R v DX (No 3)

[2011] NSWDC 186

District Court

New South Wales

Medium Neutral Citation:	R v DX (No 3) [2011] NSWDC 186
Decision date:	11 October 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Overall term of imprisonment of 2 years 11 months.  Overall non-parole period of 1 year 2 months.  For details see [61-79]
Catchwords:	CRIME - sentence - historic sexual offences - 1 count of assault with act of indecency on child under 16 years, offence no longer in legislation -2 counts of commit act of indecency, offence no longer in legislation- 12 counts of commit act of indecency - sentencing practice at date of commission of offences -committed by uncle on nieces when girls were 6 to 8 years old -breach of trust - offender now 72 years old and in poor health - plea of guilty but disputed facts hearing - victim impact statements from both victims - favourable character references - offender confessed to police - offence of sexual assault in mid to high ranger of seriousness - conduct over period of time on a number of occasions against 2 victims - unlikely to re-offend - has already rehabilitated himself and prospects for further rehabilitation are good - remorse - whether or not sentence could be suspended
Legislation Cited:	Crimes Act 1900 s 76, s 76A
Cases Cited:	R v Ellis (1986) 6 NSWLR 603 R v Moon (2000) 117 A Crim R 497
Category:	Sentence
Parties:	Regina DX
Representation:	Mr ML Barr for the Director of Public Prosecutions Ms S Goodwin for the offender
File Number(s):	2010/66496
Publication restriction:	It is an offence to publish the name, or any information that identifies a complainant in sexual offence cases.

Judgment

1. I am sentencing a man who acted indecently towards his nieces over thirty years ago. One of them, who was only six to eight years old at the time, he seriously sexually assaulted as well. That sexual assault had a profound impact on the life of that little girl, now in her thirties.

2. The offending behaviour drove a wedge through the family and left the older sister with feelings of guilt for not protecting her younger sister. The offender, DX, is now a seventy-two year old man who is in poor health. He is before me for sentence largely because he went through a process of owning up to his criminal behaviour and seeking professional help. Not only that, he confessed to the police.

3. The sentences which I have to impose need to balance the gravity of his conduct towards these two innocent little girls against his age, health and confessions. However, there is an additional factor. His confession to the police was at odds with the recollection of the two victims as to what he actually did in some respects. I had to resolve those differences by a hearing which required both the women to give evidence and to be cross-examined.

4. It is important in sentencing anyone for the judge to set out just what happened so far as the offending behaviour was concerned so that people know the detail of the crimes which the judge is taking into account in sentencing the offender.

5. I am sentencing DX for the following crimes. The first and most serious is that between 1 January 1978 and 1 June 1980 at Hornsby he assaulted CY who was then under sixteen years of age, namely, four, five or six years of age, and at the time committed an act of indecency on CY. That was an offence against the then s 76 of the Crimes Act 1900 and, at that time, carried a maximum of six years imprisonment.

6. In addition, I am sentencing DX for two crimes called committing an act of indecency. They were committed against the same victim, CY. They are offences against the then s 76A of the Crimes Act and carried a maximum of two years imprisonment.

7. In addition, I am sentencing DX for twelve other crimes. Each of them is the crime of committing an act of indecency. They were committed against the two sisters CY and then SZ on six separate occasions. When he committed these crimes against both girls he committed two crimes on each occasion, one against each girl. Hence, there are twelve offences covering each of the six occasions. Again, the maximum is two years imprisonment.

8. DX has pleaded guilty to all of those offences. Before the committal and on 8 November 2011 he pleaded to all of the acts of indecency but as for the twelve offences of acts of indecency committed on the six occasions against the two sisters, the basis of his plea of guilty was different to what was asserted had occurred by the two sisters. That was a matter which I had to resolve.

9. DX was committed for trial for the most serious offence of sexually assaulting CY and in the days leading up to the trial in this Court there were discussions between the legal representatives of DX and the prosecution and on the day of the trial he pleaded guilty to that offence.

10. I should add here that the names of the victims which I have mentioned - CY and SZ - are not to be published outside this court room nor is the name DX. The reason for that is because the victims of sexual assaults are entitled by the law to have their identities protected. That means it is an offence for anyone to reveal outside the Court the names of any victims or any information which may disclose their identities. Because DX is the uncle of the two victims, revealing his name would also identify the two victims.

11. I now need to briefly recite what occurred which gave rise to these charges which I have referred to. I am taking the account largely from the evidence of the two victims, CY and her sister who is now married and is SZ.

12. I will refer to CY's evidence first. The evidence of CY first deals with the offence of sexual assault against her and two of the acts of indecency committed on her.

13. CY's father and her uncle, the offender DX, worked together as carpenters and builders. DX was CY's mother's brother. DX and the girls' father would come back home after a day of work and DX would offer to take the Wallace children for a drive in his Mini.

14. CY was asked by the Crown Prosecutor Mr M Barr, who appeared for the Director of Public Prosecutions in the sentence proceedings, about the occasions when she went or was taken for rides in DX's Mini. She described one occasion when DX stopped the car and asked her to get out. He sat on the edge of his seat with his feet out on the dirt on the rock with the door open. He then started to masturbate.

14. I should add that CY indicated that as they were driving she should see his penis exposed through his shorts.

15. Returning to when they had arrived and he was masturbating CY went on to say that DX " asked me if I could keep a secret ". Naturally, the girl said yes. He told CY that she was very special to him and if she told anybody about their driving in the Mini and what they did when they got to the end and what he was doing, " our families would no longer be allowed to go on holidays together, that would destroy our family holidays and they wouldn't understand. He told me that I was just very special and we had a special thing ."

16. On one occasion DX asked her to touch his penis. She said that she was scared and confused " because I didn't think that anybody who loved me would do anything wrong to hurt me. I was too young. I didn't know if this was right or wrong. So I trusted him, he asked me to put my mouth around it, I didn't want to ." He told her to come over and put her mouth around it. He took her by the hand and pulled her down gently, not in a rough manner, but coaxed her down and he " told me just to bend down and put it in your mouth for a little bit. I still remember the smell, I still remember being scared, but at this point I remember knowing that if I had said anything to anyone about this that I would be destroying all of our family fun. I had his penis in my mouth, he was using his hand to masturbate it. I remember him saying to be gentle, don't bite it at which stage it's probably actually crossed my mind, but I was just too scared ."

17. His penis was inside her mouth for not very long. He asked her to put his penis back into her mouth because he had not finished what he was doing. She put her mouth back around it and he kept rubbing it with one hand and " then he told me I could stop and asked me to watch as he got his hankie out of his pocket and ejaculated into his hankie and told me the reason that happens is because it likes me so much. " He reminded her that it was their secret and that she was special and not to tell anyone.

18. He asked whether she wanted to drive the Mini again and whether she wanted to keep going on holidays. Naturally, she did want to keep going on holidays because they had what she described as a "great relationship with our cousins and my aunty and I didn't want to ruin that so I didn't say anything ".

19. CY remembers being taken to the same place on other occasions. She remembered him exposing himself and masturbating until he ejaculated into his handkerchief. It took place on a number of occasions over a six to twelve month period.

20. The crime of sexual assault against s 76 of the Crimes Act comprises the act of DX asking his young niece to put her mouth around his erect penis. The two crimes of acts of indecency comprise him masturbating to ejaculation in the presence of his niece on two occasions.

21. I mention the other occasions that these events of masturbating occurred which are referred to by CY only to indicate that the events were not isolated. It is important to see that they were in the context of it happening more than once but I am sentencing DX only for the three crimes which I have referred to.

22. I now move to the twelve offences of acts of indecency committed on six occasions in the presence of CY and her sister, then SZ. I take up the account of CY first. The girls used to go to DX's house in Berowra Heights. The parents were, as I said, very good friends. The parents would stay up late, naturally, and the girls were put to bed in the bed of DX and his wife. Their bedroom was upstairs.

23. CY remembers DX coming upstairs to use the ensuite toilet. As he was coming out of the toilet she heard him whispering to her sister SZ. CY had her eyes closed. Then, as she said, " the curiosity got the better of me " and she opened her eyes to see what was going on. Then she said that she " saw him standing there at the end of the bed with his penis out masturbating ". To make it more specific she said she saw him, " rubbing his hand up and down his penis which was erect ". She did not see any ejaculation. She thought that generally he was there probably for a good five or ten minutes. She did not hear the detail of any conversations with her sister except she heard the word " masturbation " being used. She thought it happened about six or so times.

24. The recollection of her sister SZ was remembering her uncle coming in to use the toilet " and then coming out with his penis hanging out and touching it and him coming and trying to ask me to touch it ". She thought he was sitting on the bed and he said to her that it was okay for her to touch it. She said she did not want to touch it and she never did. She recalled him saying to her that " it's a secret, you shouldn't say anything about this ." She quoted him as saying that it was " our little secret ". She remembered that it was half a dozen times that it happened. She recollected him saying the word " masturbation " once. She could see him through the reflection of a mirror in the bedroom, " playing with his penis ". Asked whether she could say whether he saw her looking she said that she was pretty sure he did. She " glanced up and looked and saw him looking and then sort of, you know, took my eyes away, because I found it revolting ". He was looking in the mirror towards her direction.

25. Asked whether there were any discussions with DX about the consequences if his behaviour was revealed she answered " would never get to see his children again probably like not have our holidays to Forster and it was about all very rarely ."

26. I have referred briefly to the impact which this offending behaviour had on the two victims. Each of them gave a victim impact statement. I propose to refer to passages from the victim impact statements. In referring to those passages I make this clear. Neither Mr Barr nor Ms S Goodwin of counsel who appeared for DX argued that anything in the victim impact statements amounted to aggravating behaviour. I accept that and do not place any weight on anything in the victim impact statement which renders the behaviour more aggravating and which would increase the sentence. However, the victim impact statements describe just that, the impact of this kind of crime on the victims. It must be borne in mind that Parliament can fix penalties to crimes such as fines or, one the other hand, penalties which are far more serious such as gaol terms. In fixing gaol terms of six years and two years to the two kinds of offences which are involved in this case Parliament does that knowing the kind of impacts which these sorts of crimes can have on their victims. That is why it is important to refer to that impact.

27. CY is now thirty-seven she said that she is " still discovering all the ways that the abuse I suffered has hurt me, has set my life on the wrong course, and how it has destroyed the normal childhood, teenage years, early adulthood, and parenthood that everyone deserves." She said she felt she could not confide in her parents " because my uncle had told me we had a special love, but that I had to keep it a secret, otherwise our family gatherings at Christmas and other holiday times would stop and I would be to blame ." She felt guilty about not telling her parents, the feelings of guilt got worse every time the families got together which was by the sounds of it fairly regularly.

28. She tried to put the memories of what her uncle had done to her behind her when she went to high school but it rarely worked. She was embarrassed at high school to talk about anything sexual during class discussions. Naturally that was part of the school curriculum. Nor did she feel comfortable talking about the human anatomy. She struggled through those classes; she found excuses to avoid the subject. She struggled with her social life as a teenager, she avoided interacting with boys, she was scared of any boy having an interest in her, she made up excuses to avoid parties. She "t hought any boy who was interested in me would expect me to do the same things I had to do to my uncle, and this terrified me ." She felt like a social misfit. She had a nickname which was " Frigid CY ". She wanted to crawl under a rock and hide. She was understandably " very confused about what love was ". She could not understand how her friends could fall in love with boys.

29. She found it hard to focus on work when she left school. Often she would be thinking about what her uncle did to her. She would have trouble at work, particularly if her boss was male. It would bring back memories.

30. She learned that her uncle had become a " born again Christian ". She turned her anger into hate for him and any born again Christian. She was still keeping what she described as " this dirty secret " feeling more anger and hatred towards the Church, which she regarded as now protecting him. She felt hurt and angry that she had not been protected from him as a child. She felt there was no one she could trust especially anyone who was part of a church. She said that when she was eighteen she still felt no self worth. She wished she was normal like her friends. She wanted to forget what had happened.

31. She said the most important thing for her was to be a mum one day and she was scared it would never happen because she had never had a boyfriend. Her friends were going out and enjoying nightclubs. She said that she also started drinking "which numbed my thoughts, and I found it helped me forget about the past, and realised this made it easier to socialise and dance with boys ." She felt a different person. She started dating a man and she was easily influenced by him. He introduced her to marijuana " which totally numbed any thoughts I was once consumed with ". She said life was easy to deal with like this " and I was abusing my body to help hide the pain ".

32. She became pregnant and stopped drinking and smoking. She became married to that man and their son was born. She put all her energy into caring for their son " but found myself thinking about my uncle's abuse more and more". Their marriage suffered; her husband could not understand " why I had become distant from him in sexual ways and asked me if I was having an affair ". He then challenged her about whether she had been molested and she then told him what had been happening. Once she told him, he told her parents. She said this was " the hardest thing to talk about with my parents, as I still felt it was my fault, especially for not telling them when I was a child ". The relationship with her husband suffered even further. She had two more children with that man but they fought regularly. The relationship broke down and they divorced.

33. She said she has done her best to put all of this behind her and to learn to trust others a little more. She met another man " who gave me confidence in myself, which I had never felt before ". They started dating " but after a few months, he left me, and told me he felt I was distancing myself from him, which put doubts in his mind about us ". She decided to be honest from the beginning and she explained to him what had occurred. She said that she was now " glad to have found someone who has been understanding and most of all patient with me, and we now have a beautiful boy together, and a healthy relationship ."

34. The revelation of DX's behaviour caused division within the family which CY also refers to in her victim impact statement. Her father developed cancer, unrelated of course to anything to do with this case, but the family needed what CY described as " some quality time together ". However the issue came up because members of the family wanted to find out what had actually happened and to discuss the issue in detail. CY felt that she was " cheated of my precious time I had left with my dad, and the last thing we wanted was to relive and remember the sexual abuse again. "

35. The victim impact statement of CY's sister, known as SZ, focuses on how she felt about the abuse perpetrated on her sister. She said she had always looked up to her uncle and respected him. She said that the abuse she suffered was not as horrific as that of her sister's and that she has " always been able to carry on with life in general and maintain a normal and healthy relationship with my husband by choosing to move on, not to say what he did was inexcusable." She goes on to say however that her " sister on the other hand was suffering in silence and unknown to me, I could have saved her from being robbed of her childhood at the hands of this person, had I just summoned up the courage to tell a parent about the abuse that I received ."

36. She feels guilty still about what might have happened if she had revealed what was going on. She was then about eleven years old and she was too frightened to tell anyone. She also focussed on the turmoil which the exposure of what she described as her uncle's " dirty little secret " brought about within the family. She said that " for twelve years he deceived everyone which had driven the wedge between our extended families and for twelve years my family lost quality time with them, time which my father never got to see his younger sister ." That is a reference to DX's wife.

37. I have, I repeat, referred to those victim impact statements because they describe why Parliament regards crimes such as this committed against children as so serious and why Parliament fixed gaol terms to offences such as these. The two victim impact statements also describe graphically how these crimes can impact differently upon the victims. One victim might be more resilient and find that they can get on with their life. Another victim might be more vulnerable and find that it seriously affects their life. References to the impact which it has on the families are not relevant to the sentencing but puts the offending behaviour in a particular context.

38. I need to make some reference to some of the other exhibits. I have a detailed exhibit about medical facilities which are available in custody. I have an exhibit comprising DX's criminal record which contains absolutely nothing in it. He has committed no other crimes before. Significantly, I have exhibits which were tendered by Ms Goodwin which contain details of DX's various medical conditions. They are from various doctors including specialists who are treating him for these conditions. The conditions include multiple myeloma, hypertension, obstructive sleep apnoea, renal calcification, depression and obesity. These conditions are all referred to in the medical reports which Ms Goodwin has tendered.

39. In addition Ms Goodwin tendered a number of very favourable personal references from various referees. It is either clear from the references themselves or I readily infer that the referees know that DX is facing court for sexual offending committed many years ago. He is regarded as a good friend, reliable, honest and hard working. He is regarded as having a high moral character. He has taken roles of leadership within his church. He is described as a devoted husband, father and grandfather. Referees refer to DX undergoing a change in his life since these events which have led him to becoming a better person. He is, as described, a dedicated Christian. He is a great help to others in need. His own brother of seventy years has referred to him as a trustworthy husband, father, grandfather, family and community member. There is no reason to question his honesty and integrity, the referees say. Referees refer to the traumatic time which the disclosure of these offences and the proceedings which have followed have had upon DX and his wife.

40. Shaun Walker, the senior pastor at his church who gave evidence before me, knows the details of the offences and continues to regard DX highly. He describes him in the time that he knows him as " honest, caring and trustworthy ". He is held in high regard by the people in the church which he attends. His work and conduct is regarded of a high standard. He is described as a changed man.

41. A number of the referees understandably ask that I exercise leniency in DX's case. That is a matter which I will come to but I make it clear that there is a good deal of evidence that DX is a man who is regarded by people who have known him for very many years as a person of good character and those are persons who have knowledge of the offences that I am sentencing him for.

42. I have been considerably assisted by the submissions of Mr Barr and Ms Goodwin. There are obviously particular legal difficulties which confront a judge in sentencing someone who committed crimes so long ago. In one case, perhaps two cases, the crimes are no longer on the statute book. A judge needs to take into account what kinds of sentences might have been imposed at the time by a judge. These factors have been the subject of submissions by Mr Barr and Ms Goodwin and I have been referred to decisions of the higher courts, particularly the New South Wales Court of Criminal Appeal and I naturally accept what those courts have said, in particular what Howie J said in R v Moon (2000) 117 A Crim R 497.

43. Ms Goodwin realistically acknowledges that an aggravating feature of these offences was a breach of trust on the part of an uncle towards his nieces. Mr Barr naturally also urges me to make that finding. That finding of course must be made.

44. I might say that I will not take into account as an aggravating factor that the offences which were committed in the bedroom in the presence of the two girls were committed in the presence of a child. I do that in favour of DX because I am sentencing him as well for the offence committed against the other girl.

45. Also I am not sure that any of the offences that I am sentencing him for occurred within the girls' homes.

46. I must take into account the fact that DX has himself confessed to these crimes and took himself to the police. The relevant factors there were discussed by the Court of Criminal Appeal in a case called R v Ellis (1986) 6 NSWLR 603.

47. I need to make an assessment of how serious an example of the crime the particular offences are. In this case, that finding needs to be made especially regarding the offence of sexual assault which comprised DX asking his niece to put her mouth over his erect penis. Mr Barr argues that it falls in the upper range of seriousness for these sorts of crimes. Ms Goodwin realistically and correctly acknowledges that the crime must fall within the mid to high range. Mr Barr does not disagree with that classification.

48. I regard that particular offence as being an example of a crime which was grave. It does fall in my opinion in the mid to high range of seriousness for these sorts of crimes. The range of offending which was encompassed by that crime back in the 1970s and 1980s was very wide. As Ms Goodwin said, it could stretch from the lightest indecent touch through clothes to digital penetration of the vagina or anus of a child. This offence, although short in duration and not attended by any threats, did involve penetration and it involved penetration of the victim's mouth by the erect penis of her adult uncle who was entrusted with her at the time. That is why I regard it as being in the mid to high range for theses sorts of crimes.

49. In the various factors that have been helpfully canvassed by Mr Barr and Ms Goodwin I take the following into account. The exposure and masturbation on the second occasion was in my opinion planned and makes it slightly more serious than the exposure and masturbation on the first occasion. The offences which occurred in the bedroom were slightly less serious because they occurred in the dark. I take into account, as I have said, that DX has no previous convictions and was a man of good character and is still a man of good character. But on the other hand this was not a one-off offence committed in a lapse of judgment by a man otherwise of good character. It was conduct perpetrated over a period of time on a number of occasions against two victims.

50. In my opinion, DX is unlikely to re-offend. He has, in a sense, already rehabilitated himself. His prospects for further rehabilitation are good. He is, in my opinion, very remorseful for what he did. It has to be taken into account, so far as assessing that remorse, that he did dispute the accounts given by the two sisters and required them to be cross-examined. Nevertheless, his remorse is obvious to me.

51. He has pleaded guilty to all of the crimes but the value of the plea of guilty is said by the Court of Criminal Appeal to be measured very much by reference to when it was entered. In the case of the two offences which were the indecent acts committed in the car - the masturbation in the presence of CY - they were entered early. So were pleas to the indecent acts committed against the two sisters on six occasions, but the facts were in dispute. DX claimed that he did not masturbate on those occasions, but just exposed himself. He required both CY and SZ to come and give evidence of what they said occurred and through his counsel cross-examined them, suggesting that that was not what had occurred. I have found in a separate judgment that I accepted the accounts given by both sisters.

52. DX was quite entitled to take this course. It does not aggravate at all the sentence which I would impose. However, it does deprive him of some value to his plea of guilty. The same applies so far as the sexual assault against CY is concerned. That was a crime which he said did not involve any putting of his penis into her mouth and I found that it did.

53. I take into account the factor, referred to by the Court of Criminal Appeal in Ellis, that DX came forward himself after very many years.

54. I take into account what is obvious but important to state, that any sentence of full time custody would be more burdensome on DX because of his state of health and because of his age.

55. I take into account the sentencing practice at the date which these offences occurred.

56. So far as the Ellis discount is concerned, in particular, I take into account that CY approached the police as early as 2001, but decided not to proceed at that stage. It was DX himself who went to the police and confessed.

57. Ms Goodwin has urged me to suspend any sentences which I impose. Whether or not I can suspend the sentences depends, of course, on whether or not the sentences exceed two years. It will become apparent in a moment, when I say what the sentences are, that they do exceed two years and that I cannot suspend sentences.

58. In now imposing the sentences, I deal first with the five charges referred to as counts 5, 6, 8, 10, 12 and 14 of act of indecency committed against CY in the bedroom when DX masturbated in the presence of her and her sister. They are offences against s 76A of the Crimes Act . I have in mind that an appropriate sentence would be ten months imprisonment. However taking into account DX's age and health I would regard an appropriate sentence as seven months imprisonment. I am going to reduce that sentence to five months, allowing a fifteen per cent discount for plea of guilty, plus the Ellis consideration. I propose in due course to fix sentences of five months imprisonment for each of the six offences of acts of indecency committed towards CY in the bedroom.

59. I propose to fix exactly the same sentences for the same reasons in respect of the six acts of indecency committed against SZ on the same occasions.

60. There is an argument that each of those sentences could follow the other. There are two victims and six occasions that he committed the crimes. But that would result in an overall sentence which, in my opinion, would exceed the criminality involved. The offences against each of the sisters was committed on each occasion against both sisters at the same time. I do propose to partially accumulate the sentences but a good deal of those sentences will be concurrent.

61. For the act of indecency compromising DX masturbating in the presence of CY when he took her out in the car on the first occasion I have in mind that an appropriate sentence would be twelve months imprisonment. However, bearing in mind DX's age and poor health I would reduce that to nine months. In addition, I would discount the sentence by twenty-five per cent because of his early plea of guilty to that offence and I would also take into account the Ellis consideration and I would reduce that sentence to six months imprisonment.

62. For the masturbation occurring on the second occasion there was, as I have said, an element of planning involved on that occasion. I can be satisfied beyond reasonable doubt that he knew what he was going to do on that occasion. I have in mind, as an initial sentence, fourteen months imprisonment for that crime. I would reduce that to ten months because of DX's age and poor health. I would again discount that by twenty-five per cent, plus the Ellis consideration, and fix a sentence of seven months imprisonment for that offence. Once again there must be some accumulation between those two penalties and so far as the other offences were concerned.

63. I turn now to the most serious offence, which is the indecent assault committed against CY. As I said, I regard that as being an example of the crime in the mid to high range of seriousness for that kind of offending. The maximum fixed by Parliament is six years imprisonment. The plea of guilty was entered on the day of the trial, but there were negotiations over a few days beforehand. But on the other hand the facts were in dispute and CY was required to attend to give evidence. I regard an appropriate discount for the plea as ten per cent but I would increase that to twenty per cent because of the Ellis factor. I think, given where it lies in the seriousness for these sorts of crimes, given the maximum of six years, I would regard an appropriate sentence as four years imprisonment, but I would reduce that to three years imprisonment because of DX's age and poor health. Applying the discount of twenty per cent I would reduce that three year sentence to a sentence of two years and four months, or twenty-eight months.

HIS HONOUR: DX, I am going to sentence you now, if you stand up please. Are you able to stand? You do not have to if that - all right.

64. For charge number 5, act of indecency against CY by masturbating in the bedroom, I sentence you to a fixed term of five months imprisonment to commence today, 11 October 2011, and to expire on 10 March 2012.

65. For charge number 6, the same offence on a different occasion against CY, I sentence you to a fixed term of five months imprisonment to commence in one week's time, 18 October 2011, and to expire on 17 March 2012.

66. For count 8, the same offence against CY on a separate occasion, I sentence you to a fixed term of five months imprisonment to commence a week later on 25 October 2011 and to expire on 24 March 2012.

67. For count 10, the same offence committed against CY on a separate occasion, I sentence you to a fixed term of five months imprisonment to commence a week later on 1 November 2011 and to expire on 31 March 2012.

68. For count 12, the same offence committed against CY on a separate occasion, I sentence you to five months imprisonment to commence a week later on 8 November 2011 and to expire on 7 April 2012.

69. For count 14, the same offence committed against CY on a separate occasion, I sentence you to five months imprisonment to commence a week later on 15 November 2011 and to expire on 14 April 2012.

70. For count 3, the act of indecency offence against SZ committed on the first occasion, I sentence you to fixed term of five months imprisonment to commence on 11 January 2012 and to expire on 10 June 2012.

71. For count 7, the same offence committed against SZ on a separate occasion, I sentence you to five months imprisonment to commence one week after the commencement of the first sentence in respect of her, namely on 18 January 2012, and to expire on 17 June 2012.

72. For count 9, the same offence committed against SZ on a separate occasion, I sentence you to five months imprisonment to commence a week later on 25 January 2012 and to expire on 24 June 2012.

73. For count 11, the same offence committed against SZ on a separate occasion, I sentence you to five months imprisonment to commence a week later on 1 February 2012 and to expire on 30 June 2012.

74. For count 13, the same offence committed against SZ on a separate occasion, I sentence you to a fixed term of five months imprisonment to commence one week later on 8 February 2012 and to expire on 7 July 2012.

75. For charge number 15, the same offence committed against SZ on a second occasion, I sentence you to a fixed term of five months imprisonment to commence a week later on 15 February 2012 and to expire on 14 July 2012.

76. For charge number 1, which was the act of indecency committed against CY on the first trip in the car, I sentence you to a fixed term of six months imprisonment to commence on 11 March 2012 and to expire on 10 September 2012.

77. For count number 4, the act of indecency committed against CY on the second trip in the car, I sentence you to a fixed term of seven months imprisonment to commence on 11 April 2012 and to expire on 10 November 2012.

78. For count 1 on the indictment, the offence of sexual assault against CY against s 76 of the Crimes Act , I fix a non-parole period of seven months to commence on 11 May 2012 and to expire on 10 December 2012. The balance of the term will be twenty-one months commencing on 11 December 2012 and expiring on 10 September 2014.

79. The overall sentence which you have received is two years and eleven months. It commences today, 11 October 2011, and expires on 10 September 2014. The non-parole period which you must serve is one year and two months - fourteen months - commencing today, 11 October 2011, and it expires on 10 December 2012. The balance of the term is one year and nine months, commencing on 11 December 2012 and expiring on 10 September 2014.

HIS HONOUR: Have a seat, DX.

80. In fixing a non-parole period which does not correspond with the ratio contained in the Crimes (Sentencing Procedure) Act 1999 I take into account special circumstances in fixing that parole period as being less than that ratio. In particular I take into account the fact that the sentencing practice at the time when these crimes were committed usually reflected a non-parole period of between one-third and a half of the overall sentence. By my calculations the non-parole period is forty per cent of the sentence which I have imposed.

81. Under s 50 of the Crimes (Sentencing Procedure) Act I make an order directing your release on parole on 10 December 2012.

HIS HONOUR: Ms Goodwin, Ms Arul, in a moment I will return to my remarks on sentence, but it might be helpful for me to hand this down, this document, what the sentences are and if you, Ms Goodwin, Ms Arul, would just check the mathematics, I am pretty sure it is right. And secondly, just have a think about whether any conditions of parole are required. I doubt it, but I will just conclude some remarks on sentence.

82. For those who support DX and have asked me to be lenient, it is important to bear in mind two things. The first is that the more serious of the crimes he committed carried a maximum of six years imprisonment. The other crimes carried a maximum of two years imprisonment. It also needs to be borne in mind that the kind of behaviour which DX engaged in with CY when he asked her to suck his erect penis is these days regarded by Parliament as so serious that it fixes a maximum of twenty-five years imprisonment to that behaviour and a standard non-parole period of fifteen years imprisonment. That has not been a relevant consideration for me. I have fixed DX's sentence by reference to the maximum then applying of six years imprisonment and the seriousness with which I regarded that particular conduct committed by him in the wide range of conduct which was then encompassed by the offence.

83. For those who support the victims, CY and SZ, it is important to bear in mind that one of the significant issues in this sentencing was whether or not DX would go to gaol. I gave serious consideration to whether I should send to gaol and elderly and sick man who may well - we do not know - die in gaol. However, because of the seriousness, the gravity of the crimes which he committed I felt I had no choice but to impose the sentences which I have.

GOODWIN: Your Honour, I think that your figures are accurate and correct.

HIS HONOUR: Ms Arul?

ARUL: Yes, your Honour.

HIS HONOUR: I have ordered his release on parole, as you know. Any conditions of parole?

GOODWIN: Not in my submission, your Honour.

HIS HONOUR: No, I don't think so, really. I don't think he needs supervision at all. He really has rehabilitated himself. Ms Arul? If you think there are I will give consideration to it.

ARUL: He is still continued to work with children, as I understand, your Honour, young people.

GOODWIN: He should be put on the Child Sex Register as a consequence of these matters, which may have some bearing on that.

ARUL: Yes.

HIS HONOUR: That happens, doesn't it? He would be - now I don't know, I need your help there. As a result of this conviction, and he was convicted--

84. I must say, for the record, if DX has not been convicted formally, I formally convict him of all of the crimes for which I have sentenced him.

HIS HONOUR: There is the record, so he is convicted on those offences. Does it follow that he--

GOODWIN: There are various Tables - there's schedules as part of the Child Sexual Offender Prohibition Act or whichever Act is the current register--

HIS HONOUR: Yes, but do they contain--

GOODWIN: I think it would include these. I must admit I haven't confirmed that as so, but--

HIS HONOUR: So the question we are addressing is Ms Arul's valid concern, do I need to fix conditions of parole concerning DX being around children. I'm not sure I do, but--

GOODWIN: In my submission that's not an appropriate condition to fix for only a parole period in any event, your Honour, but certainly insofar as it may assuage the Crown's concern I would have thought - and again I can't confirm off the top of my head - but I would have thought that he will fall to be registered on the Sex Offenders Act on the register.

HIS HONOUR: He has also got grandchildren, so I'm not sure how they fit in with a sex offender, I assume that a sex offender is able to see their grandchildren--

GOODWIN: I think they have to nominate which children they see, your Honour, and how often they are going to be seeing them.

HIS HONOUR: I think what I would be inclined to do, Ms Arul, is if you think that on reflection, having looked at the legislation concerning sex offenders, that I should impose a condition of parole, then we will re-list the matter in a week or two weeks, something like that, and I will hear you. But I think you need to look at the legislation because my guess is that Ms Goodwin is right, that the sex offenders legislation would have its own regime for protecting people from him.

ARUL: No, your Honour.

HIS HONOUR: I don't think so, I don't think he needs supervision.

ADJOURNED

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Decision last updated: 30 November 2011