R v Dr

[2021] NSWDC 118

District Court

New South Wales

Medium Neutral Citation:

R v DR [2021] NSWDC 118

Hearing dates:

11 November 2020 – 18 November 2020; 5 March 2021

Date of orders:

12 April 2021

Decision date:

12 April 2021

Jurisdiction:

Criminal

Before:

Sutherland SC DCJ

Decision:

Aggregate sentence of 20 years 10 months with a non-parole period of 15 years 6 months. Indicative sentences specified at [155] – [156].

Catchwords:

CRIME – SENTENCING – Historical child sexual abuse – Offender’s natural daughter – Two complainants – Aggregate sentence – Indecent assault (under 16) – Sexual intercourse (under 10) – Late guilty plea – Offences in “presence” of person under 18

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes Act 1900

Crimes Legislation Amendment (Child Sex Offences) Act 2015

Crimes (Sentencing Procedure) Act 1999

Drug Court Act 1998.

Cases Cited:

Alesbhi v R [2018] NSWCCA 30

BR v R [2015] NSWCCA 255

BTvR [2010] NSWCCA 267

FD v R [2013] NSWCCA 139

Franklin v R [2016] NSWCCA 319

Gore v R [2010] NSWCCA 330; (2010) 208 A Crim R 353

Markarian v The Queen (2005) 228 CLR 357

MRW v R [2011] NSWCCA 260

R v Bain [2006] NSWCCA 79

R v Cattell [2019] NSWCCA 297

R v Gavel (2014) 239 A Crim R 469

R v Holder (1983) 3 NSWLR 245

R v MM(No 3) [2018] NSWDC 529

R v Seymour [2012] NSWSC 1010

R v Slater [2003] NSWCCA 178

R v Tuala [2015] NSWCCA 8

R v Youkhana [2004] NSWCCA 412

Category:

Sentence

Parties:

Regina (Crown)
DR (Offender)

Representation:

Counsel:
F Sullivan (Crown)
D Roff (Offender)

Solicitors:
Office of the Director of Public Prosecutions NSW (Crown)
Benjamin Leonardo - The Defenders (Offender)

File Number(s):

2018/00316962

Publication restriction:

No publication of any information that might identify a child. Defendant to be referred to by a pseudonym.

Judgment

1. The offender, DR, appears for sentence with respect to two groups of sexual offences which were committed against two different victims some years apart. There is a statutory non-publication order with respect to the names or identifying features of either of the complainants who were children at the time of the offending. The nature of the offender’s relationship with each of the victims has the consequence that there is also to be a non-publication order with respect to the name of the offender as his identification would permit ready identification of the victims.

2. The various offences to which the offender ultimately pleaded guilty will be identified during the description of the factual background to the offending. The offences range in severity from an indecent assault of a person under 16 years of age carrying a maximum penalty of 10 years imprisonment up to several counts of sexual intercourse with a child under 10 years of age whilst being under the authority of the offender. Such offences carry a maximum penalty of life imprisonment with a standard non-parole period of 15 years.

3. The offender denied both groups of offences with the 2 victims and entered pleas of not guilty to all charges. He was initially charged with respect to the offending which related to the second group of offences, chronologically but which had been the first to be the subject of criminal charges in circumstances to which I will refer later in these Remarks.

4. The first group of offences chronologically were ultimately the subject of ex officio charges and were included in an indictment which, together with the second group of offences, came before this Court and a jury in December 2020.

5. The trial before the jury commenced on 11 November 2020 following two days of pre-trial argument regarding tendency evidence and cross-admissibility. The evidence of each of the complainants was held to be cross-admissible as tendency in a joint trial.

6. Partway through the evidence-in-chief of the first victim in time (Victim 1), the offender requested to be re-arraigned. He subsequently entered pleas of guilty to four of the seven counts in the indictment relating to Victim 1. He admitted his guilt with respect to two of the remaining counts and they were each placed on a Form 1 document. One count of physical assault was withdrawn by the Crown following the entering of the guilty pleas to the other counts. The offender also pleaded guilty to three of the four counts relating to Victim 2. One count was withdrawn following those pleas.

7. The first complainant had broken down on a number of occasions in the course of giving her evidence and was clearly in considerable distress throughout the course of her testimony. The entering of the belated pleas of guilty before she had finished her testimony meant that the second complainant was not required to give evidence. The second complainant was, in fact, the natural daughter of the offender.

8. The late entry of the pleas of guilty will be taken into account by me as some indication of an eventual demonstration of contrition and remorse. The timing of his plea was of some limited utilitarian value permitting a statutory 5% discount from an otherwise appropriate sentence.

FACTUAL BACKGROUND

9. In early 2005 the offender commenced a relationship with a woman who was the older sister of Victim 1. Victim 1 was about 11 years of age at the time. The first offence charged occurred some months after the relationship between the offender and the older sister had commenced. The older sister was pregnant to the offender at the time. On an occasion when his partner was in the shower, the offender went into the bedroom of her younger sister, Victim 1, and got onto her bed. He took hold of her shorts and pulled them down before pulling down her underwear. He touched her on the outside of her vagina before pushing his fingers inside her vagina. She described him touching her in this fashion for about two minutes. The offender hastily left the room when they heard the shower turn off. The offender told the 11-year-old victim not to tell anyone otherwise “he would not let her go near the baby”. At that time his partner was still pregnant. The baby, a girl, was born in the following January (1996). As will become clear, in due course that girl became Victim 2 some years later. Following this incident Victim 1 stopped staying at the home of her older sister and the offender.

10. This offending has been charged as aggravated sexual intercourse with a person between the ages of 10 and 14 years. The circumstance of aggravation was that the child, at the time of the offence, was under the authority of the offender. It was Count 1 in the indictment to which the offender pleaded guilty and constitutes an offence against section 66C(2) of the Crimes Act 1900. It carries a maximum penalty of 20 years imprisonment. It does not carry an applicable standard non-parole period as the offending occurred prior to 29 June 2015. The relevant provisions of the Crimes Legislation Amendment (Child Sex Offences) Act 2015 which introduced a statutory non-parole period from that date only applied prospectively.

11. Some weeks after this incident the offender and his partner, the older sister, moved from the unit that they had been renting. They ultimately moved in with the rest of the older sister’s extended family which included her younger sister, Victim 1, as well as two other young children.

12. Some time after moving into the family home, the offender went into the bedroom where Victim 1 slept. The two other young children were asleep in the same bedroom. The offender pulled down the victim’s pants and underwear and licked her vagina with his tongue. She described being able to feel his tongue inside her vagina for a couple of minutes. Victim 1 was 11 or 12 years of age at this time.

13. This incident was charged as sexual intercourse with a person between the ages of 10 and 14 years and constituted a contravention of section 66C(1) of the Crimes Act 1900. It was the second count in the indictment which was presented at trial. The circumstance of aggravation charged with respect to Count 1, namely the child being under the authority of the offender at the time, was not pleaded in this count. Accordingly the maximum penalty is 16 years imprisonment. There is no standard non-parole period which was applicable at the time of the offending.

14. Following his admission of guilt with respect to this count it has been placed on a Form 1 document. I am asked to take it into account in determining an appropriate sentence with respect to Count 3 in the indictment.

15. After he had licked her vagina, the victim tried to shove the offender away. She twisted to one side and lay on her side facing the wall. She pulled her legs up. The offender then moved on top of her and put his penis inside her vagina. This act of penile-vaginal intercourse continued until a few minutes later a noise was heard in the hallway of the house. The offender then hurriedly left the bedroom. This was the first time that the accused had penile-vaginal intercourse with the child victim. This act was similarly charged as an act of intercourse in contravention of section 66C(1) of the Crimes Act 1900 carrying a maximum penalty of 16 years imprisonment. It constituted Count 3 in the indictment to which the offender pleaded guilty.

16. The offender subsequently had penile-vaginal intercourse with the first victim on a number of occasions as well as committing other acts of sexual misconduct. These have not been separately charged. Care must be taken not to increase an appropriate sentence because of uncharged further offences. However, they permit of a finding that the offending conduct was not an isolated incident.

17. During 2006 the first victim disclosed some of the offending to various members of her family, including her mother. She also told a friend and her friend’s mother. The friend’s mother took her to the Department of Community Services (ie DOCS) and she was subsequently interviewed by police. For whatever reason, the police investigation was not continued.

18. Over the following years each of the younger children in the extended family home were removed by the authorities, including Victim 1. The older sister and her partner, the offender, eventually moved into a house near Campbelltown. The younger sister, Victim 1, had been living in a refuge for a period of time after being taken out of the family home. After she moved out of the refuge she occasionally again stayed with her older sister and the offender.

19. In February 2009 the offender’s partner went out for the evening leaving the offender and her younger sister, Victim 1, at home together. Victim 1 was by now 15 years of age. The child of the relationship between the offender and the older sister was by that time 3 years of age and she was also at home in the house. After watching television during the evening Victim 1 went into her bedroom and lay down on the bed. The offender came in and proceeded to touch her all over her body. He rubbed her breasts with one of his hands on the outside of her clothing. This act has been charged as an aggravated indecent assault contrary to section 61M(2) of the Crimes Act 1900. As such it carries a maximum penalty of 10 years imprisonment. A standard non-parole period is specified of 8 years. I respectfully adopt the observations of RS Hulme J in BT v R[2010] NSWCCA 267 at [41] with regard to this specified ratio. This offending was count 4 in the indictment to which the offender entered a plea of guilty.

20. Following the indecent assault the offender put his hands inside the victim’s shorts under her clothing and rubbed her vagina. He pushed his fingers inside her vagina and told her he was just mucking around. She began to cry. This act of digital penetration has been charged as aggravated sexual intercourse with a person between the ages of 14 and 16 years. It constitutes an offence contrary to section 66C(4) of the Crimes Act 1900. It was Count 5 on the indictment. The offender has admitted this offence and it has been placed on a Form 1 to be taken into account in determining an appropriate sentence with respect to Count 6.

21. After the digital intercourse, the offender told Victim 1 to bend over. He told her that if she did not bend over he would hurt her and her family. He also told her that no one would believe her if she said anything. She did as she was told because she was scared. After she bent over the offender pushed his penis into her vagina. This act of penile-vaginal intercourse was charged as Count 6. It was an offence of aggravated sexual intercourse with a person between the ages of 14 and 16 years. The aggravated circumstance charged was being under the authority of the offender at the time of the incident. This was, similarly to Count 5 in the indictment, an offence contrary to section 66C(4) of the Crimes Act 1900 carrying a maximum penalty of 12 years imprisonment. There was no applicable standard non-parole period at the time of the offending. The offender also pleaded guilty to this charge.

22. After he had finished having sexual intercourse with his partner’s younger sister, the offender put his hands around her neck and squeezed her throat so that she could not breathe. Whilst he squeezed her throat he said to her “this isn’t a game, no one will believe you.” This act of violent aggression is not separately charged in the Counts for sentence, but has been included in the Agreed Facts as forming a relevant part of the surrounding circumstances of the sexual offences which have been charged. Shortly after, the offender’s partner arrived back home and he left the bedroom. The victim moved out of the house in the days that followed.

23. An additional charge of a physical assault was originally included as Count 7 in the indictment at trial. Following the entering of the pleas of guilty to the identified counts in the indictment that separate charge was withdrawn.

24. Whilst the detail of the complaint is not revealed in the Agreed Facts the victim, after these events in 2009, again made complaint to her own mother. As I have indicated earlier, the victim had previously disclosed some aspects of the sexual offending against her in 2006. On this occasion, in 2009, her mother called 000 and the child was again interviewed by police. Again, for reasons which are not revealed before me, the police investigation was not pursued.

25. Whilst no other specific occurrences are the subject of charge, the last time that the offender had sexual intercourse with the first victim was in 2012.

26. The second group of offences involved the repeated sexual abuse by the offender of his natural daughter who had been born to his partner in 2006. His partner had been pregnant with this child at the time of the commission of the first offences with her younger sister, Victim 1. Between January 2014 and November 2015 when Victim 2 was 8 and then 9 years of age, the offender digitally penetrated the child’s vagina regularly. The repeated sexual abuse ended when Victim 2 and her other siblings were removed from both of their parent’s custody by Family and Community Services in November 2015.

27. The first specific incident charged occurred during this identified period. Victim 2 was having a shower when the offender came into the bathroom and took off all of his clothes except for his underwear. He then got into the shower and inserted his finger into the vagina of his naked 8 or 9-year-old daughter. The assault lasted for a short period of time before the offender got out of the shower and left the bathroom.

28. This act of digital penetration was charged as an act of aggravated sexual intercourse with a person under 10 years of age. The circumstance of aggravation is that he was a person in authority. This offence was Count 8 in the indictment presented at trial to which the offender has pleaded guilty. It constitutes an offence contrary to section 66A(2) of the Crimes Act 1900 and carries a maximum penalty of life imprisonment. A standard non-parole period of 15 years is prescribed.

29. The second specific incident charged with respect to the sexual abuse between the offender and his natural daughter occurred when the offender and his daughter were sitting on the lounge watching television whilst the rest of the family were asleep. The offender put his hand into his daughter’s pants and underwear. After touching the outside of her vagina he pushed his fingers into her vagina. Victim 2 said that she felt scared. The offender asked her if she knew what he was doing and she said “No”. The offender told her that this was what “sex” was. He told his daughter that they would “finish” later.

30. This second act of aggravated sexual intercourse with a person under 10 years was similarly charged pursuant to section 66A(2) of the Crimes Act 1900 and was Count 9 in the indictment at trial. It similarly carries a maximum penalty of life imprisonment. A plea of guilty was also entered to this count.

31. Count 10 in the indictment at trial was withdrawn following the entering of pleas of guilty to the identified counts in the indictment.

32. The third charged incident with Victim 2 occurred on an evening when the victim was watching television with her mother and siblings. The offender took her to his bedroom stating that she was tired and that she needed to go to sleep. They both lay down on the offender’s bed. The offender began kissing his daughter on her neck and on her mouth. On this occasion he again put his hand underneath the child’s clothing and inserted his fingers into her vagina. The digital intercourse continued for a few minutes before Victim 2 made an excuse that she needed to go to the toilet.

33. This episode was similarly charged as aggravated sexual intercourse with a person under 10 years of age pursuant to section 66A(2) of the Crimes Act 1900. It was Count 11 in the indictment at trial to which a plea of guilty was entered. As indicated earlier it carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

34. In August 2018, Victim 2 disclosed the sexual abuse at the hands of her father to another relative. She was then aged 12. Police were contacted and on 30 August 2018 Victim 2 provided a detailed statement to police. In October 2018 the offender was arrested. He declined the offer of an interview with police. He was already in custody, bail refused, on different charges to which I will refer in detail later in these Remarks.

35. In November 2019 police re-interviewed Victim 1 who had previously provided statements in 2006 and 2009. In 2019 the offender was formally arrested with respect to the offending which was alleged against Victim 1. As I have indicated he was already in custody. On this occasion he accepted the opportunity to be interviewed. In a recorded interview he denied the allegations made by Victim 1.

36. The proceedings with regard to the separate complainants initially proceeded independently. In March 2009 the offender was committed for trial with respect to a number of charges relating to Victim 2, his natural daughter. That trial was originally listed for hearing on 3 February 2020.

37. The charges with respect to Victim 2 were still in the Local Court by February 2020. The Crown indicated an intention to include ex officio counts in the indictment with regard to Victim 1 and to proceed to trial with charges relating to both victims and relying upon tendency and cross-admissibility regarding the separate victims.

38. The trial in February 2020 was vacated and in due course the trial came on before me and a jury in November 2020 as I have detailed earlier.

OBJECTIVE SERIOUSNESS OF OFFENDING      

39. The varying objective seriousness of the overall sexual offending is reflected in the different charges and the differential in maximum penalties. However, within the specific types and categories of sexual offending, it is appropriate to form a view as to where, in the spectrum of offending for such a type of offence, the particular factual circumstances are appropriately placed. Most of the offending to which the pleas of guilty have been entered fall within a broad mid-range of objective seriousness. Some were accompanied by a degree of physical aggression and threats which elevate the level of objective seriousness. I will identify my assessment with respect to the individual counts in a table at the conclusion of these Remarks.

VICTIM IMPACT STATEMENTS

40. Each of the victims wrote a victim impact statement. Victim 1 read her own statement in court. She described having become “acutely aware of how terrifyingly difficult this statement is to write and yet read aloud to people I do not know.”

41. She described her sense of “overwhelming anxiety” and how she endeavours to “wake up every day to fight, to feel like I have a place in this world.” She described the debilitating “guilt and shame” that she feels and the resentment that it “does not belong to me, as I did not do this to myself. I was powerless, I was a child…”

42. She described how the offender “repeatedly took what was not his to take.” In emotionally moving terms she said that just touching the surface of what the offender had stolen from her life included:

“my innocence, my virginity, my health, my mental health, my capacity to ever feel safe, my sleep constantly haunted by nightmares, flashbacks haunt my daily life, my dreams of becoming a paediatrician, my ability to parent my own child, I was powerless, I was a child…”.

43. Victim 1 described having attempted to take her own life. She concluded her heartfelt statement by saying “I hope [the offender] does some kind of treatment in gaol, so that he cannot do this to another innocent child again.”

44. Victim 2 also wrote a victim impact statement. She was, as I have repeated earlier in these Remarks, the natural child of the offender. She was emotionally unable to read the statement aloud in court and it was read by a witness support person. She described that what had happened “really messes with you”. She told the court “I never really got to know what a ‘real’ childhood looked or felt like, and it hurts seeing other kids with THEIR own parents because all my life I wanted that.” Victim 2 described that what had happened to her had affected her friendships and relationship with others. She said that she “had really bad trust issues with everyone, and couldn’t get close with other males, including my own family.”

45. Victim 2 described that her mental health had been “really messed with” and how difficult it had been to hold in so much emotion. She said that she had endeavoured to do so both for her own sake and to put less stress on her family. She concluded by saying “in my own opinion I have been the strongest girl through it all and for me to write this on my own is a lot and I’m not sorry you have to go through this dad but you 100% deserve it and I’m not doing this for me I’m doing it for (names redacted) ”. I infer that this was a reference to the names of her female siblings.

46. It is appropriate to be reminded that the court effectively takes judicial notice of the likely profound and long-lasting effect of childhood sexual abuse. The specific weight to be given to Victim Impact Statements is to be tempered by the fact that they are not on oath and are not subject to cross-examination. I note the detailed analysis in this regard by Simpson J in R v Tuala [2015] NSWCCA 8.

47. The Court of Criminal Appeal summarised the position as to harm caused by the sexual abuse of a child in R v Gavel (2014) 239 A Crim R 469 at [110]:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can do”. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364[3], 368–372 [26]–[39].”

48. The Victim Impact Statements in the present matter clearly operate to confirm the psychological research and the common experience of the courts.

SUBJECTIVE FEATURES OF THE OFFENDER

49. The offender was approximately 28 or 29 years of age in 2005 at the time of his first offending with respect to Victim 1, the then 11-year-old sister of his pregnant partner. The offending conduct with that child continued over a period of approximately 6 to 7 years. The last act of sexual intercourse with Victim 1 was in 2012 by which time the offender was approximately 35 or 36 years of age.

50. The sexual abuse of his own daughter, Victim 2, commenced in either 2014 or 2015 when the child was 8 or 9 years of age. The offender by that time was approximately 37 or 38. The abuse occurred during a period of approximately two years. He is now 44 and has been held in custody since being charged in 2018.

51. The offender did not give evidence before me. A number of certificates of attainment with respect to courses completed by him whilst in custody were tendered. I have also received a report from a Consultant Forensic Psychiatrist, Dr Antonio Simonelli, which provides an overview of the subjective background of the offender. The only additional material casting light on his personal background is his Criminal History and Custody Record. I propose to deal with that in more expanded detail than normally necessary in an endeavour to illuminate the offender’s subjective background.

52. The offender grew up in Blayney in country New South Wales. He has several siblings. According to the account provided to the psychiatrist, his parents split up when he was around three years of age. He lived with his mother and described having been “put up as uncontrollable” because he had truanted from school and started consuming drugs and alcohol from the age of 9.

53. He was placed in the Boys’ Home, ‘Minda’, at the age of 10. He told the psychiatrist that he had been assaulted whilst resident in the Boys’ Home. At the age of 11 he left ‘Minda’ and thereafter lived with his father and stepmother. He described the time living with his father as traumatic and abusive. He told the psychiatrist that he was regularly physically assaulted by his father. He described being physically assaulted in the early hours of the morning every weekend when his father was intoxicated. The assaults continued until the offender, in his late teens, would “bash him back”. According to the offender’s account, his father thereafter restrained from assaulting him.

54. Between the ages of 13 and 15, the offender reported that his father’s friend had sexually assaulted him. He described his stepmother as being the only one in his life that showed him any care. The offender said he had remained in contact with his stepmother throughout his life. He described that he did not get along with his biological mother. His father had died in approximately 2013.

55. The offender said that he started working at the age of 14 whilst living in Blayney with his father. The nature of that work is not revealed. He described having moved to Victoria at some stage where he was employed salting sheepskins for approximately six months. I note in passing that the offender came into contact with the criminal justice system in Victoria.

56. The offender told the psychiatrist that he had commenced intravenous drug use with amphetamine (“speed”) at about the age of 14. He claimed continuing with this drug habit 3 to 4 times a week throughout his life. He also said that he did not use drugs whilst in custody.

57. It is unclear at what stage he actually left school. While otherwise to be completely disregarded pursuant to the provisions of section 15(1) of the Children (Criminal Proceedings) Act 1987, I do note that his record indicates that he was charged by police in Blayney in November 1990 when he would have been 14 years of age with respect to being a passenger in what was presumably a stolen vehicle. The only relevance of that entry in his record is that when the matter was dealt with before the Camden Children’s Court in August 1991, which would have been shortly before his 16^th birthday, the Children’s Court magistrate imposed a condition in the orders which were made that the offender attend school regularly. Other than the query as to when it was that he left school, I disregard this entry in his criminal history.

58. Be that as it may, his first relevant interaction with the criminal justice system would appear to have been in 1995, shortly before his 19^th birthday. He was charged in Blayney with stealing a motor vehicle and also receiving, as well as being an unlicensed driver. Following those charges in August 1995 he would appear to have been released on bail. He was then arrested in Orange in October 1995 and charged with an armed robbery. He was remanded in custody with respect to that charge.

59. In November 1995 he was sentenced in Blayney Local Court to concurrent fixed terms of six months imprisonment with respect to the charges of stealing the motor vehicle and receiving.

60. In February 1996 he was sentenced in Bathurst District Court by Judge Shillington to 4 years imprisonment with 18 months non-parole for the robbery whilst armed. The sentence was backdated to the date of arrest in October 1995 and totally subsumed the six months which had been imposed in the Blayney Local Court for the motor vehicle stealing.

61. In April 1997 the offender was released on parole. He was still only 20 years of age.

62. In July 1997 he was charged in Campbelltown with two counts of destroying or damaging property. In due course he was fined for those offences and ordered to pay compensation. In October 1997 he was charged with using offensive language at Blayney and similarly fined.

63. In January 1998 he was charged with an offence of violent disorder. He failed to appear at Blayney Local Court in February 1998 and was convicted in his absence. A warrant for his arrest was issued.

64. In May 1998 he was again charged in Blayney with behaving in an offensive manner and using offensive language. As a consequence he was dealt with for breaching the parole which he was still subject to with respect to the armed robbery sentence. He went back into custody in July 1998 before again being granted parole at the end of August 1998.

65. In describing his personal background to the psychiatrist, the offender said that he had two adult daughters who are now aged 24 and 23. Each of them was born to a different mother and, by reference to their ages, I would presume that they were conceived in approximately 1997 and 1998 when he would appear to have been not in custody and generally in the Blayney region.

66. In May 1999 he was arrested and charged with common assault in Blayney. He was refused bail and in June 1999 was sentenced in Bathurst Local Court to 6 months imprisonment. Following his release in November 1999 he again committed an assault, this time occasioning actual bodily harm, in March 2000.

67. He was arrested and charged with that assault in May 2000, again in Blayney. He was refused bail and the parole which he was still serving was again revoked. He remained in custody until he was released in October 2000.

68. Following his release he was again arrested and charged in December 2000 with a number of offences including larceny, goods in custody, custody of a knife in a public place, and possessing implements to enter and drive a conveyance. He was bail refused for approximately a month before being granted bail in January 2001. In February 2001 he failed to appear at Sutherland Local Court with respect to those charges. He was convicted in his absence and a warrant was again issued for his apprehension.   

69. He was arrested in Campbelltown the next day and charged with stealing a motor vehicle, driving it recklessly or furiously, driving whilst disqualified and possession of implements to enter and drive a conveyance. He would appear to have been granted bail but was subsequently arrested again in May 2001.

70. On that occasion he was charged with possession of prohibited drug for which he was fined and again charged with driving whilst disqualified. At Campbelltown Local Court he received a series of concurrent sentences with respect to the multiplicity of offending where warrants for his apprehension had been issued, as well as for the more recent offences. Most of the offences were given a one month term of imprisonment whilst two of them received two months terms. An offence committed in February 2001 of breaking and entering a dwelling with intent to commit a serious indictable offence resulted in a term of imprisonment of three months. After serving the three months, the offender was again released in August 2001. He had by now attained the age of 24.

71. Following his release he committed a number of break, enter and steal offences in August and September 2001. These remained uncharged until the following year. In October 2001 he committed a further assault occasioning actual bodily harm. The criminal history is unclear as to when he was actually charged with that offence.

72. In November 2001, shortly after his 25^th birthday, he was again arrested and charged with stealing a motor vehicle and possession of implements to enter and drive a vehicle. For reasons which are less than opaque, in the course of a period of custody, presumably bail refused, and an appearance at court on 1 December 2001, the offender’s custody record appears to diverge into two separate records with two different MIN identifiers. He is described as having multiple identities and numerous aliases. In due course he appeared for sentence for those offences in January 2002. He was sentenced to imprisonment for nine months which was suspended pursuant to a section 12 bond.

73. The following month, February 2002, he was again arrested and charged with respect to the break, enter and steal offences which had been committed in August and September 2001. He remained in custody and in May 2002 was sentenced to 2 months imprisonment in relation to the assault occasioning actual bodily harm which he had committed in October 2001. That sentence expired in April 2002. He remained in custody, presumably bail refused on the break and enter offences, until being released in July 2002, apparently on bail.

74. In October 2002 he was arrested and charged with supply a prohibited drug. After approximately a month in custody he was referred to the Drug Court Program. In November 2002 he went back into custody for reasons which are difficult to divine. I can but presume that it may have been for non-compliance with the terms of a conditional release.

75. In January 2003 he was sentenced at the Parramatta Drug Court to a series of concurrent sentences relating to the steal motor vehicle, drive recklessly or furiously and possess implements to enter a conveyance. The longest sentence, of 18 months, was to expire on 20 May 2004.

76. However on 4 May 2004 he was sentenced in Campbelltown District Court with respect to the supply prohibited drug offence with which he had been charged in October 2002. He was sentenced to 16 months imprisonment with a non-parole period of six months commencing at the expiration of the sentence that he was then serving and which was due to expire in about three weeks.

77. He was yet again released to parole on 20 November 2004. During his time in custody in 2003 and is 2004 he had six recorded disciplinary entries including four for fighting and one for disobeying a direction. At the time of his entry to parole in November 2004 he was 28 years of age.

78. By my calculation, after turning 18 years of age, he had spent more than half of the following 10 years in custody. By the time of his first offence at almost 19 years of age and his release to parole at 28 years of age he had spent a little over 3 ½ years at liberty At in the community. Approximately 5 ½ years out of 9 had been spent behind bars.

79. Following his release into the community at the end of 2004, he would appear to have avoided any further interaction with law enforcement for the types of offending which had been accumulated in the course of his criminal history for at least a number of years. However, undetected at that stage, he commenced the relationship with his partner in early 2005 and commenced the ongoing course of sexual offending and abuse against his partner’s younger sister, Victim 1, that same year.

80. His own daughter, Victim 2, was born in early 2006. In June 2006 he was charged with driving an uninsured and unregistered vehicle as well as driving having never held a licence. The offence of never having held a licence was prosecuted as a first offence despite his previous convictions for driving without a licence and also driving whilst disqualified. He had previously been charged and fined for driving without a licence in 1995 and 1998 as well as serving a term of imprisonment for driving whilst disqualified in 2002/2003. Whether he was dealt with under a different name or whether there is some other reason for this anomaly is not apparent to me.

81. In July 2006 the various traffic matters came before Liverpool local Court. He was fined for the first offence of not being licensed whilst the offences of driving an uninsured and an unregistered vehicle were dismissed pursuant to section 10. One can only assume that the presiding Magistrate was not provided with an accurate past criminal history and driving record.

82. The following month, August 2006 he was again stopped and charged with driving an uninsured and unregistered vehicle and again with driving having never held a licence. On this occasion it was charged as a second offence of that type. On this occasion he was granted bail. When the matter came before Fairfield Local Court in September 2006, he failed to appear and warrants for his apprehension were issued including a warrant for failing to appear in accordance with his bail undertaking.

83. Despite warrants being issued it would appear that he was not apprehended with respect to those matters until August 2008. However, in August 2007 he had been arrested and charged with assault occasioning actual bodily harm and destroying or damaging property. The warrants were apparently not executed at that point. He subsequently failed to appear on the assault and damaging property charges at Campbelltown Local Court and additional warrants for his apprehension were issued.

84. In May 2008 he was charged with stealing a motor vehicle and, again, driving whilst never having held a licence. He was bail refused before being granted bail at court after approximately one week.

85. On 1 October 2008 he was arrested and charged with contravention of a Domestic Apprehended Violence Order. He was refused bail and in due course sentenced to 1 month imprisonment. He was released back on bail for the outstanding matters after 30 days imprisonment.

86. On 5 March 2009 he again failed to appear and fresh warrants were issued. He was arrested on 20 March 2009 pursuant to the numerous and various warrants and shortly thereafter was variously fined with respect to the multifarious motor vehicle matters. He received a sentence of imprisonment of six months for the theft of a motor vehicle. He this was also sentenced to 12 months with a six-month non-parole period for the assault occasioning actual bodily harm which had occurred in March 2007. The offence of destroying or damaging property on the same occasion was also the subject of a three month term of imprisonment which was to be served concurrently. Appeals against the severity of these sentences were dismissed at Campbelltown District Court.

87. The offender was released in September 2009. In January 2010 he was again arrested for the theft of a motor vehicle, driving recklessly or furiously and driving whilst disqualified. He was also charged with goods in custody. He was bail refused until March 2010 when the matters were dealt with in the Parramatta drug court. Sentences of imprisonment were imposed with respect to each of the matters with two of the sentences being for 18 months. All sentences were suspended pursuant to the provisions of the Drug Court Act 1998.

49. In April 2010 he was returned to custody for approximately three weeks. The criminal history does not reveal the reason, although it is likely that there was a breach or non-compliance with the terms of his conditional liberty.

50. He was again released at the end of April before being brought back before the Drug Court in August 2010. In August 2010 the Drug Court revoked the suspension of his terms of imprisonment and he went back into custody until those sentences expired in June 2011.

51. As noted earlier in these Remarks, his sexual offending with Victim 1 continued during his periods of non-custody. Sexual intercourse with her finally ceased in 2012.

52. In October 2012 he was arrested and charged with common assault. In March 2013 he was convicted and fined at Campbelltown Local Court and placed on a section 9 bond to be of good behaviour for 18 months.

53. In the period of 2014 and 2015, the sexual abuse of his own daughter, Victim 2, occurred. In October 2015 he was again arrested and charged with common assault. At Campbelltown Local Court in January 2016 he was again placed on a section 9 bond with supervision by community corrections. He was required to obey all reasonable directions for counselling, drug and alcohol, domestic violence, anger management and educational development. I have no material before me with respect to any such courses or counselling, nor any information with respect to his compliance or non-compliance with such directions.

54. In December 2017 he was arrested and charged with assault occasioning actual bodily harm and with intentionally choking a person with recklessness. He was granted bail to appear at the Mount Druitt Local Court in August 2018.

55. Whilst on bail he attended an Australian Red Cross course described as “Save-a-Mate Alcohol and Other Drugs Emergencies Course with CPR Demonstration.” He received a certificate of attainment dated 12 April 2018.

56. In June 2018 he was arrested and charged with respect to a contravention of an apprehended domestic violence order. It would appear that he was granted bail with respect to this contravention.

57. On 15 August 2018 he failed to appear in accordance with the bail which had been granted for the assault occasioning actual bodily harm and the intentional choking offences. He was convicted with respect to his failure to appear and a warrant was issued for his arrest.

58. On 16 August 2018, that is the following day, the offender was arrested and charged with respect to his contravention of a Domestic Apprehended Violence Order. He was bail refused with respect to that matter and also in relation to the outstanding warrants.

59. Whilst I have no material before me with respect to the detail of the apprehended violence order nor any information with respect to the contravention , it would appear that his daughter, Victim 2, disclosed the sexual abuse which she had suffered at the hands of her father at around this time. She provided a detailed statement to police on 30 August 2018.

60. In October 2018 the offender was charged with the sexual offending against Victim 2, his daughter. He remained bail refused with respect to all matters.

61. Whilst in custody and in the lead up to his appearance in the Local Court for the variety of summary proceedings, the offender undertook a number of courses and programs which were available in gaol. I will set out the detail of these because the various Certificates of Attainment and the detail of the courses undertaken by him were tendered on his behalf in these present sentence proceedings.

62. In November 2018 he was awarded a Certificate of Acknowledgement at the John Marony Correctional Centre “For demonstrating a positive attitude with a willingness to participate in a polite respectful manner.”

63. In December 2018 he attended the Health Survival Program at the Correctional Centre. He also attended a lecture or course conducted by TAFE NSW in two aspects of Warehousing Employment Preparation, namely how to shift materials safely using manual handling methods, and how to follow work, health and safety procedures. He received a Certificate of Attainment of competency for that course.

64. The offender also attended sessions with respect to 5 of the Units from the Certificate III in Landscaping. In January 2019 the Education Services Coordinator provided a letter for presentation at court regarding those five units which he was either undertaking or was said to have completed – they included planting trees and shrubs; assisting with soil sampling; work health and safety processes; workplace communications; and environmentally sustainable work practices. He was said to be participating in those courses “with the hope that he will be able to improve his skills and knowledge in this area and increase his chances of employment on return to the community.”

65. Also in January 2019 he obtained a Certificate of Attainment for demonstrating competency in how to operate a personal computer.

66. Later in January 2019 he was sentenced at Mount Druitt Local Court to terms of imprisonment with respect to the outstanding charges of assault occasioning actual bodily harm and intentionally choking a person. Each of those offences was subject to 14 months imprisonment with a non-parole period of seven months. The sentences were backdated to 16 August 2018 and the non-parole periods were to expire on 15 March 2019. On the same day, the Magistrate at Mount Druitt Local Court imposed Community Corrections Orders for a period of two years for the two separate breaches of the Apprehended Domestic Violence Orders. Those Community Corrections Orders commenced on the day that they were imposed and included supervision by Community Corrections. The supervision was intended, in a practical sense, to operate from the time that the offender would have been eligible for parole in March 2019.

67. Of course, he was not released to parole as a consequence of bail not been granted for the serious sexual offences with which had been charged relating, at that stage, to Victim 2 only.

68. Included in the material tendered on behalf of the offender are the TAFE NSW Transcripts of Academic Record for May and July 2019 which, regrettably, show that the offender was assessed as “Not Competent” with regard to each of the five units he had been attending in the Landscaping Certificate course.

69. In November 2019, Victim 1 made a further statement to police. The offender was charged with relation to the offending against her in December 2019. As indicated earlier in these Remarks, the separate offences with respect to Victim 1 were subsequently included by virtue of ex officio charges in the joint indictment presented at trial.

70. The offender has remained bail refused with respect to the sexual offending from the dates with which he was respectively charged regarding each of the victims.

71. In the opinion of the consultant forensic psychiatrist Dr Simonelli, the offender presents with a pattern of repeat offending which was characteristic of Conduct Disorder as a juvenile and Anti-social Personality Disorder as an adult. Dr Simonelli also expressed the opinion that there were traits of Borderline Personality Disorder. He was of the view that the developmental disruptions and emotional deprivation in the offender’s upbringing “facilitated the development of chronic drug abuse disorders that have persisted throughout his life and contributed to a life-long cycle of reoffending and incarceration.”

72. The offender denied the features which would give rise to an assessment of an underlying paedophilic disorder. He described having struggled with depression throughout his life and having attempted suicide on multiple occasions. Episodes of particular crisis followed the removal of his children from his care by the Department of Community Services. He told the psychiatrist that prior to going into custody in 2018, he and his partner had seven children who ranged in age from Victim 2, who has now turned 15, down to a three-year-old.

73. The offender described having tried to kill himself three times after the children were removed by DOCS in 2015. He said that he had first started self-harming by cutting himself in his early teenage years. He said that his self-harming behaviour had continued on a monthly basis, although the last time he had cut himself was in 2016. He showed the scars on his arms and abdomen to the psychiatrist. He described the period between his release in 2011 and his subsequent reincarceration 2018 as his longest period in the community since he had turned 18.

74. During his consultation with the psychiatrist in February 2021, the offender attributed his committing of the offences to always being “on Ice” and being intoxicated and disinhibited as a result. The consultant psychiatrist expressed the opinion that chronic and severe use of amphetamines, as well as having disinhibiting effects, “may also create cognitive deficits that will impact [the offender’s] ability to appraise a social situation and correctly interpret social cues which would then help create empathy with the victim and interrupt deviant behaviour.”

75. While Dr Simonelli, on the one hand, thought that the “general prognosis” for the offender was fair, on the other he expressed the opinion that the offender presented an ongoing risk to the community. He thought that the offender should engage in drug and alcohol and sex-offending counselling whilst in custody. I should note in passing that there is no evidence of any such steps having been taken to the present time.

76. As indicated earlier in these Remarks, the offender gave no evidence before me.

77. There is reference in the psychiatric report to long-term drug use having had a possible cognitive effect on the offender. I am not satisfied on the balance of probabilities on the evidence before me that such possibility had any causal connection with the commission of the offences.

DEFENCE SUBMISSIONS

117. Counsel for the offender, Mr Roff, provided the court with written submissions. Those submissions set out standard non-parole periods for each of the various charges preferred pursuant to section 66C of the Crimes Act 1900. It is appropriate to note that the standard non-parole periods referred to in the defence Written Submissions with respect to the section 66C charges have no application, as the amending legislation which introduced standard non-parole periods for these various offences only applied prospectively: see Crimes Legislation Amendment (Child Sex Offences) Act 2015; R v MM (No 3) [2018] NSWDC 529 ; cf.BR v R [2015] NSWCCA 255.

118. In his written submissions, counsel for the offender pointed to the various aggravating and mitigating factors which were said to be relevant. He dealt with the offender’s prior criminal history in a general overview fashion and submitted that it did not operate as an aggravating feature but rather disentitled the offender to leniency, particularly as there were no similar offences on his record.

119. Mr Roff submitted that the statutory aggravating factor of offences occurring at a time that the offender was subject to conditional liberty was a factor in respect of which caution ought to be exercised. In his submission such an approach was warranted because of the age of the offences and the imprecision around the dates of the offending conduct. He submitted that the situation was not entirely clear.

120. Counsel for the offender made reference to the presence of a child under the age of 18 with respect to some of the offences and the circumstance that the offending conduct occurred in the home of the victims. He submitted that the statutory aggravating factors in these regards “might be applicable”. He conceded with respect to Count 6 that the threatened use of violence might be an applicable factor of aggravation with regard to this particular Count.

121. Defence counsel pointed to two statutory mitigating factors. First, that the offending was not planned and effectively involved spontaneous acts of an opportunistic nature, each of which was relatively brief in duration. Second, the entering of the plea of guilty.

122. With respect to the objective seriousness of the offending, the defence submission was that Count 4, the indecent assault touching the breasts on the outside of the clothing would fall towards the lower end of any theoretical range.

123. The defence identified other offending by reference to the nature of the sexual interaction. Counts 1 and 5, the latter of which was placed on a Form 1, related to Victim 1 and were acts of digital penetration. With respect to Count 1 it was submitted that it would fall below the middle of any theoretical range “but perhaps not appreciably so.” With respect to Counts 8, 9 and 11, each of which involved Victim 2 and were acts of digital penetration, it was submitted that the objective seriousness would “fall at or around the middle of any theoretical range.”

124. Count 2 was identified as an act of cunnilingus and had been placed on a Form 1 to be taken into account in sentencing for Count 3, an act of penile- vaginal intercourse which immediately followed the oral sex. The defence submission was that Count 3 would “fall in or slightly above the middle of any theoretical range.”

125. The other Count involving penile-vaginal intercourse, namely Count 6, was submitted to fall at or around the middle of the range of objective seriousness.

126. The defence submissions acknowledged that prospects of rehabilitation, particularly noting the concerns expressed by the defence forensic psychiatrist about the risk the offender posed to the community, would be guarded. The ultimate submission was that there should be a significant amount of concurrency taking into account the principle of totality and that an appropriate sentence should not be one that was “crushing”. The defence also submitted that the court should make a finding of special circumstances.

CROWN SUBMISSIONS

127. The Crown provided Written Submissions in addition to oral submissions. The Crown reminded the court that the maximum penalty provided a yardstick which invited comparison between the worst possible case and the case before the court at the time: Markarian v The Queen (2005) 228 CLR 357 at [31]. The Crown submitted that the timing of the pleas of guilty and the application of section 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 prescribed an appropriate discount of 5%.

128. The Crown similarly reminded the court of the application of section 25AA Crimes (Sentencing Procedure) Act and, in particular, the judgment of Price J in R v Cattell [2019] NSWCCA 297. I should note in passing that I am conscious of the relevant section and I am familiar with, and will apply, the steps indicated by Justice Price in Cattell.

129. The Crown’s Written Submissions included appropriate and well known statements of general principle with respect to sentencing for sexual offences against children. There is no necessity to repeat those general statements of principle in these Remarks although I should clearly indicate that I am aware of them and will apply them appropriately in the instinctive synthesis which I will undertake.

130. The Crown made submissions regarding the objective seriousness of each of the individual charges. Count 1 involving digital penetration the Crown submitted would fall around the middle of the range of seriousness for offences of this type.

131. Count 2 was placed on a Form 1 attached to Count 3. It involved an act of cunnilingus for several minutes following which the offender had the penile-vaginal intercourse which constituted Count 3. The Crown submitted that this offending fell above the middle of the range for offences of this type.

132. Counts 4, 5 and 6 occurred on the same occasion. The Crown submitted that Count 4 fell below the mid-range but that counts 5 and 6 fell “well above the middle of the range.” Count 5 involved digital penetration whilst Count 6 was an act of penile-vaginal intercourse. It was accompanied by oral threats and an act of physical intimidation immediately after the act.

133. Counts 8, 9 and 11 each involved acts of digital penetration with Victim 2, the offender’s own daughter. In the crown submission each of these offences fell “at around the middle of the range of seriousness for offences of this type.”

134. The Crown relied upon the actual or threatened use of violence as an aggravating factor in a determination of the proper sentence with respect to the incident comprising counts 4, 5 and 6.

135. The Crown specifically eschewed reliance on a number of statutory aggravating features including the offender’s record of previous convictions; some of the offences being committed in the presence of a child under 18; the injury, emotional harm, loss or damage being substantial; and the offender being on conditional liberty at the time of the commission of some of the offences. For reasons which I will refer to in due course, those concessions were properly made.

136. After reminding the court of the appropriate application of principle with respect to questions of accumulation, concurrence and totality the Crown submitted that there was no alternative to the imposition of full-time imprisonment. The Crown submitted further that there were no overriding factors that would cause the court to make a finding of special circumstances.

DETERMINATION

137. The offender has admitted his guilt with respect to two sequences of sexual offending against children who, at the relevant times, were in his care. As I have noted, the first victim was the 11-year-old younger sister of his then pregnant partner. He abused the position of trust in which his partner left him with her younger sister on the occasions that she left them alone. The sexual abuse of this child continued over a period of years.

138. The second victim was his own daughter who was eight or nine years of age when the sexual abuse commenced. The offending occurred, on the occasions identified, within a period of a little under two years. His conduct towards his daughter was “the antithesis of the close and loving relationship” that she was entitled to expect from her father: see the remarks of Bellew J in FD v R [2013] NSWCCA 139 at [150].

139. It is important to bear in mind in describing in such a summary fashion the overall criminal conduct of the offender, that in order to properly undertake the process of instinctive synthesis for the purpose of passing sentence one must not be distracted simply by an overall consideration of the conduct. It is necessary and required that the Court determine an appropriate sentence for each of the offences. The Court must then consider issues of accumulation, concurrency and totality with respect to the overall criminality. I must keep in mind the statutory guide-posts – namely, the maximum penalty applicable to each offence and the standard non-parole period which has been imposed by Parliament and where applicable.

140. The nature of the relationship between the offender and each of his victims placed him in a position whereby each of the offences may properly be described and categorised as demonstrating an abuse of trust. Some of the offences charged, as I have already observed, have as an element of the offence itself an aggravating element that the victim was under the authority of the offender.

141. The Chief Justice of New South Wales, Bathurst CJ (James and Johnson JJ agreeing) in MRW v R [2011] NSWCCA 260, noted that an abuse of a position of trust or an abuse of authority as particularised in the aggravating factors set out in the Crimes (Sentencing Procedure) Act1999, s 21A(2)(k), relate to distinct concepts. In the circumstances of that case it was held to be open to the sentencing judge to have taken the breach of trust by a father towards his child into account, notwithstanding that an element of the offence charged was that the child was under the father’s authority. However, I note that the Chief Justice counselled (at [78]):

“However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing judge does so, error may result with the prospect of intervention by this Court.”

142. I should make it clear that I am conscious of the qualitative difference between the notion of a breach of trust and the notion of being under authority, see R v Slater [2003] NSWCCA 178 at [53]-[54] per Shaw J (Grove J agreeing), and I will be cautious in not giving undue weight to the clear abuse of the position of trust with respect to those counts in which the abuse of authority is an element of the offence : see also the observations of R A Hulme J in Franklin v R [2016] NSWCCA 319 at [63]-[75].

143. A further factor of aggravation requiring consideration arises where the injury or emotional harm suffered as a result of a criminal offence is “substantial”. In order to be substantial the harm must be established beyond reasonable doubt to be greater or more deleterious than might ordinarily be expected for the specific offence: see R v Youkhana [2004] NSWCCA 412 per Hidden J at [26]; R v Bain [2006] NSWCCA 79; 161 A Crim R 36 per Sully J at [10]-[15]; R v Tuala [2015] NSWCCA 8 per Simpson J at [51]-[82].

144. I acknowledge the courage of the two victims in the present matter in preparing their respective Victim Impact Statements. The emotion and ongoing distress involved was evident in the reading of those documents, both personally by victim 1 and through the witness support person for Victim 2. The Courts have long recognised the ongoing psychological damage occasioned to victims as a consequence of childhood sexual abuse. The current victims are no exception to that recognition by the courts. It is appropriate to acknowledge not only their courage but also the serious psychological harm they have each suffered. It suffices for present purposes to record that I am not satisfied beyond reasonable doubt with respect to the additional and statutorily aggravating consideration required regarding section 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999.

145. I should indicate I do take into account that the relevant offending did take place at the home of the respective victims. I draw no distinction for this purpose between a constant and permanent residence on the one hand, and a place of temporary residence on the other where a child, like Victim 1, might be staying for a few weeks or months with a relative because of domestic circumstances. To a degree this overlaps with the concept of being under authority and the fundamental breach of trust which is implicit in the opportunity for the commission of the offences. Every child ought to be entitled to feel safe and secure in the circumstances, both physical and familial, in which each of these victims found themselves.

146. The situation regarding a further potentially aggravating feature, namely the commission of the offences in the presence of another child is not, despite submissions from counsel for the offender to the contrary, established in accordance with the expressed interpretation of the relevant subsection by the New South wales Court of Criminal Appeal: see Gore v R [2010] NSWCCA 330; (2010) 208 A Crim R 353 per Howie J at [100],[104]-[106]; R v Seymour [2012] NSWSC 1010 per Price J at [43]-[44]; Alesbhi v R [2018] NSWCCA 30 per R A Hulme J at [53]-[56].

147.  As the Crown correctly conceded, there was no evidence that the children who were otherwise physically on the premises either saw, heard, or were even aware of the offending conduct.

148. As I have already noted, the belated plea of guilty entitles the offender to a discount of 5% on an otherwise appropriate sentence. It constitutes, to some degree, an indication of remorse and contrition. I find, however, that the offender’s prospects of rehabilitation are, as accepted by his counsel, guarded. That is, of course, a judicial description of a genuine level of reserve regarding the safety of the community in the future. In the present matter, the forensic psychiatrist retained on behalf of the offender held the same concerns.

149. It is appropriate to recognise the appalling personal background of the offender. In the absence of any evidence regarding the circumstances of his upbringing with his mother following the separation of his parents, it is difficult to imagine how a nine-year-old boy in regional New South Wales came to commence the abuse of illegal drugs at such an age. His interactions with authority ultimately descended to his incarceration for a substantial majority of his adult life for his repeated infractions of the criminal law.

150. His claimed abuse at the hand of his father’s friend, and the likely assaults in the Boys Home, provide a fertile ground for psychological analysis regarding the motivation for a subsequent abuser of children. The law in this State, and indeed around the world, operates for the protection of young children, whatever the motivation and background of the perpetrators of sexual abuse upon them may be. I am, however, conscious of the fact that the circumstances of his own upbringing may well provide some level, however limited, of understanding of the offender’s commission of repeated criminal conduct throughout his adult life. I do not suggest, and it has not been submitted, that Bugmy and Fernando principles have any relevant application.

151. Offences of the kind with which we are concerned presently, carry with them the necessity for a strong message of general deterrence. Personal deterrence, particularly in circumstances of a continuing concern for the safety of the community, is also of significance.

152. I propose to proceed, pursuant to the provisions of section 53A of the Crimes (Sentencing Procedure) Act 1999, by imposing an aggregate sentence. The circumstance of there being two separate victims with discrete episodes of sexual abuse against each of the victims necessitates a level of accumulation in the appropriate sentences. There is, of course, a necessary consideration of the principle of totality, and some degree of concurrence, particularly in circumstances where various acts of the sexual offending occurred during the same incident.

153. I will incorporate a table at the end of these Remarks setting out the individual offences, the relevant maximum penalties and, where appropriate, the standard non-parole period, my assessment of the objective seriousness of each offence, and the indicative sentence in each case.

154. The indicative sentences, taking into account a 5% discount, are as follows:

With respect to Victim 1:

Count	Offence	Section of Crimes Act 1900	Max penalty	SNPP	Objective seriousness	Indicative sentence
1	Digital intercourse – 11 year old child under authority	s.66C(2)	20 years	N/A	Mid-range	7 years 7 months
2 [Form 1 attached to count 3]	Cunnilingus – child aged 11 or 12	s.66C(1)	16 years	N/A	N/A	N/A
3	Penile-vaginal intercourse immediately following Count 2	s.66C(1)	16 years	N/A	Above mid-range	11 years 4 months
4	Aggravated indecent assault – rubbed breasts on outside of clothing – child aged 15 years	s.61M(2)	10 years	8 years	below mid-range	Head sentence: 22 ½ months NPP: 17 months
5 [Form 1 attached to count 6]	Aggravated digital intercourse following acts in Count 4	s.66C(4)	5 years	N/A	N/A	N/A
6	Aggravated penile-vaginal intercourse following the digital intercourse in Count 5, accompanied by threats and intimidation	s.66C(4)	5 years	N/A	Above mid-range	8 years 6 months

With respect to Victim 2:

Count	Offence	Section of Crimes Act 1900	Max penalty	SNPP	Objective seriousness	Indicative sentence
8	Aggravated digital intercourse – child aged 8 or 9	s.66A(2)	Life imprisonment	15 years	Mid-range	11 years 4 months
9	Aggravated digital intercourse – child aged 8 or 9	s.66A(2)	Life imprisonment	15 years	Mid-range	11 years 4 months
11	Aggravated digital intercourse – child aged 8 or 9	s.66A(2)	Life imprisonment	15 years	Mid-range	11 years 4 months

155. I take into account the need for some level of accumulation given the separate and repeated incidents and the fact that there are two victims and the offending occurred some years apart. The principles of totality require a level of concurrence in order to arrive at a proportionate outcome. I note the remarks of Street CJ in R v Holder (1983) 3 NSWLR 245.

156. DR, you are convicted of each of the counts in respect of which you have entered a plea of guilty.

157. You are sentenced to an aggregate term, taking into account a 5% discount, of 20 years and 10 months. I decline to find special circumstances. There will be a non-parole period of 15 years and 6 months.

158. That sentence and non-parole period will be backdated to commence from 15 March 2019. That is the date on which you would have been eligible for parole with respect to the assault and intentional choking offences for which you are sentenced at Mount Druitt Local Court on 18 January 2019.

159. The formal orders of the court are that you are sentenced to a non-parole period of 15 years and 6 months commencing on 15 March 2019 and concluding on 14 September 2034. There will be an additional term of 5 years and 4 months which will expire on 14 January 2040.

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Decision last updated: 12 April 2021