ensure that they do not separately aggravate the objective seriousness of the offending, nor do I double count the emotional harm done to the victim.

96. I accept the Crown submission in relation to the Victim Impact Statement read by the victim in this matter as being an eloquent expression of the pain, guilt and turmoil she has experienced as a result of the offender’s criminal conduct. Whilst there is no medical evidence against which to assess the Victim Impact Statement, it is a matter of common sense that the offending has had a substantial impact on the victim. The courts have long recognised that sexual abuse of children of tender years will inevitably give rise to long term adverse psychological consequences I therefore have 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 by double counting the harm done to the victim.

97. I have taken into account the maximum penalty of 10 years imprisonment for an offence pursuant to s 91H(2) of the Crimes Act, and 25 years imprisonment in respect of s 66EA(1) of the Crimes Act as guideposts in the sentencing process here. General deterrence and specific deterrence are both relevant in the sentencing process for child sexual assault offending. The most vulnerable members of our community must be protected from the commission of such crimes and the appellate authorities have repeatedly stated that the courts must make it clear to offenders and other persons with similar impulses, that the courts will impose severe punishment for such offences. Indeed, the maximum penalties proscribed by Parliament for both 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.

98. The offender is entitled to a utilitarian discount on sentence of 25% as his plea of guilty was entered at the earliest opportunity. I also accept that plea as evidence of some remorse and I accept the offender’s evidence of his remorse and contrition for his offending. He made admissions at the earliest opportunity so as to avoid the victim the prospect of facing cross-examination about the offending.

99. I accept that the offender has no criminal antecedents, however, the persistent offending took place over a period of 11 years involving a child of tender years, from three to four years of age until she was 14. His otherwise good character would not in this case entitle him to any leniency.

100. Nor is the fact that the offender was himself subjected to sexual abuse as a young person, a factor which entitles him to leniency here. The offender himself does not relate his offending to that experience, nor does the psychologist causally connect it to his offending. Notwithstanding that experience, the offender showed a complete lack of insight and empathy for his victim until he became aware of the contents of her Victim Impact Statement. Notwithstanding that, from the outset he accepted all of her allegations so as to not aggravate any potential harm to her.

101. I note that the offender has been assessed as below average risk for sexual recidivism, however, such assessments are notoriously unreliable. The court is unable to accept that the offender was unlikely to reoffend, given the remorse that he had shown and that his sexual deviancy had been confined to his daughter alone, and was not more broadly based. He will require considerable rehabilitation in respect of his sexual offending and I note that he has expressed a desire to undergo such counselling and rehabilitation as is available within the New South Wales Corrective Services system. In this case I am prepared to find special circumstances pursuant to s 44(2), that will enable a longer period than would otherwise be available for his ongoing rehabilitation and return to the community.

102. Any sentence imposed must be “just and appropriate” to reflect the totality of the criminal behaviours. I have had regard to the principles of proportionality in sentencing, and the need for salutary sentences in crimes involving child sexual abuse.

103. As the offending pursuant to s 91H(2) was assessed at the lower end of the objective seriousness for such offending, was a one-off offence which constituted part of the persistent abuse perpetrated by the offender on his daughter, I intend to sentence the offender for a fixed term in respect to that offence of 18 months imprisonment, to be served concurrently with the sentence in respect of sequence 11.

104. In respect of sequence 11, given the nature of the offending which took place over a considerable period of 11 years, on a victim of very tender years during some of her most important formative years, up to the age of 14 years, taking into account the very serious nature of that offending, the subjective matters outlined above and the utilitarian discount of 25%, I intend to sentence the offender in respect to that offence to a term of 10 years and 6 months imprisonment, with a non-parole period of 7 years imprisonment to commence on 27 April 2017.

Orders

105. I make the following orders:

1. You are convicted of the offence in Sequence 9 – produce child abuse material pursuant to s 91H(2) of the Crimes Act 1900.

2. You are sentenced to a fixed term of 18 months imprisonment to commence on 27 April 2017 and to terminate on 26 October 2018.

3. You are convicted of the offence in Sequence 11 – persistent sexual abuse of a child pursuant to s 66EA(1) of the Crimes Act 1900.

4. You are sentenced to a Non-Parole Period of 7 years imprisonment to commence on 27 April 2017 and to terminate on 26 April 2024.

5. The balance of sentence will be 3 years and 6 months to commence on 27 April 2024 and to terminate on 26 October 2027.

106. 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