R v DRM

[2019] NSWDC 495

District Court

New South Wales

Medium Neutral Citation:	R v DRM [2019] NSWDC 495
Hearing dates:	6 September 2019
Decision date:	13 September 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For orders see [107]
Catchwords:	Multiple child sexual assault offences; multiple victims; aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Beavis v R [2018] NSWCCA 248 Cahyadi v R [2007] NSWCCA 1; 168 ACrimR 41 Hornhardt v R [2017] NSWCCA 186 Matthews v R [2018] NSWCCA 186 Porter v R [2019] NSWCCA 117 R v Gavel [2014] NSWCCA 56 R v Hall [2017] NSWCCA 313 R v Van Ryn [2016] NSWCCA 1 WAP v R [2017] NSWCCA 212
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) DRM (Offender)
Representation:	Counsel: D Phillips (Crown) D Marr (Offender)
File Number(s):	17/2027
Publication restriction:	NB s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the victims or may lead to the identification of the victims.

REMARKS ON SENTENCE

1. On 27 June 2019 at Sydney District Court, a jury returned verdicts of guilty on the following 26 Counts on the Indictment:

1. Count 1 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

2. Count 2 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

3. Count 3 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

4. Count 4 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

5. Count 5 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

6. Count 6 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

7. Count 7 – between 30 May 1998 and 31 May 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 or 8 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

8. Count 8 – between 30 May 1998 and 31 May 1999, at Russell Lea in the State of New South Wales, incited RF a person then under the age of 10 years, namely 7 or 8 years, to commit an act of indecency with the offender.

This offence is pursuant to s 61O(2) of the Crimes Act 1900 and carries a maximum penalty of 7 years imprisonment. There is no Standard Non‑Parole Period.

9. Count 9 – between 30 May 1998 and 31 May 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 or 8 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

10. Count 10 – between 30 May 1998 and 31 May 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 or 8 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

11. Count 11 - between 8 October 1998 and 7 October 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

12. Count 12 - between 8 October 1998 and 7 October 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

13. Count 13 - between 8 October 1998 and 7 October 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

14. Count 14 – between 8 October 1998 and 7 October 1999, at Russell Lea in the State of New South Wales, did attempt to have sexual intercourse with RF, a person then under the age of 10 years, namely 8 years.

This offence is pursuant to s 66B of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. There is no Standard Non‑Parole Period.

15. Count 15 – between 1 June 1999 and 7 October 2000, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 or 9 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

16. Count 16 - between 1 June 1999 and 7 October 2000, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 or 9 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

17. Count 17 - between 1 June 1999 and 7 October 2000, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 or 9 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

18. Count 18 - between 1 June 1999 and 7 October 2000, at Russell Lea in the State of New South Wales, incited RF a person then under the age of 10 years, namely 8 or 9 years, to commit an act of indecency with him.

This offence is pursuant to s 61O(2) of the Crimes Act 1900 and carries a maximum penalty of 7 years imprisonment. There is no Standard Non‑Parole Period.

19. Count 19 - between 1 June 1999 and 7 October 2000, at Russell Lea in the State of New South Wales, did have sexual intercourse with RF, a person then under the age of 10 years, namely 8 or 9 years.

This offence is pursuant to s 66A of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. There is no Standard Non‑Parole Period.

20. Count 20 - between 1 May 2000 and 31 May 2000, at Roselands in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 9 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

21. Count 21 - between 1 May 2000 and 31 May 2000, at Roselands in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 9 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is no Standard Non‑Parole Period.

22. Count 22 - between 1 May 2000 and 31 May 2000, at Roselands in the State of New South Wales, did have sexual intercourse with RF, a person then under the age of 10 years, namely 9 years.

This offence is pursuant to s 66A of the Crimes Act 1900 and carries a maximum penalty of 20 years imprisonment. There is no Standard Non‑Parole Period.

23. Count 23 – on 18 October 2003, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 16 years, namely 13 years and at the time of such assault did commit an act of indecency on RF.

This offence is pursuant to s 61M(1) of the Crimes Act 1900 and carries a maximum penalty of 7 years imprisonment. There is a Standard Non‑Parole Period of 5 years imprisonment

24. Count 24 – on 17 April 2004, at Russell Lea in the State of New South Wales, did assault PE a person then under the age of 16 years, namely 11 years and at the time of such assault did commit an act of indecency on PE.

This offence is pursuant to s 61M(1) of the Crimes Act 1900 and carries a maximum penalty of 7 years imprisonment. There is a Standard Non‑Parole Period of 5 years imprisonment.

25. Count 26 – on 17 April 2004, at Russell Lea in the State of New South Wales, did assault HE a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on HE.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is a Standard Non‑Parole Period of 5 years imprisonment.

26. Count 27 - on 17 April 2004, at Russell Lea in the State of New South Wales, did assault HE a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on HE.

This offence is pursuant to s 61M(2) of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment. There is a Standard Non‑Parole Period of 5 years imprisonment.

2. The following summary of facts is consistent with the jury verdicts in respect of each count:

Counts 1-6

3. These counts concern an occasion between 8 October 1997 and 30 November 1997 where the offender took the victim, RF, to the Opera House to see a symphony. She gave evidence that the offender picked her up from her home, and drove to the Opera House where he parked in the underground carpark. At intermission, during the symphony, he told the victim that he needed to go to the vehicle to get his jacket. When they arrived at the vehicle, he told the victim to get into the front passenger seat, as he needed to tell her something. He told her that he loved her very, very much, and that some people show love in different ways. He said she was special and he was going to show her how he loved her. He then placed his left hand on her thigh and started rubbing her thigh, then moved his hand up her thigh and started to go closer to her vaginal area. His hand was at the top of her stocking, on the top of her clothing on her vaginal area. The victim gave evidence that he put her right hand on his thigh and moved it around at the same time that he was moving his hand up, so that her hand was eventually on his crutch area as well. It was on the middle of his crutch at the front, on top of his clothing. Placing his hand on the victim comprised Count 1 on the Indictment. Placing her hand on his crutch area comprised the conduct in Count 2 on the Indictment.

At the end of the symphony, they returned to the car. The offender told the victim that they should show each other how they loved each other still, and then they did what had occurred earlier, namely, he put his hand on her thigh and he placed her hand on top of his crutch, on top of his clothing. That conduct comprised Count 3 on the Indictment. The offender then put his hand on top of her stocking, over her vagina, on top of her clothing and he was rubbing it backwards and forwards. That was the conduct comprised in Count 4 on the Indictment. The victim gave evidence that he then shuffled over a little bit and took his hand off her thigh and put his hand underneath her stockings and underwear, and placed his hand on top of her vagina, underneath her clothes, so that he was touching her skin, at the top of her vagina. That was the conduct comprised in Count 5 on the Indictment.

Whilst driving home, the victim gave evidence that the offender unzipped the fly of his pants and exposed his underwear. He told her that he loved her and that she was very special. He tried to put his hand underneath her clothing and touched the top of her vagina again, but couldn’t do so because he was driving. He put her hand on the outside of his underpants. That was the conduct comprised in Count 6 on the Indictment.

Counts 7, 8, 9 and 10

4. These counts concerned an occasion between 30 May 1998 and 31 May 1999, when the victim was at the offender’s home and was in the study, sitting in front of the computer. She gave evidence that the offender came into the study and asked her to get up off the chair, because he wanted to show her something on the computer. He pulled her by the waist on top of him, so that her bottom was on the top of his crutch area. Once she was sitting on his lap, he asked her to rub him by moving backwards and forwards on his lap. She noticed he had an erect penis, and whilst she had never seen a male penis, she described it as being hard. Sitting her on his lap was the conduct comprised in Count 7 on the Indictment. Asking her to rock back and forth on his erect penis, was the conduct comprised in Count 8 on the Indictment.

After she rocked back and forwards on his lap, the victim gave evidence that the offender touched breasts, underneath her clothing. That was the conduct comprised in Count 9 on the Indictment.

After that, he touched her on the inside of her thigh and on the top part of her crutch, on her vagina area. That was the conduct comprised in Count 10 on the Indictment.

Counts 11, 12, 13 and 14

5. Between 8 October 1998 and 7 October 1999, the victim gave evidence that she was at the offender’s home, and was playing a game with the offender’s son, EC, which involved them throwing a toy down the laundry chute, from the bathroom on the second level of the house, down to the laundry on the bottom level of the house. The game involved one of them running downstairs to collect the toy.

The victim gave evidence that she went down to the laundry. When she went through the doorway into the laundry, the offender was standing in front of her. He told her that he loved her. He then turned her around so that her back was on his stomach, and she was facing the doorway. She gave evidence that he touched her on the waist, and then was touching her vagina area. That was the conduct comprised in Count 11 on the Indictment.

The offender then unzipped his trousers and placed the victim’s hand down his pants, under his underpants, so she felt the skin of his penis. That was the conduct comprised in Count 12 on the Indictment.

The offender then touched the outside of the victim’s vagina, on the top of her clothes. That was the conduct comprised in Count 13 on the Indictment.

The offender told the victim that he loved her and that she was special. She gave evidence that after she put her hand down his pants, his hand was near her clitoris area and his put his finger around her clitoris area and she got really scared. This was the conduct in Count 14 on the Indictment. She gave evidence that he was trying to put his finger in her vagina. The incident came to an end when EC called out her name and the offender stopped and he pushed her away.

Counts 15, 16, 17, 18 and 19

6. Between 1 June 1999 and 7 October 2000, on a Saturday night, when the victim was about 9 years old, she and her sister attended the offender’s home for a sleepover. At about 7pm, when others had left the house to go and buy dinner, the offender and the victim were in the dining-room together. The offender stood behind the victim and reached around and placed his hand down the front of her underpants, touching her vagina for several minutes. She could feel his erect penis because it was close to her backside, and he touched the top of her vagina. This was the conduct comprised in Count 15 on the Indictment. It went on for five minutes and he was rubbing the top of her vagina around her clitoris area.

After that incident, they went to the lounge room and the victim gave evidence that the offender laid on the couch and asked her to lie on top of him. She was facing down on top of him and could feel his erect penis, and she was rubbing up against him. That was the conduct comprised in Count 16 on the Indictment.

The offender then asked her to go to his bedroom, where there was a further physical interaction. She gave evidence that when they got into the bedroom, he put one of his hands down her pants and rubbed her vagina, and she placed her hand inside his pants and rubbed his erect penis, as they were standing facing each other. This was the conduct comprised in Count 17 on the Indictment.

The victim then gave evidence that the offender unzipped his jeans and pulled his penis out, and said to her, “I want you to kiss it because it’s going to make you feel good”. She had never seen his penis before this incident, and when asked to do so, she knelt down and kissed his erect penis. This was the conduct comprised in Count 18 on the Indictment.

The offender then asked her to open her mouth, which she did. She gave evidence that he then proceeded to put his penis in her mouth and just leave it there. This was the conduct comprised in Count 19 on the Indictment.

Counts 20, 21 and 22

7. On a weekend afternoon in May 2000, when RF was aged 9 years, the two families were at the victim’s home. At around 7.30pm, when the victim’s grandparents were leaving and everyone was at the front of the house, the victim gave evidence that she was in the dining-room, when the offender spoke to her and asked her to get a broom from the laundry. She went to the laundry and the offender followed her in and closed the door. He told her that he loved her. He was facing her and then he turned her around and put his hand on her chest and proceeded to put his hands down her pants, underneath her underwear, and touch her vagina. That was the conduct comprised in Count 20 on the Indictment.

The offender then took hold of the victim’s hand and put it down his pants, directly onto his penis. This was the conduct comprised in Count 21 on the Indictment.

The victim gave evidence that he proceeded to unbutton her jeans and pull them down to her thighs. He then pulled down her underwear and told her to bend over, which she did. Her hands were on the floor and her bottom was up in the air. The victim gave evidence that he then exposed his penis and told her that he loved her, and all of a sudden she felt a sharp pain in her backside, and then she screamed. The offender pushed her away, pulled up his pants, and walked out the door. This was the conduct comprised in Count 22 on the Indictment. The victim gave evidence that she felt a sharp pain, she pulled her pants up and ran to the bathroom. When she urinated she had a really sharp pain and when she wiped herself there was blood on the toilet paper.

Count 23

8. On 18 October 2003, there was an occasion when the offender and the victim were alone in the dining room at the victim’s home. The victim’s grandparents arrived and everyone else was out the front to greet them. On this occasion, the offender turned her around and stuck his hands down her pants and she stuck her hand down his pants and rubbed his penis, while he rubbed her vagina around her clitoris area. They were facing away from each other and were facing towards the hallway. On this occasion, the victim described that she got “all tingly” and orgasmed. This was the conduct comprised in Count 23 on the Indictment.

In a telephone call made by RF to the offender on 16/12/16, the offender apologised to her for his “inappropriate behaviour”.

Count 24

9. On 17 April 2004, CE took her three children to the offender’s house for a barbecue. During the afternoon, PE, who was 11 years old, was in a downstairs room watching a movie when the offender just started rubbing her thighs and legs. She didn’t feel very comfortable, so she moved away from him and then went upstairs to see her mum. When she went back downstairs, he said to her, “Oh that’s a really nice necklace”, and he moved his hand across her chest and started rubbing her legs again. She went upstairs again and sat with her mum for a while, and then when she went to the kitchen, she walked past him and he touched her bum. This was the conduct comprised in Count 24 on the Indictment.

Counts 26-27

10. On the same day, 17 April 2004, PE’s younger sister,HE, who was 7 years old, was also watching a movie in the downstairs room.

During the afternoon, the children gathered on the verandah, after dark, to witness a volcano experiment being carried out by the offender’s son, EC. Whilst they were standing on the verandah, the offender pulled HE’s jeans and underpants back, and placed his left hand down the inside of her underpants and touched her bottom. This was the conduct comprised in Count 26 on the Indictment.

After that incident, the offender followed HE downstairs. He put his arms around her waist and hugged her from behind. He moved one of his hands to her rear and pulled her jeans and underpants back, placing his hand down the inside of her underpants and touching her bottom. This was the conduct comprised in Count 27 on the Indictment. The offender told her that she was very beautiful when he did that.

The sentence hearing

11. The sentence hearing took place on 6 September 2019. The Crown Sentence Summary became Ex A. It included a table of offences and facts to be derived from the jury verdict, which is consistent with my summary of the facts set out above in relation to each of the various counts, of which the offender was convicted.

12. Exhibit A also included a New South Wales criminal record printout which established that the offender has no criminal antecedents.

13. Also included in Ex A was a Victim Impact Statement from RF, which is referred to below.

14. Exhibit B was a Sentencing Assessment Report under the hand of Mr J Moran, dated 2 September 2019. That report set out, under the heading “Attitudes”, that the offender did not take responsibility for his offending behaviour and maintained that he did not commit the sexual offences. Rather, he stated that his affectionate behaviour towards the victims was “misinterpreted” and not sexually motivated.

15. The author noted that the offender had been referred for completion of a pre‑sentence assessment by a Department of Corrective Services’ psychologist. That report was annexed to the Sentencing Assessment Report. It stated that based on the Static 99-R test, the offender was assessed to be in the “below average” range for risk of sexual reoffending compared with other men who have offended sexually. The author went on to state that the offender had been assessed at a low risk of reoffending according to the Level of Service Inventory – Revised (“LSI-R”), and therefore Community Corrections had overridden the psychologist’s overall risk of reoffending to “T3 Medium-Low” in accordance with his assessed STATIC-99 rating.

16. The author went on to state that the offender displayed no insight into his behaviour or the impact it may have had on the victims. He was, however, willing to engage in sex offender programs because he “loves learning”. He also expressed a willingness to undertake Community Service work, and he was assessed as suitable to undertake such work.

17. Exhibit C was a Victim Impact Statement by the victim HE, which was read by her in court. I refer to that statement below.

The offender’s evidence

18. The offender tendered a report by Mr T Watson-Munro, consultant psychologist, dated 5 September 2019 (Ex 1). The report set out the offender’s family background, which the author described as “a complex clinical and developmental history, characterised by considerable instability during his formative years”. His family had migrated from Chile in 1971 because of fears of persecution. They returned to Chile in 1974, but returned to Australia the following year. The offender was educated to year 10 and joined the Royal Australian Navy in 1980, where he worked as an aircraft engineer for two years and three months. He was honourably discharged and then worked at Bankstown Airport as an aircraft engineer, before joining the Royal Australian Army for a period of 13 months. In 1986 he commenced employment with Qantas as an aircraft engineer and worked for that company for a period of 20 years, leaving in 2006. He then became involved in film production for a number of years before working in real estate.

19. The offender first married in 1986, but separated from his wife in October 2007 when the index offences arose. He remarried in 2012.

20. The author opined that there was nothing to indicate the offender suffered any psychological abnormalities. He further opined that the offender’s denial of his offending warranted professional intervention with a view to addressing his lack of insight and denial. He agreed with the assessment of moderate to low risk of reoffending and noted that the offending had ceased some years ago and there was no suggestion of subsequent offending.

21. Exhibit 2 was a bundle of various certificates attained by the offender during his working life. They go to his good character, which is discussed below.

22. Exhibit 3 was a medical certificate from Dr Tin dated 28 August 2019 outlining various illnesses for which that doctor was treating the offender’s mother.

The Crown submissions

23. The Crown relied on a written outline of submissions which set out the maximum sentences in force at the relevant time of the offending in respect of each of the offences. It also set out the aggravating and mitigating factors applicable and referred to general sentencing principles.

24. In his oral submissions, the Crown articulated the following characterisation of objective seriousness of each of the offences, which were conveniently divided into seven categories. The first category referred to Counts 1 to 6, relating to the Opera House. The Crown submitted that Counts 1, 2, 3, 4 and 6 fell within the mid-range of objective seriousness for offences pursuant to s 61M(2) of the Crimes Act 1900, principally because the age of the victim was seven years, against a ceiling age of 10 years for the offence.

25. Count 5 was characterised as being above mid-range of objective seriousness for an offence pursuant to s 61M(2) of the Crimes Act, as it involved touching of skin on skin of the victim.

26. In respect of the next category, namely Counts 7 to 10, which occurred in the computer room of the offender’s home, each of the offences were characterised as below mid-range of objective seriousness for offences pursuant to s 61M(2), (Counts 7, 9 and 10), and s 61O(2) (Count 8). This was because the victim was then eight years of age.

27. In relation to the third category, namely, Counts 11 to 14, which related to the laundry chute at the offender’s home, the Crown characterised Count 11 as being below the mid-range of objective seriousness for an offence pursuant to s 61M(2). Counts 12 and 13 were characterised as a mid-range of objective seriousness for offences pursuant to s 61M(2), because each involved skin on skin contact between the offender and the victim. Count 14, which comprised the offence of attempt sexual intercourse with a person under the age of 10 years, was characterised as below mid-range for an offence pursuant to s 66B of the Crimes Act, as it involved an attempt only to place the offender’s fingers in RF’s vagina.

28. The next category, namely, Counts 15 to 19, concerned the victim RF staying overnight at the offender’s home on 1 June 1999. Count 15 was characterised as being in the mid-range of objective seriousness for an offence pursuant to s 61M(2) of the Crimes Act. Count 16 was characterised as being above mid-range for an offence pursuant to s 61M(2), as the offending conduct constituted a simulated sex act. Count 17 was characterised as a mid-range of objective seriousness for an offence pursuant to s 61M(2). Count 18, the Crown submitted, was above mid-range for an offence pursuant to s 61O(2) of the Crimes Act, as it involved the offender having the victim kiss his penis in the bedroom. Count 19 also constituted offending above the mid-range for an offence pursuant to s 66A of the Crimes Act, as it involved oral penetration of the victim’s mouth with the offender’s penis.

29. The next category of offending were Counts 20 to 22 which occurred in the laundry at the victim’s home. Count 20 was characterised as mid-range of objective seriousness for an offence pursuant to s 61M(2) of the Crimes Act, as it involved skin on skin touching of the victim’s vagina. Count 21 was also mid-range of objective seriousness for an offence pursuant to s 61M(2), as it also involved skin on skin touching. Count 22 was characterised as above mid‑range of objective seriousness for an offence pursuant to s 66A of the Crimes Act, as it involved anal penetration of the victim by the offender’s penis, causing the victim pain and bleeding.

30. The last incident involving the victim RF occurred when she was 13 years of age. Count 23 was characterised by the Crown as being below mid‑range for an offence pursuant to s 61M(1) of the Crimes Act, as it involved touching outside the victim’s genitals.

31. Count 24 concerned the second victim PE. The Crown submitted that the objective seriousness of the offending here was below mid-range for an offence pursuant to s 61M(1) of the Crimes Act, however, it was aggravated somewhat by the offender telling the victim, who was 11 years of age at the time, “you’re beautiful”, during the offending.

32. Count 26 concerned the victim HE, who was seven years of age at the same time. The Crown submitted that the objective seriousness of the offending was mid-range, given that the victim was seven years of age at the time and the offending involved skin on skin contact. Count 27 also concerned HE, and again the Crown submitted that the objective seriousness of that offence was within the mid-range for an offence pursuant to s 61M(2) of the Crimes Act for the same reasons.

33. The Crown submitted that the following aggravating factors should be taken into account pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”):

(eb) Counts 20, 21, 22 and 23 occurred in the victim’s home.

(g) The emotional harm suffered by the victims, and in particular, RF was substantial.

(k) The offender was in a position of trust in respect of the offending concerning RF. He was her uncle in a close-knit family. In respect to Counts 1 to 6 he was in direct authority over her. In respect to Counts 15 to 19, she had been left alone with the offender under his care.

(i) Each of the victims were vulnerable and the Crown submitted that whilst the offender’s conduct did not constitute a part of a planned or organised criminal activity, in respect of RF, he groomed her in a premeditated way from a young age to acquiesce in certain conduct and behave in a certain way. This went more generally to harm and moral culpability.

34. In respect of mitigating factors, the Crown acknowledged, pursuant to s 21A(3)(e), that the offender had no previous criminal record, but noted that, pursuant to s 21A(5A), that good character or lack of previous convictions is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.

35. The Crown submitted that the court would take into account that the offender had engaged in grooming conduct in respect of RF over a number of years. It would also take into account the age difference between the offender and the three victims, and the fact that he showed no remorse. The Crown submitted that in applying the issue of totality in sentencing, the offending called for a not insignificant degree of accumulation, taking into account that the sentence should properly reflect the harm to each individual victim. Moreover, the offending conduct reflected six separate incidents of very serious offending that occurred over a course of six years throughout RF’s childhood, between ages seven to 13.

36. Finally, the Crown submitted that the offender’s tendency to act on his sexual interest in girls of a certain age in particular ways bears upon his prospects of rehabilitation and likelihood of reoffending.

The offender’s submissions

37. Counsel for the offender also relied on a written outline of submissions.

38. The offender submitted that the objective seriousness of the offending in Counts 1 to 6, all fell below the mid-range of objective seriousness for offences pursuant to s 61M(2). Each offence involved the offender touching the vaginal area of the victim RF, or having her touch his groin area. Except for Count 5, the touching was on the outside of the clothing. It was submitted that these counts could be viewed as one continuing episode and concurrent sentences should be imposed.

39. In respect of Counts 7 to 10, the victim was eight years old and the touching involved was all on the outside of the clothing. The offender submitted that the offences should be viewed as one episode and concurrent sentences imposed. All the offences were below mid-range of objective seriousness for offences pursuant to s 61M(2) (Counts 7, 9 and 10), and s 61O(2) (Count 8).

40. In respect of the offending in Counts 11 to 14, the offender submitted that all of the offences fell below the mid-range of objective seriousness for offences pursuant to s 61M(2) of the Crimes Act (Counts 11, 12 and 13), and s 66B of the Crimes Act (Count 14). Counts 11 and 13 involved touching on the outside of clothing. Count 12 involved the victim touching the offender’s penis under his clothing, and Count 14 involved the offender touching the victim’s vaginal area and attempting to put his finger into her vagina.

41. In respect of Counts 15 to 19, the offender submitted that all of the offences occurred at the same place and the same time, and should be treated as one continuing episode of criminal offending. It was submitted that the sentences for each offence should be concurrent. The indecent assault offences, namely, Counts 15, 16 and 17, were submitted to be below mid-range. Count 15 involved the offender touching the victim’s vaginal area under her clothing, whilst holding her against his erect penis. Count 16 involved the victim lying on top of the offender on a couch, and Count 17 involved the victim touching the offender’s penis under his clothing, and the offender touching the victim’s vagina under her clothes.

42. It was submitted that the conduct in Count 18, an offence pursuant to s 61O(2) of the Crimes Act, which involved the offender pulling his penis out and saying to the victim, “I want you to kiss it because it’s going to make you feel good”, should be subsumed in Count 19, an offence of sexual intercourse with person under the age of 10 years, pursuant to s 66A of the Crimes Act, which was by far the most serious of this set of offences. Count 19 involved the offender putting his penis in the victim’s mouth when she was nine years of age. It was submitted that this was also below mid-range.

43. It was submitted that Counts 20 to 22 constituted one episode of criminality. Counts 20 and 21 were indecent assaults involving touching under the clothes. Both offences were below mid-range of objective seriousness for offences pursuant to s 61M(2). Count 22 involved the offender putting his penis in the anus of the victim, and to some degree, causing pain and bleeding. It was submitted that this offence, pursuant to s 66A of Crimes Act, was “around mid-range”.

44. The offender submitted that Count 23, which involved the offender rubbing the victim’s vagina and clitoris until she had an orgasm, while the victim was rubbing the offender’s penis at the same time, was “around mid-range”. It was aggravated because it occurred in the victim’s home.

45. The offender submitted that Count 24, which involved the offender touching the victim PE on her leg, on the outside of her jeans, and telling her she was beautiful when she was 11 years of age, was within the low range of objective seriousness for an offence pursuant to s 61M(1). Counts 26 and 27 involved the offender placing his hand down the pants of the victim HE, who was seven years of age, and touching her bottom. It was submitted that these offences were “no more than mid-range”.

46. The offender set out the following subjective factors. He was 56 years of age, having arrived in Australia at age eight, and been educated to year 10. He had a good work record thereafter, working for the Royal Australian Navy, The Australian Army, and Qantas for a period of 20 years, first as an aircraft engineer, and later becoming a production analyst. He had been working at the time of his arrest in real estate. It was submitted that the offender had always been in employment and has been a productive and involved member of the community.

47. The offender submitted that an aggregate sentence was appropriate, with substantial concurrency in the sentences, although there should be some accumulation to recognise the different periods of the offending, the number of offences and the different victims. Although he had not shown remorse, the offender had shown a willingness to engage in a sex offender program and had been assessed as a low risk of reoffending. The offender had not committed any offences since 2004, and this could be taken into account in assessing the likelihood of him reoffending, and his prospects for rehabilitation. Whilst not proffered as an excuse for his offending, it was submitted that the offender may have had an alcohol problem during the period of the offending, which caused him to become disinhibited and then to commit the offences.

48. It was submitted that the court would take into account the following mitigating factors:

1. The offence was not part of a planned or organised criminal activity.

2. The offender does not have any previous convictions.

3. The offender was a person of good character.

4. The offender was unlikely to reoffend.

5. The offender has good prospects of rehabilitation.

49. In his oral submissions, learned Counsel for the offender observed that his submissions as to objective seriousness of the offending was not greatly at odds with the Crown submissions, although in respect of a number of the offences, his characterisation of the objective seriousness was a little less than that of the Crown.

50. It was submitted that s 21A(5A) did not apply to the present offending, as the offender’s good character had not enabled him to commit the offences. In the case of the victim RF, who was his niece, it was submitted that the offender’s good character, or lack of previous convictions, had not led to the offending. In respect of the victims PE and HE, they merely attended the same school as his son and had become friendly with his son. The offender himself was not a teacher at the school and in no sense did his character or lack of previous convictions enable the offending to take place.

49. Counsel conceded that the offender was in a position of trust and authority in respect of the offending in Counts 1 to 6 (the Opera House offences), and Counts 15 to 19 (when he was left alone with the victim RF). On the question of vulnerability of the victims, it was conceded by counsel that all children are vulnerable, however, in terms of the offences pursuant to s 61M(2), the age of the victim at the time of each offence, by comparison to the ceiling age of 10 years, should be taken into account.

50. Counsel rehearsed his submissions as to the subjective factors outlined above. It was submitted that the offender had otherwise lived an exemplary life, being in full time employment and involved in the community. He was a man with no criminal history and the last offences had occurred over 15 years ago. This would indicate that he had some prospects of rehabilitation, as would the fact that he was now 56 years of age. It was submitted that pursuant to s 21A(3)(g), he was unlikely to reoffend.

51. Counsel agreed that an aggregate sentence pursuant to s 53A was appropriate here. Some accumulation should take place as there were three victims, and the offending took place over a lengthy period of time. However, in respect of each set of offending conduct, there should be some concurrency.

Offender’s supplementary submission

54. Following the sentence hearing, learned Counsel for the offender sent a supplementary submission on two matters. First, with respect to the rehabilitation of the offender, the court was referred to R v Hall [2017] NSWCCA 313, where at [119] R A Hulme J (Simpson JA and Wilson J agreeing) said:

“Rehabilitation of an offender is always a relevant consideration no matter how much time has elapsed between the offending and sentencing. In this case, the period is so long that it has enabled the offender to bring forward a subjective case that had a number of features that were to his benefit on sentence.”

55. Secondly, Counsel referred to the delay here in sentencing, referring to Porter v R [2019] NSWCCA 117. It was submitted that this was not a case where the offender decamped or was unable to be identified for a prolonged period. The victims in Counts 24, 26 and 27 were interviewed by the police in 2004, and a decision was made not to proceed with their complaints. The victim, RF, first raised the abuse by the offender of her with her family in 2010.

Crown’s submissions in reply

56. In response to the offender’s supplementary submission, the Crown relied on a further written submission on the question of delay. First, in respect of the two victims PE and HE, who complained immediately following the offending conduct in 2004, it was submitted by the Crown that it was entirely understandable that the victims’ mother chose not to pursue the matter further at that time, after confronting the offender and his wife. The Crown submitted that the situation in respect of the more serious counts involving the victim RF, was even more distinct. These matters were brought to the attention of police in 2016 and in the context of a criminal investigation and a contested trial, there has been no delay. The Crown referred to R v Porter, supra, as authority that in a case involving child sexual assault, delay in a victim coming forward is of very limited assistance to an offender. The Crown also relied on WAP v R [2017] NSWCCA 212 at [72], where the Court of Criminal Appeal, in applying that principle, said that the offender had not been left in a state of uncertain suspense, nor had he demonstrated rehabilitation in the meantime, nor was he still serving a sentence for previous offences.

57. The Crown referred the court to Hornhardt v R [2017] NSWCCA 186 at [53] and [54], where the Court of Criminal Appeal held that it was notorious that sexual offending against children by its very nature causes victims to be reluctant to come forward and make a complaint, particularly where close family relationships are involved. Further, the court held that offending on young persons, even 30 years previously, should not be considered a “stale crime”. Whilst it was true that the offender had not offended since the last of the offences, the court held that it was also true that “having sexually assaulted three victims over many years, he escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that time”.

58. The Crown submitted that the offending concerning RF occurred within the context of a “tight” family group and the offender encouraged her to keep it secret. The Crown further submitted that the offender chose his victims intending not to be detected, and also submitted that delay was attributed to the nature of the offending and did not give rise to a particular degree of leniency in sentencing.

Determination

59. 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.”

60. I have assessed the objective seriousness of the offending, in respect of each offence, as follows.

Count 1

61. This offending involved the offender putting his left hand on the victim’s thigh and rubbing it. He moved his hand up and touched her crotch area on top of her clothing. The incident lasted for about 10 minutes. For an offence pursuant to s 61M(2) of the Crimes Act 1900, which encompasses a broad range of criminal conduct amounting to indecent assault on a person under the age of 10 years, and having regard to the fact that the victim was seven years old at the time of the offence in 1997, the objective seriousness of the offending fell below the mid-range for an offence pursuant to s 61M(2), and within the middle of the low range for such an offence.

Count 2

62. The objective seriousness of this offending, which involved the offender putting the victim RF’s hand on his thigh and moving it around his crotch area for about 10 minutes, also fell below the mid-range of objective seriousness for an offence pursuant to s 61M(2), and in the middle of the low range for such an offence.

Count 3

63. The objective seriousness of this offence, which involved the offender telling the victim that he thought they should continue to show how they love each other, and putting her hand on his own thigh and his hand on top of hers, moving it so that it was on his crotch, on the top of his clothing, and rubbing backwards and forwards over his crotch area, also constituted conduct that was below the mid-range of objective seriousness for an offence pursuant to s 61M(2) and towards the middle of the low range for such an offence.

Count 4

64. The objective seriousness of this offending, which occurred at the same time as Count 3, and involved the offender putting his hand on top of the victim’s thigh and moving it to her vaginal area, over her clothing, also constituted offending below mid-range of objective seriousness for an offence pursuant to s 61M(2) of the Crimes Act, and towards the middle of the low range for such an offence.

Count 5

65. The objective seriousness of the offending, which involved the offender putting his hand underneath the victim’s stockings and touching the top of her vagina skin to skin, for between five to 10 minutes, was below the mid‑range for an offence pursuant to s 61M(2), but towards the upper end of the lower range for such an offence, in that it involved skin to skin contact. It constituted serious offending.

Count 6

66. The objective seriousness of the offending here, which involved the offender unzipping the fly of his pants and asking the victim RF to touch him, whereby she rubbed his crotch area on the top of his underwear, and the offender touching the top of the victim’s vagina, but not involving skin to skin contact, also fell below the mid-range of objective seriousness for an offence pursuant to s 61M(2), and towards the middle of the low range for such an offence.

Counts 7 to 10

67. It was not in dispute that the offending in each of the Counts 7, 8, 9 and 10, fell below the mid-range of objective seriousness for offences pursuant to s 61M(2) (Counts 7, 9 and 10), and s 61O(2) (Count 8). The offences occurred when the victim RF was eight years old in the offender’s computer room. Count 7 involved the offender placing the victim on his lap so that her bottom was on top of his crotch area. This was at the lowest end of the range of objective seriousness for an offence pursuant to s 61M(2). Count 8 involved the offender asking the victim RF to move backwards and forwards on his lap when he had an erection. This was an offence at the middle of the low range of objective seriousness for an offence pursuant to s 61O(2) of the Crimes Act.

68. Count 9 involved the offender touching the victim RF’s chest underneath her clothes, where her breasts were. This involved an offence in the middle of the low range of objective seriousness for an offence pursuant to s 61M(2). Count 10 involved the offender touching the victim on the inside of her thigh and in the vicinity of her vagina, on top of her clothing, which constituted offending at the lower end of the range for an offence pursuant to s 61M(2) of the Crimes Act.

Counts 11 to 14

69. It was also not in dispute that in Counts 11 to 14 each of the offences fell below the mid-range of objective seriousness for offences pursuant to s 61M(2) of the Crimes Act. Count 11 involved the incident where the victim RF ran to the laundry to find the offender there alone. He told her that he loved her, he turned her around so that her back was facing his front, and he touched her waist area. This was the lower end of the objective seriousness for an offence pursuant to s 61M(2).

70. Count 12 involved the offender then taking the victim’s hand and placing it down his pants so she was touching his penis skin to skin. At that time he told her that he loved and that she was special. This offence fell below mid‑range, but towards the upper end of the low range of objective seriousness for an offence pursuant to s 61M(2) of the Crimes Act.

71. Count 13 involved the offender, at the same time as Count 12, touching the victim RF’s vagina area over her clothing. This offending fell below mid‑range and in the middle of the low range of objective seriousness for an offence pursuant to s 61M(2) of the Crimes Act.

72. Count 14 was an attempt to have sexual intercourse with the victim RF when the offender put his hand around her clitoris area and tried to put his finger into her vagina, causing her to “freak out a little bit”. This conduct fell below mid-range of objective seriousness for an offence pursuant to s 66B of the Crimes Act 1900, and towards the middle of the low range for such an offence.

Count 15

73. Count 15 occurred when the victim was staying at the offender’s place overnight. They were left alone while others left the house to obtain takeaway food. The offender and the victim were in the dining room when the offender held the victim so that her back faced his stomach. She could feel the offender’s erect penis close to her backside. He then put his hand down her pants, underneath her underwear and touched the top of her vagina, around her clitoris area for a period of five minutes. This constituted serious offending within the mid-range for an offence pursuant to s 61M(2) of the Crimes Act.

Count 16

74. Count 16 involved offending when the offender took the victim into the lounge room and lay on a couch, and asked the victim to lie on top of him, which she did, facing him. She could feel his erection as she rubbed up against him and he rubbed up against her. As this was occurring, the offender told RF that he loved her and she was special. This was a simulated sex act, however, there was no skin on skin contact and for that reason the objective seriousness of the offending fell within the mid-range for an offence pursuant to s 61M(2) of the Crimes Act.

Count 17

75. Count 17 occurred when the offender then suggested they go into the bedroom, and in the bedroom, whilst they were standing, he put his hand down the victim’s pants and rubbed her vagina, and she put her hand down his pants and rubbed his penis. The objective seriousness of this offending fell within the mid-range for an offence pursuant to s 61M(2).

Count 18

76. Count 18 was the offence of incite person under the age of 10 years to commit act of indecency. It involved the offender unzipping his jeans, pulling his penis out, and saying to the victim, “I want you to kiss it because it’s going to make you feel good”, whereupon the victim knelt to the ground and kissed his penis. The objective seriousness of this offending fell within the mid‑range for an offence pursuant to s 61O(2) of the Crimes Act.

Count 19

77. Count 19 involved the offence of sexual intercourse with person under the age of 10 years. The offence occurred when the offender asked the victim RF to open her mouth and the offender put his penis in her mouth for a short period of time. This fell below mid-range of objective seriousness for an offence pursuant to s 66A of the Crimes Act, which countenances a broad set of sexual offending against young children. It was, however, serious offending and objectively fell in the upper part of the lower range of objective seriousness for such an offence.

Count 20

78. Count 20 occurred when the victim was nine years of age, and the offender followed the victim into the laundry, closing the door behind him. He turned her around so his hand was on her chest and he put his hand down her pants underneath her underwear and touched her clitoris. The objective seriousness of this offending was just below the mid-range for an offence pursuant to s 61M(2) of the Crimes Act, and in the upper area of the low range.

Count 21

79. Count 21 involved the offender then guiding one of her hands behind her and down his pants, so that she was touching his penis skin to skin for a short period of time. The objective seriousness of this offending was also just below mid-range for an offence pursuant to s 61M(2) of the Crimes Act, and in the upper end of the low range.

Count 22

80. Count 22 involved the offender then asking the victim RF to unbutton her jeans, which she did. He pulled down her underwear and told her to bend over. Having unbuttoned his jeans and exposed his penis, the offender then put his penis inside the victim’s anus, causing her to scream as she felt a sharp pain to her anus. The offender then pushed the victim away, pulled up his pants and walked out the door. The victim RF continued to feel pain and went to the bathroom where she felt “a really sharp pain” and found blood when she wiped herself with toilet paper. This offending constituted serious offending within the mid-range for an offence pursuant to s 66A of the Crimes Act 1900.

Count 23

81. Count 23 occurred when the victim RF was 13 years of age. Whilst the offender and victim were standing in the dining room of her home, they were alone and the offender put his hands down her pants and she put her hand down his pants. The offender rubbed her vagina and clitoris, and she rubbed his penis as they had done many times before. The offender caused the victim to orgasm. The incident lasted for about five minutes. The objective seriousness of the offending fell just below the mid-range for an offence pursuant to s 61M(1) of the Crimes Act, within the upper end of the low range for such an offence.

Count 24

82. Count 24 involved the offence on PE, who had visited the offender’s home with her mother and younger sister. The victim was 11 years of age and was watching a movie with other children. The offender came into the room and sat next to PE. He touched her on the leg and thigh at the top of her jeans and said, “you are really beautiful”. This occurred for about a minute. The objective seriousness of the offending was below mid-range for an offence pursuant to s 61M(1), and was at the lowest end of the range for such an offence.

Count 26

83. Count 26 involved offending on the same day involving HE, who was seven years of age. The children had gathered on the verandah of the premises and the offender pulled HE’s jeans and underpants back and placed his hand down the inside of her underpants and touched her bottom for about one minute. This offence involved skin on skin contact and the objective seriousness of the offending fell within the mid-range for an offence pursuant to s 61M(2) of the Crimes Act, but towards the lower end of the mid-range.

Count 27

84. Count 27 also involved HE on the same day. Later in the evening, the offender again placed his hand down the inside of her underpants and touched her bottom. The objective seriousness of this offending also fell within the mid-range for an offence pursuant to s 61M(2) of the Crimes Act, involving skin to skin contact on a seven year old child. It fell, however, towards the lower end of the mid-range for such an offence.

85. I find the following aggravating factors pursuant to s 21A of the CSPA:

(eb) Counts 20, 21, 22 and 23 occurred in the victim’s home.

(g) The emotional harm suffered by each of the victims was substantial.

(k) The offender abused a position of trust in respect of the victim RF, as her uncle. He was in a position of authority over her in respect of Counts 1 to 6, and Counts 15 to 19.

(l) Each of the victims were vulnerable as young children.

86. I have been careful not to double count the aggravating factors of the abuse of trust and being in a position of authority involved in arriving at an appropriate sentence in this case. As the offender was RF’s uncle, there was a significant breach of trust involved in each of the offences against her, i.e. Counts 1 to 23. As outlined above, she was also under his authority in Counts 1 to 6 and Counts 15 to 19. Being under his authority is not an element of those offences – see Beavis v R [2018] NSWCCA 248.

87. I have taken into account the following maximum penalties, and where appropriate, Standard Non-Parole Periods for each of the offences as follows:

Counts 1 to 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 15, 16, 17, 20 and 21 – offences pursuant to s 61M(2) of the Crimes Act 1900 - 10 years imprisonment.

Counts 8 and 18 – offences pursuant to s 61O(2) of the Crimes Act 1900 – 7 years imprisonment

Count 14 – offence pursuant to s 66B of the Crimes Act 1900 – 20 years imprisonment

Counts 19 and 22 – offences pursuant to s 66A of the Crimes Act 1900 – 20 years imprisonment.

Counts 23 and 24 – offences pursuant to s 61M(1) of the Crimes Act 1900 – 7 years imprisonment and a Standard Non-Parole Period of 5 years imprisonment.

Counts 26 and 27 – offences pursuant to s 61M(2) of the Crimes Act 1900 – 10 years imprisonment and a Standard Non-Parole Period of 5 years imprisonment.

88. The maximum penalties, and Standard Non-Parole Periods where proscribed, are guideposts in the sentencing process which have to be taken into account.

89. General deterrence is also important in the sentencing process here. The most vulnerable members of our community must be protected and Parliament has proscribed severe penalties for child sexual assault offences and the courts will impose lengthy prison sentences in appropriate cases. A clear message must be sent to the community that such criminal conduct will not be tolerated. Specific deterrence is also important here, given the offender’s continuing denial of his criminal conduct in the face of the jury’s verdicts.

90. The courts have for many years found that child sexual offences have profound and deleterious effects upon victims for many years, if not the whole of their lives – see R v Gavel [2014] NSWCCA 56 at [110], where the Court of Criminal Appeal held that 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”.

88. Exhibit A contained the Victim Impact Statement of RF, who chose not to read it in court. In a lengthy document, she set out in detail the impact of the offender’s criminal conduct on her physical and psychological well-being, and the continuing impact the offending has had on her life, notwithstanding significant therapeutic assistance. It is an eloquent and poignant account evidencing the lost childhood of the victim and the impact that the offender’s criminal conduct has had on her during what should have been the happiest years of her life. That impact has been profound and deleterious to every facet of her life.

89. The victim, HE, did read her Victim Impact Statement in court. Again, it was a poignant exposition of the effect of the offender’s criminal conduct on her, and the ongoing psychological effect which has impacted every area of her life since.

90. The absence of a Victim Impact Statement from the victim PE does not give rise to an inference that that offence had little or no impact on her, pursuant to s 29(3) of the CSPA.

91. I have taken the Victim Impact Statements into account in assessing the harm done to the victims of the crimes here. However, I have been careful not to double count where emotional harm is inherent in the nature of the offences. I also have been careful not to take those statements into account in aggravating the culpability of the offender.

92. Notwithstanding that the oldest of the offences (Counts 1-6) occurred in 1997, s 25AA of the CSPA applies here, and the offender is to be sentenced in accordance with sentencing patterns and practices at the time of this sentence, and not at the time of the offences. I am to have regard to the maximum penalty applicable at the time of the offending as guideposts in the sentencing process and to disregard any increase in the maximum penalties for the offences as they currently appear in the Crimes Act 1900. I am then to assess the objective seriousness of the offending conduct, taking into account all of the relevant circumstances, and then have regard to any aggravating or mitigating factors.

93. I have taken into account the fact that the offender had no previous criminal offences, had an excellent employment history and was otherwise of good character. However, as far as the offending against RF was concerned, I am satisfied that his character was of assistance to the offender in the commission of the offences against her. He was her uncle in what was a very close family. The offending commenced when she was seven years of age, and under his authority when she was taken to the Opera House by him. Thereafter, he engaged in what can only be described as grooming conduct over a period of six years, which normalised the conduct that amounted to sexual offending by him, to her. Therefore, pursuant to s 21A(5A) of the CSPA, his previous good character and lack of convictions cannot be taken into account as a mitigating factor.

94. In respect of the offences against PE and HE (Counts 24, 26 and 27), I am not satisfied that his good character was of assistance to him in the commission of that offending. Rather, it was opportunistic offending which occurred when those children were brought into his home. However, his lack of criminal convictions and good character could not be said to mitigate the offending in those counts, given his previous offending.

95. I have taken into account the subjective matters put on behalf of the offender. He is 56 years of age and has had a good employment history. I am not satisfied that the evidence tendered as to the medical condition of his mother (Ex 3) entitles him to leniency in sentencing. Hardship likely to be caused by imprisonment on the offender’s mother could not be taken into account so as to reduce any non-parole period unless it would be “in effect, inhuman to do so” – see Matthews v R [2018] NSWCCA 186.

96. Here, his criminal conduct took place over a period of seven years, between 1997 and 2004. In the case of RF, it involved grooming conduct over a period between her being aged 7 years and 13 years. There was a considerable age difference between the offender and each of his victims, and he has shown no insight into his criminal behaviour, and no remorse for his offending. I find that in accordance with Ex B, that he is a low to medium risk of reoffending, although he has not offended in the last 15 years. This is not a case like R v Hall, supra, where the delay in bringing proceedings allowed the offender to provide evidence upon which the primary judge found he had established, since the time of the index offences, “a more law-abiding, productive and pro‑social existence”. Here, the offender has not in any way acknowledged his criminal conduct, but rather, indicated to the psychologist that he would agree to intervention because he “loves learning”, notwithstanding that he displayed no insight into criminal conduct or the impact it may have had on the victims.

97. There was a delay in prosecuting the offender here. As outlined above, the victims in Counts 24, 26 and 27 complained immediately after the offending in 2004. The victim RF first raised the abuse of her by the offender with her family in New York in 2010. It is not uncommon for child victims of sexual assault to wait for many years before they complain or take matters to the police. The reasons for that may be manifold. The offender, having had the benefit of living his life for many years in the absence of being prosecuted, should not receive any leniency in the sentencing process, by virtue of that delay. Further, child sexual offences are not regarded as “stale crime”, and whilst there was some delay in bringing the proceedings to trial, that does not in this case diminish the importance of general deterrence as outlined above.

98. Given his continuing denial of the offences, I am unable to find that the offender has good prospects of rehabilitation.

99. This is an appropriate case for sentence by way of an aggregate sentence pursuant to s 53A of the CSPA. Before doing so, I must give indicative sentences for each offence. This provides transparency in the sentencing process. The indicative sentences are as follows:

Count 1 – 6 months imprisonment

Count 2 – 6 months imprisonment

Count 3 – 6 months imprisonment

Count 4 – 6 months imprisonment

Count 5 – 12 months imprisonment

Count 6 – 6 months imprisonment

Count 7 – 3 months imprisonment

Count 8 – 6 months imprisonment

Count 9 – 3 months imprisonment

Count 10 – 6 months imprisonment

Count 11 – 3 months imprisonment

Count 12 – 6 months imprisonment

Count 13 – 3 months imprisonment

Count 14 – 2 years imprisonment

Count 15 – 2 years imprisonment

Count 16 – 2 years imprisonment

Count 17 – 2 years imprisonment

Count 18 – 2 years imprisonment

Count 19 – 2 years imprisonment

Count 20 – 12 months imprisonment

Count 21 – 12 months imprisonment

Count 22 – 5 years imprisonment

Count 23 – 4 years imprisonment with a non-parole period of 3 years imprisonment

Count 24 – 12 months imprisonment with a non-parole period of 9 months

Count 26 – 2 years imprisonment with a non-parole period of 18 months

Count 27 – 2 years imprisonment with a non-parole period of 18 months

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

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

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

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

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

105. In arriving at the aggregate sentence here, I have taken into account the objective seriousness of each of the offences and the subjective matters set out above. I am satisfied here that the threshold contained in s 5 of the CSPA has been crossed and there is no alternative to imposing a sentence of imprisonment in this matter. In applying the principles of totality and proportionality to the offending conduct here, I take into account that there were six separate sets of offences relating to the victim RF, and the offences pertaining to the victims PE and HE (Counts 24, 26 and 27) occurred on the same day. There should therefore be some concurrency in sentencing in respect of Counts 1 to 6, Counts 7 to 10, Counts 11 to 14, Counts 15 to 19, Counts 20 to 22, as each of those sets of offending could be regarded as constituting a single course of offending conduct. However, in respect of each of those sets of offending conduct, there should be some accumulation of the sentence, together with the sentence in respect of Count 23. Counts 24, 26 and 27 also constituted one course of offending conduct, taking place on the same day and will also attract some concurrency, although there must be some accumulation for the two victims.

106. Applying principles of proportionality and totality, as set out above, I intend to sentence the offender to a head sentence of 10 years imprisonment, with a non‑parole period of 7 years and 6 months imprisonment.

Orders

107. I make the following orders:

1. You are convicted of the following offences:

Count 1 - Pursuant to s 61M(2) of the Crimes Act 1900 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

Count 2 - Pursuant to s 61M(2) of the Crimes Act 1900 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

Count 3 - Pursuant to s 61M(2) of the Crimes Act 1900 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

Count 4 - Pursuant to s 61M(2) of the Crimes Act 1900 - between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

Count 5 - Pursuant to s 61M(2) of the Crimes Act 1900 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

Count 6 - Pursuant to s 61M(2) of the Crimes Act 1900 – between 8 October 1997 and 30 November 1997, at Sydney in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on RF.

Count 7 - Pursuant to s 61M(2) of the Crimes Act 1900 – between 30 May 1998 and 31 May 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 or 8 years and at the time of such assault did commit an act of indecency on RF.

Count 8 - Pursuant to s 61O(2) of the Crimes Act 1900 – between 30 May 1998 and 31 May 1999, at Russell Lea in the State of New South Wales, incited RF a person then under the age of 10 years, namely 7 or 8 years, to commit an act of indecency with him.

Count 9 - Pursuant to s 61M(2) of the Crimes Act 1900 – between 30 May 1998 and 31 May 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 or 8 years and at the time of such assault did commit an act of indecency on RF.

Count 10 - Pursuant to s 61M(2) of the Crimes Act 1900 – between 30 May 1998 and 31 May 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 7 or 8 years and at the time of such assault did commit an act of indecency on RF.

Count 11 - Pursuant to s 61M(2) of the Crimes Act 1900 - between 8 October 1998 and 7 October 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 years and at the time of such assault did commit an act of indecency on RF.

Count 12 - Pursuant to s 61M(2) of the Crimes Act 1900 - between 8 October 1998 and 7 October 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 years and at the time of such assault did commit an act of indecency on RF.

Count 13 - Pursuant to s 61M(2) of the Crimes Act 1900 - between 8 October 1998 and 7 October 1999, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 years and at the time of such assault did commit an act of indecency on RF.

Count 14 - Pursuant to s 66B of the Crimes Act 1900 - between 8 October 1998 and 7 October 1999, at Russell Lea in the State of New South Wales, did attempt to have sexual intercourse with RF, a person then under the age of 10 years, namely 8 years.

Count 15 - Pursuant to s 61M(2) of the Crimes Act 1900 - between 1 June 1999 and 7 October 2000, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 or 9 years and at the time of such assault did commit an act of indecency on RF.

Count 16 - Pursuant to s 61M(2) of the Crimes Act 1900 - between 1 June 1999 and 7 October 2000, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 or 9 years and at the time of such assault did commit an act of indecency on RF.

Count 17 - Pursuant to s 61M(2) of the Crimes Act 1900 - between 1 June 1999 and 7 October 2000, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 8 or 9 years and at the time of such assault did commit an act of indecency on RF.

Count 18 - Pursuant to s 61O(2) of the Crimes Act 1900 - between 1 June 1999 and 7 October 2000, at Russell Lea in the State of New South Wales, incited RF a person then under the age of 10 years, namely 8 or 9 years, to commit an act of indecency with you.

Count 19 - Pursuant to s 66A of the Crimes Act 1900 - between 1 June 1999 and 7 October 2000, at Russell Lea in the State of New South Wales, did have sexual intercourse with RF, a person then under the age of 10 years, namely 8 or 9 years.

Count 20 - Pursuant to s 61M(2) of the Crimes Act 1900 - between 1 May 2000 and 31 May 2000, at Roselands in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 9 years and at the time of such assault did commit an act of indecency on RF.

Count 21 - Pursuant to s 61M(2) of the Crimes Act 1900 - between 1 May 2000 and 31 May 2000, at Roselands in the State of New South Wales, did assault RF a person then under the age of 10 years, namely 9 years and at the time of such assault did commit an act of indecency on RF.

Count 22 - Pursuant to s 66A of the Crimes Act 1900 - between 1 May 2000 and 31 May 2000, at Roselands in the State of New South Wales, did have sexual intercourse with RF, a person then under the age of 10 years, namely 9 years.

Count 23 - Pursuant to s 61M(1) of the Crimes Act 1900 - on 18 October 2003, at Russell Lea in the State of New South Wales, did assault RF a person then under the age of 16 years, namely 13 years and at the time of such assault did commit an act of indecency on RF.

Count 24 - Pursuant to s 61M(1) of the Crimes Act 1900 - on 17 April 2004, at Russell Lea in the State of New South Wales, did assault PE a person then under the age of 16 years, namely 11 years and at the time of such assault did commit an act of indecency on PE.

Count 26 - Pursuant to s 61M(2) of the Crimes Act 1900 - on 17 April 2004, at Russell Lea in the State of New South Wales, did assault HEV a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on HE.

Count 27 - Pursuant to s 61M(2) of the Crimes Act 1900 - on 17 April 2004, at Russell Lea in the State of New South Wales, did assault HE a person then under the age of 10 years, namely 7 years and at the time of such assault did commit an act of indecency on HE.

2. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA.

3. You are sentenced to a non-parole period of 7 years and 6 months imprisonment to commence on 27 June 2019 and to terminate on 26 December 2026.

4. The balance of term will be a period of 2 years and 6 months from 27 December 2026 and terminate on 26 June 2029.

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Decision last updated: 13 September 2019