R v DW

[2024] NSWDC 380

District Court

New South Wales

Medium Neutral Citation:

R v DW [2024] NSWDC 380

Hearing dates:

19 April 2024

Decision date:

13 June 2024

Jurisdiction:

Criminal

Before:

Coleman SC DCJ

Decision:

(1) For the offences to which he has pleaded guilty, the offender is convicted.

(2) The sentence is as follows:

     (a) For count 1 (indecent assault person under 10 years), I indicate a term of imprisonment of 2 years and 8 months, which after the 25% discount is 2 years imprisonment. The indicative non-parole period is 1 year imprisonment;

     (b) For count 2 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;

     (c) For count 5 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;

     (d) For count 8 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 9 years, which after the 25% discount is 6 years 9 months imprisonment. The indicative non-parole period is 3 years 5 months imprisonment;

     (e) For count 10 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;

     (f) For count 11 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;

     (g) For count 13 (indecent assault person under 16 years), I indicate a term of imprisonment of 2 years, which after the 25% discount is 1 year and 6 months imprisonment. The indicative non-parole period is 9 months imprisonment;

     (h) For count 14 (commit act of indecency), I indicate a term of imprisonment of 18 months, which after the 25% discount is 13 months imprisonment.

     (i) For count 16 (indecent assault person under 16 years), taking into account count 15 on the form 1, I indicate a term of imprisonment of 2 years and 8 months, which after the 25% discount is 2 years imprisonment. The indicative non-parole period is 1 year imprisonment;

     (j) For count 17 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;

     (k) For count 18 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;

     (l) For count 20 (sexual intercourse with person under 10 years), taking into account count 23 on the form 1, I indicate a term of imprisonment of 12 years, which after the 25% discount is 9 years imprisonment. The indicative non-parole period is 4 years and 6 months imprisonment.

(3) I set an aggregate term of imprisonment of 20 years with a non-parole period of 10 years.

(4) The sentence commences on 3 August 2020 and expires on 2 August 2040.

(5) The offender will be eligible for release to parole on 2 August 2030.

Catchwords:

CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years --- Multiple victims, offender the grandfather of the victims

CRIME — Sexual offences — Aggravated sexual assault — Victim under authority --- Committed whilst under authority of grandparents

CRIME — Sexual offences — Indecent assault

Legislation Cited:

Crimes Act 1900 (NSW), s 61M(2), 61O(2), 66A

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, 21A(2)(g), 21A(2)(k), 21A(2)(l), 21A(3)(e), 21A(3)(f), 21A(3)(i), 21A(3)(k), 21A(5A), 25D(2), 53A

Cases Cited:

Johnson v The Queen [2004] HCA 15

Liu v R [2023] NSWCCA 30

PN v R [2024] NSWCCA 86

R v MAK [2006] NSWCCA 381

R v Mammone [2006] NSWCCA 138

R v PGM [2008] NSWCCA 172

R v Sopher (1993) 70 A Crim R 570

RH McL v The Queen (2000) 203 CLR 452

Texts Cited:

Nil

Category:

Sentence

Parties:

Director for Public Prosecutions (NSW) (Crown)
DW (Offender)

Representation:

Counsel:
Mr J Tunks (NSW) (Crown)
Mr M Doyle (Queen’s Square Chambers)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid (NSW)

File Number(s):

2020/00225468

Publication restriction:

Pursuant to s 578A Crimes Act 1900 (NSW), there is to be no publication of any matter that identifies or is likely to lead to the identification of the victim in this matter.

JUDGMENT

1. The offender, DW, is to be sentenced today for the following offences to which he has pleaded guilty:

1. Indecent assault with person under 10 years (count 1), an offence under s 61M(2) Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years imprisonment, with a standard non-parole period of 5 years.

2. 8 counts of sexual intercourse with a person under 10 years (counts 2, 5, 8, 10, 11, 17, 18 and 20), an offence under s 66A Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years imprisonment, with a standard non-parole period of 15 years.

3. 2 counts of indecent assault person under 16 years (counts 13 and 16), an offence under s 61M(2) Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years imprisonment, with a standard non-parole period of 8 years.

4. Commit act of indecency (count 14), an offence under s 61O(2) Crimes Act 1900 (NSW). This offence carries a maximum penalty of 7 years. There is no standard non-parole period.

2. There are two offences are attached on Form 1:

1. Indecent assault person under 16 years of age (count 23), to be attached to count 20. This is an offence under s 61M(2) Crimes Act 1900 (NSW). It carries a maximum penalty of 10 years imprisonment and has a standard non-parole period of 8 years.

2. Indecent assault person under 16 years of age (count 15), to be attached to count 16. This is an offence under s 61M(2) Crimes Act 1900 (NSW). It carries a maximum penalty of 10 years imprisonment and has a standard non-parole period of 8 years.

Facts

3. There are agreed facts for this sentence.

Background

4. The offender was born on 11 March 1946.

5. The offender married BW in 1980, who had two daughters from a previous marriage, being KL and MW. BW passed away in 2017.

6. The first victim, HR, born 22 September 1998, is the daughter of KL. The second victim, GW, born 4 September 2002, is the daughter of MW.

7. The offender is the step-grandfather of each victim. Both victims would regularly visit their grandparents house when they were younger and would often stay overnight on weekends.

Victim 1: HR

8. In relation to HR, the agreed facts state that the following acts are not isolated incidents and are representative in nature.

9. Between the ages of 7 to 11-12, the offender regularly touched the victim’s vagina when she would visit his home. Other occasions occurred where the victim brought the offender into her bedroom and performed cunnilingus on her. The offender is not being sentenced for these acts, but they provide context for the offending.

Incident 1 (Count 1)

10. Between 22 September 2005 and 21 September 2006, the victim was sitting in the computer room of her grandparent’s house in Padstow, playing a Polly Pocket game. The victim was 7 years old. The offender entered the room and said, “I’ve got something I want to show you.”

11. The victim jumped off the chair and the offender sat down at the desk and accessed a video clip called ‘little miss sunshine’ and paused the video. The offender gestured for the victim to come over. When the victim came closer, the offender put the victim on his lap and started playing the video. The victim immediately observed multiple women in the back seat of a car, partying without shirts. The women began to perform fellatio on the driver.

12. The offender had an erection and moved the victim such that her bottom was against his penis. The offender also held the victim around her chest area. About 3 minutes later, the video finished and the victim jumped off the offender’s lap.

Incident 2 (Count 2)

13. About two weeks later, the offender, the offender’s wife, the victim and her two other male siblings were watching a movie at the offender’s house.

14. The victim and the offender were sitting on a two-seater lounge directly opposite the television. The victim laid down on the sofa with her feet placed on the offender’s lap. The victim was wearing a nightie or dressing gown with underpants underneath.

15. The offender placed a blanket over them and began to massage the victim’s feet with sorbolene cream. The offender moved his hands towards the victim’s upper thigh area, and moved the victim further along him so her feet were up and over the offender’s lap. He began to massage the victim’s upper leg and began to touch her vagina between movements. The offender began to directly rub the victim’s vagina, with the time of the direct touching increasing in length. At one point, the offender pushed the victim’s underwear to one side and began to rub cream on her vagina. He placed the tip of his finger inside the lips of the victim’s vagina and rubbed her clitoris.

16. The offender rubbed the victim’s legs and vagina for almost half the movie.

Incident 4: Part 1 (Count 5 and Count 8)

17. Between 22 September 2005 and 21 September 2007, the victim was laying down on the couch with her feet on the offender’s lap. She was aged between 7 and 8. The offender touched and rubbed the victim’s vagina and clitoris under the cover of a blanket for a period of time. He inserted his finger between the labia majora and rubbed the victim’s clitoris.

18. The victim scrunched herself into a ball. Moments later, the offender gently pulled back the victim’s legs so that they were once again over his lap. The offender began touching the victim’s vagina and clitoris. This conduct occurred throughout the duration of the movie. Following this, the victim went to bed.

Incident 4: Part 2 (Counts 10 and 11)

19. Later that night, the offender came into the victim’s room and carried her into his room. The victim was not fully awake but recalls her grandmother being asleep on the couch in the longue room. The offender laid the victim on his bed and restrained her to the bed frame.

20. The offender pulled the victim’s underwear to her knees, with her legs apart. He then kissed her vagina ten separate times, and then repeatedly touched her vagina with his tongue.

21. In between licking her vagina and clitoris, the offender rubbed the victim’s clitoris.

22. Both of these actions occurred for about 5 minutes.

Victim 2: GW

23. The victim would visit the offender’s home around 2-4 times per week and would stay overnight at least one time per week.

24. In 2009, the victim was in primary school, turning 7 in November of that year.

Incident 1 (Count 13)

25. On one weekend between 1 July 2009 and 31 December 2009, the victim, who was 6 or 7 years old, was watching a movie at the offender’s home in Padstow. The offender was seated on the three-seater longue next to the victim, whilst the offender’s wife and the victim’s brother occupied the two-seat lounge.

26. The victim was lying down on the longue with her feet on the offender’s lap. The offender began to massage the offender’s feet with sorbolene cream. The offender pulled the victim’s feet further along his lap and held her legs near her shins. The offender then used the victim’s feet to masturbate his penis until she got up to go to the bathroom. The victim did not return to the longue room, but went back to her room.

27. After this incident, the same conduct would occur quite regularly until the middle of 2010.

Incident 2 (Count 14)

28. In 2010, the offender and his wife began living at an address in Panania.

29. On a Saturday morning in July of 2010, the victim was playing on the computer in the laundry/study area. The offender entered the room and said, “I want to show you something.” The offender navigated the mouse to access a folder of material, which showed a female having sex with three men. This was viewed by the victim.

30. About 10 minutes later, the victim was shown a couple performing cunnilingus.

31. The victim was unable to move given the positioning of the offender’s arm around her, nor did she say anything. About 2 minutes later, the offender paused the video when the offender’s wife called out to both of them.

Incident 3: Part 1 (Count 15)

32. In late July 2010, whilst the victim was staying at the offender’s house, the offender brushed and plaited the victim’s hair after she had a shower.

33. After he had finished, he placed his hands on the victim’s chest and nipple area and started touching her. The touching was over the victim’s top and continued for five minutes. They then went out for dinner.

Incident 3: Part 2 (Count 16)

34. When they returned home, the victim asked the offender to run her a bath. The offender remained in the bathroom whilst the victim removed her top. The victim tried to get the offender to leave, but he closed the door and began to kiss the victim’s upper chest / breast area for about 5 minutes. The offender then left the bathroom.

35. Throughout 2010, the offender regularly touched the victim’s breast area and continued to massage his penis with her feet.

Incident 4 (Count 17)

36. A few weeks after the victim’s 8^th birthday in September 2010, the victim was watching the movie Titanic on the bed of the master bedroom. The offender was lying next to her and began to massage the victim’s back and shoulder.

37. The offender then began to kiss her legs, and then flipped the victim onto her back and moved her shorts to one side.

38. The offender then placed his mouth on the victim’s vagina and performed cunnilingus. The victim froze. After this occurred, the victim went to the bathroom and put cold water on her vagina.

39. From this point forward, the offender continuously performed cunnilingus on the victim each time she stayed overnight.

Incident 5 (Count 18)

40. Shortly after the victim’s 9^th birthday in September 2011, the victim was once again staying overnight. The offender told the victim he “had a surprise for her”.

41. At around 4-5pm, the offender performed cunnilingus on the victim in the master bedroom, as had become routine. The movie Titanic was playing in the background.

Incident 6 (Count 20)

42. On a Saturday night on October 2011, the offender performed cunnilingus on the victim for about 10-15 minutes in the master bedroom. Again, the movie Titanic was playing.

Incident 7 (Count 23)

43. The last incident occurred in March 2015, when the victim was 13. The offender walked into the victim’s bedroom and groped each breast with his hands. The touching occurred over her training bra.

Uncharged Acts

44. Between 2012 and March 2015, the offender continued to engage in sexual acts with the victim at least once per month, including using the victim’s feet to masturbate his penis, touching her breast area and cunnilingus.

Disclosure

45. In early 2020, GW disclosed the abuse to a friend. On 1 August 2020, the victim told her mother. The victim and her mother confronted the offender at his residence that afternoon, where the offender admitted touching the victim but denied having sex with her.

46. On 2 August 2020, GW and HR disclosed to each other they had been abused by the offender – the police were then contacted who commenced an investigation.

Investigation

47. At about 11:50pm on the same day, Police cautioned and arrested the offender at his residential address, and he was conveyed to Bankstown Police Station where he participated in an electronic interview.

48. During this interview, the offender made a number of comments and admissions with respect to HR. These included denying causing her to watch pornographic videos and denying that he caused the victim to masturbate his penis. However, he made a number of admissions, including agreeing to have performed cunnilingus, touching her vagina, restraining the victim and admitting there were lots of times such activity occurred.

49. In relation to GW, the offender, among other things, denied causing the victim’s feet to massage his penis and denied having penile-vaginal intercourse. However, the offender made a number of admissions, including performing cunnilingus, showing the victim pornographic videos and agreed there was regular touching of the victim’s vagina.

50. During the interview, the offender opined “I don’t want these kids having to go through what I put them through, but if there is something that’s not quite right.”

51. A search of the offender’s premises was carried out on 1 September 2020, where Police located a black case containing numerous polaroids of intimate images.

Victim Impact Statements

52. I received and have read Victim Impact Statements from both victims.

53. Each of the victims read those statements in court. I do not underestimate the courage it took to do so in front of family and others who were gathered in court at the sentence hearing.

54. These statements spoke of the devastating impacts the offending has had on both victims. The statements spoke of the severe physical, mental and emotional suffering caused as a result of the abuse. Whilst the offending will take significant time to recover from, both victims have indicated that they refuse to be defined by the offending committed against them. They should be commended for their bravery.

55. The Court acknowledges the strength of the victims in coming to read the statement before the offender and in public. I expressly acknowledge the harm caused to the victims and will take that harm into account as part of the sentencing synthesis.

Objective Seriousness

56. All sexual offences against children are very serious. Children are the most vulnerable victims of such offending and are unable to protect themselves from the predatory nature of the conduct. The significant maximum penalties and standard non-parole periods (if applicable) for the offences are legislative yardsticks to the seriousness with which the community rightly treats such abhorrent behaviour.

57. I do not need to refer to the plethora of judicial pronouncements as to the seriousness of such offending and the expectation that perpetrators will receive significant custodial sentences. Some of these have been referred to in the Crown submissions and I have had regard to them.

58. The offending commenced when the victims were just young children and there was for the duration of the offending a significant age differential between them and the offender. Both of these matters are relevant to the seriousness of the offending. The offending against HR occurred when she was between 6 years and 10 months and 8 years and 10 months of age. The offending against GW occurred when she was aged between 6 years and 10 months and 12 years and 6 months. The offender was aged between 59-69 when he engaged in the offending conduct. The offending took place over a 10-year period.

59. The facts disclose that there were several types of abuse perpetrated on the victims. The offending ranged from indecent assault through to sexual intercourse. The sexual intercourse offences were of differing forms. They involved digitally manipulating and penetrating the vagina of the victims and performing cunnilingus on each of the victims.

60. Whilst the indecent assaults themselves are serious, the sexual intercourse offences are objectively more serious and obviously carry more significant penalties. Taking into account the whole of the circumstances, I do not consider that the digital penetration is to be taken as being manifestly objectively less serious than the cunnilingus, although I regard the cunnilingus as slightly more serious. I do not intend to grade the various counts of intercourse according to their form. They each involved forced intercourse on the innocent victims.

56. The offending also lasted for differing durations. The fact that one offence lasted for a shorter time than another does not, of course, reduce the trauma to the victim of the offending. Some offending was said to have been for 5 minutes, others for 10-15 minutes. Again, whilst the offending that lasted longer can be legitimately considered as being more serious, it should not be thought that a sexual assault of shorter duration is not traumatic for a victim. None of the sexual contact was fleeting or momentary.

57. The offender was sometimes brazen in his offending conduct, with the conduct being carried out as other family members were in the room watching television or a movie. The offender sometimes disguised his evil actions with a blanket or used the subterfuge of massage (of either the victim or of his own penis) to access the victims for his own gratification. At other times he simply entered the victim’s rooms, or offended where they were situated whilst visiting his and his wife’s house. On one occasion he took one of the victims from her room to his to abuse her.

58. Some of the offending involved an element of grooming, with the offender showing the victims pornography before, or whilst, offending against them.

59. The Crown has provided a table of its submitted objective seriousness of each of the counts by reference to the conduct (at pp 6-7 of the written submissions). Counsel for the offender in his written submissions, without further elucidation or reasoning, submitted that “the Defence places this offending at the mid-range of offending of this type”.

60. For HR:

1. Count 1 involved the offender approaching HR whilst she was alone. He placed her onto his lap and showed her a pornographic film. He moved the child against his erect penis. I regard this offending as being at the mid-range.

2. Count 2 occurred whilst other family members were watching a film in the same room. The offender was near the victim. He placed a blanket over her and began to massage her feet using cream. He moved his hands to her upper thigh and eventually, after moving the victim closer, began touching and then penetrated the victim’s vagina. This continued for almost half of the time the movie was playing. I regard this offending as at the mid-range.

3. Count 5 and count 8 occurred in the same incident. Count 5 happened when the victim again had her feet on the offender’s lap whilst on the couch. The offender touched and rubbed her vagina and clitoris, achieving penetration. This is mid-range offending. The victim scrunched herself up into a ball. This did not deter the offender who pulled her legs back onto his lap no doubt so he could continue his abuse. He again touched her vagina and penetrated her whilst touching her clitoris, and continued doing so for the duration of the movie they were watching. I place this offence at just above the mid-range.

4. Count 10 and 11 occurred later the same night. The offender went into the victim’s bedroom, scooped her up and took her to his bedroom. He pulled her underwear down to her knees. Her legs were apart. He kissed her vagina and penetrated the lips of her vagina several times. He then used his hands to open her vaginal lips and rub her clitoris. He performed cunnilingus and rubbed her clitoris for about 5 minutes. Each of these offences are just above the mid-range.

66. For GW:

1. Count 13 occurred when the victim was on the lounge with the offender under a blanket. They were watching a film. Seated on the lounge next to them was the offender’s wife and the victim’s brother. The offender used sorbelene cream on the victim’s feet and manipulated her feet to masturbate his penis. I regard this offending at being about the mid-range.

2. Count 14 occurred when the victim was playing a video game alone. The offender entered and sat her on his lap and showed her pornographic films on the computer. He effectively restrained her with his arms so she could not get away. I regard this offending as at about the mid-range.

3. Count 15 involved the offender touching the victim’s breast and nipple area when they were alone in a bedroom after she showered. This is offending about the mid-range.

4. For count 16, later the same night as count 15, the victim asked the offender to run her a bath. He remained in the bathroom as she undressed and kissed her breasts. I regard this as being about the mid-range.   

5. Count 17 took place when the victim was lying on her stomach in a bedroom watching a movie with the offender laying next to her. He began to kiss her legs and then flipped her over and performed cunnilingus on her. The victim froze and afterwards went to the bathroom and placed cold water on her genitals. She had just turned 8. I regard this at the mid-range of offending.

6. Count 18 occurred shortly after the victim’s 9^th birthday. She was staying at the offender’s house. He performed cunnilingus on her whilst she was watching a movie. Again, I place this at about the mid-range.

7. Count 20 involved another episode of the offender performing cunnilingus on the victim whilst she was watching a movie when she was staying at his house. This abuse persisted for 10-15 minutes which places the offending above the mid-range.

8. Count 23 occurred when the victim was 13. The offender walked into her bedroom and grasped her breasts over her training bra. I regard this as being below the mid-range.

Aggravating / Mitigating Factors

67. All of the offending against each victim is aggravated by reason of the fact that the offences occurred whilst the victims were under the authority of the offender in that they had come to visit or stay at the house occupied by him and his wife who was their maternal grandmother – see section 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 (NSW). Further, I consider that all of the offences are aggravated by reason of the fact that they were committed in the home of the victim’s grandparents where the victims were entitled to feel safe.

68. The Crown also submitted that the offending is aggravated by reason of the fact that the victims were vulnerable, considering the victims were away from and isolated from their own home and parents - see s 21A(2)(l) Crimes (Sentencing Procedure) Act. I do not consider this aggravating factor applies. Whilst vulnerability is not an element of the child sexual offences, each has an element of age and the youth of the victims is thus taken into account in the offences themselves. In any event, as articulated by the Crown, I consider this factor is also encapsulated by the victims being under the authority of the offender, or in the house of their grandparents.

69. The Crown also submitted that s21A(2)(g) applied as an aggravating factor in that the offending caused substantial injury and emotional harm to the victim. I have referred to the victim impact statements given by the victims. Considerable caution must be exercised in using those statements alone to find this aggravating factor applies. I do not consider the aggravating factor should be held to apply here. In saying this, I do not want the victims to think that I am downplaying the significant trauma they experienced and the harm it caused them. That harm will be recognised as part of the sentencing synthesis the court is to undertake.

70. In terms of mitigating factors, the offender entered pleas of guilty to the offences (s 21A(3)(k)). In terms of the statutory discount to be applied, whilst the Crown submissions note different dates for various pleas, as I understood the position, it was accepted at the sentence hearing that the offender should receive a 25% discount on the sentences to reflect the utilitarian value of the plea - see s 25D(2) Crimes (Sentencing Procedure) Act.

71. The offender does not have any prior criminal record (see s 21A(3)(e)). He is also of prior good character (s 21A(3)(f)). Good character does not apply as a mitigating factor in child sexual assault matters where the court is satisfied that the good character was of assistance to the offender in carrying out the offences (for example in assisting him in access to the victims) - see s 21A(5A) Crimes (Sentencing Procedure) Act. I do not consider the court could be so satisfied on the material, but I accept the Crown submission that good character is of less relevance in child sexual offence matters where there is a course of repeated sexual offending against young children: R v PGM [2008] NSWCCA 172 at [43]-[44].

72. As to the offender’s remorse and prosects of rehabilitation (s 21A(3)(i) and (h)), I will return to these matters after I consider the offender’s subjective case.

Subjective Factors

73. As to his subjective case, there are several reports placed before the court from which the offender’s subjective case can be discerned.

Psychological Report of Dr Gordon Elliot, dated 19 April 2022

74. At the time of the report, the offender was 76 years old.

75. The offender was born on 11 March 1946 in Wollongong but moved to Bankstown at the age of 5. He grew up with his mother and grandmother, as his father was in the air force and never around. He had only met his father once, for a period of 15 minutes.

76. The offender lived a lonely life as a child, but enjoyed school and was generally a good student. He suffered two dislocated hips at the age of 14 requiring a long stay in hospital and resulting in him missing two years of school. After leaving school, he worked initially as a stockman but spent the majority of his life working in retail.

77. He has no biological children of his own but has three adult stepchildren.

78. The offender has had three to four sustained intimate relationships, but the long term-relationship with his wife was his key relationship. When questioned as to whether he was sexually attracted to children, the offender replied “no, not until I did it (the index offences). It has disgusted me for years, and I just don’t know why, but I did it.”

79. The offender has watched pornography on the internet, but denies ever viewing child pornography. He currently has no sexual function due to medical conditions.

80. The offender denied ever seeing a psychiatrist or being in contact with community health. He volunteered to see a counsellor following the death of his wife, and this counsellor convinced him to keep going with his life despite significant grief. He has not consulted with mental health services in custody.

81. The offender confirmed his extensive medical history and added some detail. The offender stated obesity became a problem after his wife’s death, where his weight climbed to almost 140kg. However, he has dropped nearly 40kg more recently.

82. The offender rarely drank prior to his arrest. He has never taken an illicit drug.

83. Dr Elliot opines that the offender suffers from no major mental illness and is not significantly cognitively impaired. He denies long term paedophilic fantasies or sexual attraction to children.

84. The Report opines his risk of recidivist sexual offending is low and does not suggest he requires ongoing formal psychiatric care.

Psychological Report of Dr Stephanie Bennett, dated 26 February 2024

85. This report corroborates much of what was said during Dr Elliot’s earlier report, and the below information outlines important aspects of Dr Bennett’s report which are materially different to the earlier report.

86. The offender was not sexually or physically abused as a child. Although his mother struggled to make ends meet, she was able to provide for his basic needs. The offender suggests his hip injury sustained when he was 14 sent him on a trajectory of being socially isolated in adulthood.

87. The offender reported being socially isolated since the death of his wife in 2017. Prior to the arrest, he was living in Department of Housing accommodation.

88. In 2005, the offender’s wife became wheelchair bound, during which they were no longer able to have sex. The offender agreed his sex drive remained the same and he commenced watching more frequent pornography. He denied engaging in any non-mainstream sexual practices.

89. The offender confirmed a number of physical conditions he suffers.

90. Following the death of his wife in 2017, the offender experienced a number of psychological problems. These included poor sleep, low mood and passive suicidal thoughts. He expressed he saw a GP who diagnosed him with Depression and referred him to a psychologist for approximately 4-5 months. He suggests this was helpful. He has never been prescribed antidepressants or similar medication.

91. He reports still experiencing sadness and depressing moods when thinking about his wife’s death, as well as sadness and guilt regarding his offending actions and the impacts it has had. He has low energy levels.

92. The offender has no prior criminal history.

93. The offender reported some lack of awareness as to what led to his offending, stating that he “can’t fathom why” he committed such offences. The offender says he hopes the victims will get some form of closure having him either in gaol or dead, and indicated that he understood they had been so badly hurt. The offender states he “failed as a person” and “betrayed” the victims. He suggests he feels he ‘deserves’ to be in gaol.

94. The offender presents with remorse, although Dr Bennett opines that identified impacts on the victims was “at a surface level”.

95. The STATIC-2002R score suggests the offender is in the ‘Well Below Average Risk’ of sexual recidivism.

96. Risk factors include that his risk is low due to a number of factors, including his age, lack of mental illness, remorse and that it is a first-time offence. The risk assessment indicated he was well below average risk of sexual recidivism.

97. The BDI-II Report indicates he has a mild degree of depressive symptoms, but the DSM-5 criteria indicates there is not enough information to suggest he is experiencing a diagnosable psychological condition.

Medical Report of Dr Jacques Ette, dated 8 April 2022

98. This medical report outlines a significant number of conditions that the offender suffers from. I do not intend to list them all, but I note that they are many and varied. The offender seems to be receiving adequate treatment for his ailments and conditions at the moment. There is no evidence before me that the health conditions suffered by the offender will shorten his life expectancy, or if so, to what extent.

99. There are two other medical reports which do not add anything of significance to the medical status of the offender.

Moral Culpability

100. There is nothing in the material which would support a finding, and no submission was made by counsel for the offender, to the effect that the offender’s moral culpability is reduced by reason of any mental health issue or matters relevant to his background. In my opinion, no such factors exist. There is no matter which reduces the offender’s moral culpability for the offending.

Remorse

101. I accept that the offender expressed remorse to the psychologist. He has said he is disgusted in the offending behaviour and does not know why he did it. I will give the expression of remorse some weight, but not as much weight as if the offender had offered it in evidence in Court.

Risk of reoffending and prospects of rehabilitation

102. As noted, the offender is currently 78 years of age. He has multiple health issues. He has been assessed as being a low risk of re-offending. Having regard to his health issues, including those affecting his sexual functioning, I do not regard him as being a significant risk of re-offending. His prospects of rehabilitation, should he live to be released to parole, are reasonable.

Sentencing Principles

103. I must have regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act.

104. I consider here that general deterrence is a significant factor. The Courts must send a clear and constant message to persons who are inclined to engage in the abhorrent practice of sexually abusing children that they will be met with severe punishment.

105. The community rightly expects the Courts to appropriately denounce and punish offenders who engage in this type of reprehensible behaviour for their own sexual gratification and ignoring the trauma and impact on the victims. I again expressly acknowledge the harm done to the victims and to child sexual assault victims generally.

Impact of age and health of the offender

106. There were no substantive submissions made by Counsel for the offender on these matters. The extent of the submissions in writing were that the offender’s physical health … “is such that he shall certainly die in jail serving this sentence”, and that “his health means his sentence will be more difficult to serve”. A submission for a finding of special circumstances followed.

107. The Crown did make submissions on this matter. It was noted that advanced age will not, of itself, lead to a lesser sentence.

108. Advanced age is a relevant factor of the offender’s subjective case at common law. Regardless, the court must still impose a sentence that reflects the objective seriousness of the offending.

109. Age may be relevant when, considered with other factors, as affecting the length of the sentence. The impact of age as a mitigating factor on sentence depends on the circumstances of the case, including the offender’s life expectancy and any treatment he may require: R v Sopher (1993) 70 A Crim R 570 at 573. Further, when serving a term of imprisonment will be more onerous because of age, there may be some discount on sentence: R v Mammone [2006] NSWCCA 138 at [45].

110. The relevant principles were summarised in Liu v R [2023] NSWCCA 30 at [39] as follows:

“It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present:

(1) Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.

(2) Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.

(3) Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.

(4) Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.”

111. As to the offender’s health, it can be seen that he has a myriad of health complaints. Some appear serious, requiring repeated medical attention, others less so. The evidence before me indicates that he is getting necessary treatment whilst he is in custody. Whilst serving his sentence in prison may be more burdensome because of the need for treatment of his assorted health conditions (and his age), I do not consider there is any evidence to support a finding that serving his sentence in prison (or the length of the sentence) would further significantly impact in any adverse way on his health.

112. I am conscious of the age and health of the offender and the fact that I must not impose a crushing sentence. However, I must impose a sentence appropriate for the gravity of the crimes, having regard to the subjective matters of the offender and the principles of totality and proportionality. Whilst I will take the age and health of the offender into account as part of the sentencing synthesis, I do not regard his age and health as warranting a significant discount in the sentence to be imposed.

111. The length of the sentence to be imposed and the non-parole period, may mean having regard to the offender’s age, that he will die in gaol. That, however, is a function of the course of the offending he engaged in over a period of years.

112. I will take his health and age into account in making a finding of special circumstances to reduce the statutory ratio.

113. I propose to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999. I am required therefore to set out the indicative sentence for each offence. For sentences which have a standard non-parole period, I must indicate a non-parole period. The 25% discount for his pleas of guilty will be reflected in the indicative sentences, not the aggregate sentence.

114. I accept that in determining the overall sentence I impose on the offender I must have regard to the principle of totality. This requires me to calculate a sentence in respect of each offence, consider the principles governing accumulation and concurrency, and review the aggregate sentence to consider whether or not it is just and appropriate.

115. There will be some notional concurrency for the sentences but there must be some cumulation. Otherwise, the separate and serious criminality of the individual offences against two different victims over a course of ten years would be effectively ignored (see the comments of Wilson J in PN v R [2024] NSWCCA 86 at [63]-[68]).

116. I must look at the totality of the criminal behaviour of the offender, ask myself what is the appropriate sentence for all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.

117. In terms of the matters on the form 1, I will take those into account for the offences to which they attach. The Crown did not submit that this would warrant an increase in the penalties by way of additional weight for specific deterrence or retribution.

118. Many of the offences have standard non-parole periods. Whilst they are important guideposts in sentencing for matters where the offending is at the mid-range of objective seriousness, they are only one matter to consider as part of the sentencing synthesis that has to be undertaken. I will take the standard non-parole periods into account. I do not consider that any of the offending warrants the imposition of a non-parole period equivalent to the SNPP’s. If I were to impose the SNPP’s I consider the resulting sentence would be disproportionate to the totality of the offending and result in a crushing sentence.

119. There will be a finding of special circumstances to reflect the fact that due to the offender’s age and health conditions, his time in custody will be more onerous.

120. The sentence will commence on 3 August 2020, being the date the offender was taken into custody.

Sentence

123. Mr W, for the offences to which you have pleaded guilty, you are convicted.

124. I sentence you as follows:

1. For count 1 (indecent assault person under 10 years), I indicate a term of imprisonment of 2 years and 8 months, which after the 25% discount is 2 years imprisonment. The indicative non-parole period is 1 year imprisonment;

2. For count 2 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;

3. For count 5 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;

4. For count 8 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 9 years, which after the 25% discount is 6 years 9 months imprisonment. The indicative non-parole period is 3 years 5 months imprisonment;

5. For count 10 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;

6. For count 11 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 8 years, which after the 25% discount is 6 years imprisonment. The indicative non-parole period is 3 years imprisonment;

7. For count 13 (indecent assault person under 16 years), I indicate a term of imprisonment of 2 years, which after the 25% discount is 1 year and 6 months imprisonment. The indicative non-parole period is 9 months imprisonment;

8. For count 14 (commit act of indecency), I indicate a term of imprisonment of 18 months, which after the 25% discount is 13 months imprisonment;

9. For count 16 (indecent assault person under 16 years), taking into account count 15 on the form 1, I indicate a term of imprisonment of 2 years and 8 months, which after the 25% discount is 2 years imprisonment. The indicative non-parole period is 1-year imprisonment;

10. For count 17 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;

11. For count 18 (sexual intercourse with person under 10 years), I indicate a term of imprisonment of 10 years, which after the 25% discount is 7 years and 6 months imprisonment. The indicative non-parole period is 3 years and 9 months imprisonment;

12. For count 20 (sexual intercourse with person under 10 years), taking into account count 23 on the form 1, I indicate a term of imprisonment of 12 years, which after the 25% discount is 9 years imprisonment. The indicative non-parole period is 4 years and 6 months imprisonment.

125. I set an aggregate term of imprisonment of 20 years with a non-parole period of 10 years.

126. The sentence commences on 3 August 2020 and expires on 2 August 2040.

127. You will be eligible for release to parole on 2 August 2030.

128. For convenience, a summary of the offences and the indicatives sentences and non-parole periods are set in a table annexed to these reasons.

129. I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious offences” including many of the offences for which you have been sentenced.

130. In summary, this means the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the court considers you would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.

131. It is, therefore, in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

Annexure A: Table of Offences

Offence		Nature of Offence	Maximum Penalty	SNPP	Indicative Sentence	Indicative Non-parole period
Count 1 - S 61M(2) Crimes Act 1900 (NSW)	Indecent assault with person under 10 years	Showing victim pornography / pushing bottom against penis	10 years imprisonment	5 years imprisonment	2 years and 8 months 2 years (25% discount included)	1 year
Count 2 - S 66A Crimes Act 1900 (NSW)	Sexual intercourse with person under 10 years	Digital penetration	25 years imprisonment	15 years imprisonment	8 years 6 years (25% discount included)	3 years
Count 5 - S 66A Crimes Act 1900 (NSW)	Sexual intercourse with person under 10 years	Digital penetration	25 years imprisonment	15 years imprisonment	8 years 6 years (25% discount included)	3 years
Count 8 - S 66A Crimes Act 1900 (NSW)	Sexual intercourse with person under 10 years	Digital penetration	25 years imprisonment	15 years imprisonment	9 years 6 years and 9 months (25% discount included)	3 years and 5 months
Count 10 - S 66A Crimes Act 1900 (NSW)	Sexual intercourse with person under 10 years	Cunnilingus	25 years imprisonment	15 years imprisonment	10 years 7 years and 6 months (25% discount included)	3 years and 9 months
Count 11 - S 66A Crimes Act 1900 (NSW)	Sexual intercourse with person under 10 years	Digital Penetration	25 years imprisonment	15 years imprisonment	8 years 6 years (25% discount included)	3 years
Count 13 - S 61M(2) Crimes Act 1900 (NSW)	Indecent assault person under 16 years of age	Using victim to masturbate penis	10 years imprisonment	8 years imprisonment	2 years 1 year and 6 months (25% discount included)	9 months
Count 14 - S 61O(2) Crimes Act 1900 (NSW)	Commit act of indecency	Showing victim pornography	7 years imprisonment	N/A	18 months 13 months (25% discount included)	N/A
Count 16 - S 61M(2) Crimes Act 1900 (NSW)	Indecent assault person under 16 years of age	Kissing of breasts	10 years imprisonment	8 years imprisonment	2 years and 8 months 2 years (25% discount included)	1 year
Count 17 - S 66A Crimes Act 1900 (NSW)	Sexual intercourse with person under 10 years	Cunnilingus	25 years imprisonment	15 years imprisonment	10 years 7 years and 6 months (25% discount included)	3 years and 9 months
Count 18 - S 66A Crimes Act 1900 (NSW)	Sexual intercourse with person under 10 years	Cunnilingus	25 years imprisonment	15 years imprisonment	10 years 7 years and 6 months (25% discount included)	3 years and 9 months
Count 20 - S 66A Crimes Act 1900 (NSW)	Sexual intercourse with person under 10 years	Cunnilingus	25 years imprisonment	15 years imprisonment	12 years 9 years (25% discount included)	4 years and 6 months
Matters to be dealt with on a Form 1
Count 23 - S 61M(2) Crimes Act 1900 (NSW)	Indecent assault person under 16 years of age (attached to Count 20)	Touching of breasts over bra	10 years imprisonment	8 years imprisonment	Taken into account in Count 20
Count 15 - S 61M(2) Crimes Act 1900 (NSW)	Indecent assault person under 16 years of age (attached to Count 16)	Touching of breasts over top	10 years imprisonment	8 years imprisonment	Taken into account in Count 16

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Decision last updated: 28 August 2024