R v Fatefehi
[2025] NSWDC 124
•4 April 2025
|
New South Wales |
Case Name: | R v Fatefehi |
Medium Neutral Citation: | [2025] NSWDC 124 |
Hearing Date(s): | 4 September 2024 – 24 September 2024, 7 November 2024 & 28 February 2025 |
Date of Orders: | 04 April 2025 |
Decision Date: | 4 April 2025 |
Jurisdiction: | Criminal |
Before: | Montgomery DCJ |
Decision: | Aggregate sentence of imprisonment for 7 years with a non-parole period of 4 years and 7 months |
Catchwords: | Criminal law — Sentencing — Sexual Offences — Aggravated Sexual Assault — Section 61J(1) of the Crimes Act 1900 (NSW) — Where complainant under the age of 16 years — Whether Offender was in a position of “authority” or “trust” — Whether Offender’s continuing claim of innocence prevents a finding of positive prospects of rehabilitation — Whether continuing claim of innocence affects assessment of recidivism risk |
Legislation Cited: | Crimes Act 1900 (NSW) |
Cases Cited: | Al Dhaifa v R [2024] NSWCCA 108 |
Texts Cited: | W Wan, S Poynton, G Goorn and D Weatherburn, “Parole Supervision and Reoffending” (2016) 149 Australia & New Zealand Journal of Criminology 4 |
Category: | Sentence |
Parties: | Rex (Crown) |
Representation: | Prosecution: Mr Walmann |
File Number(s): | 2023/00007581 |
Publication Restriction: | Non-Publication Order regarding identity of the complainant. |
JUDGMENT
Isileli Fatefehi (“the Offender”) was born in October 1976. Presently, he is 48 years of age. Following a trial before a jury of 12, he was convicted on 24 September 2024 of two offences of sexual assault against a then 15-year-old female (“the Victim”) in circumstances of aggravation against section 61J(1) of the Crimes Act 1900 (NSW).
That the Victim was under the age of 16 years at the time of the offences is the circumstance of aggravation upon which Crown relied at trial: section 61J(2)(d); Trial Elements Document MFI 25; Sentence Hearing Crown Written Submissions MFI 2. Each offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.
The offending occurred in the early hours of 17 December 2022.
The Offender was arrested on 9 January 2023 and has remained incarcerated since.
There are no Form 1 matters to be taken into account.
FACTS
The Offender was in a relationship with the Victim’s mother (“Mother”) at the time of offending and had been for approximately 1 ½ years prior.
The Offender was aged 46 years at the time of the offending.
The Victim was born in January 2007 and was aged 15 years, 10 months and 17 days at the time of the offending.
The age difference between the Victim and the Offender was 30 years and 3 months.
The Offender resided with the Victim and Mother at Mother’s home.
The Victim referred to the Offender as “Stepdad”.
During the day of 16 December 2022, the Victim and Mother had an argument about the Victim’s use of marijuana in the house. Mother was concerned that exposure to the Victim’s cannabis smoke would affect the urinalysis she expected to undergo in her attempt to regain custody of her and the Offender’s son (“J”). The argument turned into a violent altercation. The Offender separated them on two occasions during their fight.
After the argument, Mother left the premises and went to her friend’s house, where she stayed for the remainder of the evening and night.
The Victim remained at home with the Offender over the night of 16 to 17 December 2022 and into the day of 17 December 2022.
At around 3 AM on 17 December 2022, the Victim went to bed and fell asleep. She was wearing a grey Tommy Hilfiger sports bra, pink pyjama shorts and underwear.
At approximately 4:30 to 5 AM, the Victim was woken from her sleep when she felt the Offender touch her. She was laying on her side while cuddling her pillow and pretended to remain asleep because she was scared. The Offender licked his fingers and touched the Victim’s clitoris. The Victim could feel the Offender’s weight on top of her as she remained laying on her side. After touching her clitoris, the Offender pushed his fingers inside the Victim’s vagina. The Victim did not consent to the accused penetrating her vagina with his fingers (COUNT 1).
The Offender then penetrated the Victim’s vagina with his penis. He was not wearing a condom. The Victim did not consent to the Offender penetrating her vagina with his penis. The Victim continued to pretend to be asleep while the Offender was penetrating her vagina with his penis (COUNT 4). The Victim could hear the Offender’s heavy breathing behind her while he was having penile-vaginal intercourse with her. The Offender had penile-vaginal intercourse with the Victim for approximately 5 minutes before ejaculating on the Victim’s back.
After engaging in penile-vaginal intercourse with the Victim, the Offender moved off the Victim and laid on his back beside her for approximately 5 to 10 minutes. The Offender eventually stood up from the bed and grabbed the Victim’s towel before wiping her bed and her back.
The Offender tried to pull the Victim’s pants up but left them hanging around her waist. He then lay alongside the Victim on her bed and fell asleep for approximately an hour. During this time, the Victim pulled up her shorts and left her bedroom. She took her bong into the lounge room because she wanted to smoke marijuana.
The Offender was wearing a black shirt and black track pants when the Victim left her room. The Victim returned to her room to get a lighter, by which time the Offender had woken up. The Offender jumped up and looked at the Victim. The Victim acted as if she did not know what had occurred and chose not to confront the Offender.
The Victim asked the Offender to pass her phone, which he had been lying on. The Victim then returned to the lounge room to smoke marijuana from her bong. Shortly afterward, the Offender followed the Victim out of the bedroom and complained that he was hungry. He went into Mother’s bedroom and found a packet of Cheetos before offering it to the Victim.
The Offender returned to the bedroom he shared with Mother and fell asleep. The Victim returned to her room and cut up her marijuana.
At approximately 6:30 AM, the Victim contacted her younger brother (“Brother”) on Instagram. The two of them participated in an Instagram call during which the Victim said she was hesitant to tell Brother what had happened as she feared he would not believe her. After being reassured by Brother, the Victim told Brother, “Izzy raped me when mum wasn’t home”. Brother advised the Victim that she ought to go visit her friend’s house across the road.
At 3:49 PM on 17 December 2022, the Victim attended her friend’s house across the road.
In the afternoon of 17 December 2022, the Victim was driven by her friends from across the road to Mount Druitt Police Station, where she reported the matter.
At about 3:04 PM on 17 December 2022, Mother returned to her home and then walked across the road to the same friend’s house. Mother then walked into her home and confronted the Offender. She said, “What the fuck? [Victim] said you raped her”. The Offender said “I dunno. I dunno what’s going on”. The Offender walked into Mother’s bedroom and spoke with someone on the telephone. The Offender said, “Can you get me an Uber?”.
Mother confronted the Offender again, to which he responded, “Why would she say that?”.
At approximately 4:10 PM on 17 December 2022, the Defendant left the home with a duffel bag.
The Offender and Mother attended Mount Druitt Police Station at around 5 AM on 9 January 2023 and advised the officer at the front desk that the Offender was there to hand himself in. The Offender was arrested and charged and has been bail refused since.
DEFENCE SUBMISSION – MOTIVE TO LIE
The Offender denied the whole episode and that the events of Counts 1 and 4 occurred. The Defence case at trial, which the verdicts show was unanimously rejected by the jury, was that the Victim had made up the allegations against the Offender because Mother and the Offender had “kicked her out” while she was pregnant, which the Victim took to mean that they were prioritising their relationship with J over her.
I refer to the Offender’s motive to lie defence only because later in these reasons it is relevant to understanding the context of what Crown submits to be relevant “attitudes” referenced in the SAR.
POSITION OF AUTHORITY OR TRUST: SECTION 21A(2)(k)
In the agreed facts for sentence, there was little reference to any evidence at trial that went to the facts of the Victim residing with the Offender and having referred to him as her “stepdad”.
Crown written submissions delivered shortly before the sentencing hearing and Crown oral submissions pressed that a relationship of authority or trust between the Offender and the Victim existed, such that the “Offender was the Victim’s stepfather and accepted a position of authority over the Victim, which aggravates the objective seriousness of the offending” (MFI [8(iv)]). Specifically, Crown submitted:
(a)it is not insignificant that the Offender appeared to have the power to effect whether or not the Victim was able to reside at the premises, which would have been significant from her point of view because of how precarious her living situation was - T 22.10;
(b)the Offender, being cognisant of the Victim’s precarious living situation and his ability to have a direct impact on it, might have expected she would not want to jeopardise that by disclosing the offending and that she might have also felt that disclosing the offending could impact adversely upon her precarious living situation - T 22.15;
(c)there was a degree of authority which the Offender enjoyed, and which was abused: “ultimately it was an abuse of a position of trust which does elevate the objective seriousness” - T 22.8-20 [I observe: this argument may have conflated concepts of authority and trust, with which I deal later];
(d)Mother “kicked out” the Victim, and the Victim’s view was that the Offender was the only person who, as a peacekeeper, could prevent the Victim from being kicked out - T 11.45 [I observe: this argument stated that Mother had the power to evict the Victim, whereas (a) stated that the Offender had that power]; and
(e)due to the Offender’s position of authority in terms of the role that the Offender occupied within the dynamics of the house, the Victim would be less likely to resist or complain about the offending, which was exploited by the Offender - T 10.3-49.
Two observations I make in consideration of Crown’s submissions are:
(1)the Victim did not give evidence of her state of mind which Crown submitted she possessed at (a), (b), (d) or (e); and
(2)neither the Victim’s state of mind alleged by Crown, nor the Offender’s state of mind submitted at (a), (b), (d) and (e), were put to the Offender by Crown in the trial.
In support of the submissions (a)-(e) above, Crown relied principally on the SAR, referencing the subheading ‘Attitudes’ (T 12.01), Crown submitted that the Offender perceived himself as “protector” within the household. Indeed, Crown specifically relied on that as “a characterisation of the role he occupied within the dynamics of the home… relevant to an abuse of his position in the home, which the Crown would characterise as an authoritative one… because it enabled him to commit the offending with the assurance that due to the position he occupies within the dynamics of the home, the victim would be less likely to actively resist or complain about the offending subsequently”: T 10.25-40. Of course, the author of the SAR did not have the trial transcript and was only briefed with the “police facts.”
When I asked Crown for reference to trial evidence supporting the submissions (a) to (e) (T 11), I was referred only to the single question and answer at trial (T 22.07):
“Q. Do you say it was your mother and your stepfather that kicked you out?
A. Well, it was their decision, they both made the decision together” (trial T 216.40).
Obviously, the question did not go to whether it was Mother or the Offender who had previously directed the Victim to leave the home. Nor does it adequately characterise the evidence in the trial going to who had the authority to remove the Victim from the home. The single reference did not address the short period of time when the Victim lived in the home prior to the offending. Rather, the question was one amongst a stream of interrogation involving the year 2021 (trial T 215-217).
The trial transcript shows, and it was my understanding of the Victim’s evidence at trial, that Mother had evicted her from living in her home from time to time over the 2 or more years before the offending, and that she had done so even before the Offender resided with Mother. The Victim did not even have contact with Mother between being evicted from Mother’s home on 30 August 2021 and the end of February 2022 (10 months before the offending): trial T 215-216.
The Victim had only been living in the home with Mother and the Offender for 2 months prior to the offending on 17 December 2022 (trial Transcript T 217.45). She had moved in with Mother and the Offender when she had been evicted from the refuge in which she was living. It was Mother who allowed her to return to live in the house: trial Transcript T 217.35. Mother had spoken to the Offender about her “… Getting kicked out of the refuge”, so Mother asked the Offender if the Victim could move back in: T 217.43. That Mother would ask the Offender this question does not necessarily imply that he could veto her decision making.
Crown’s reference to the Offender describing himself as “a protector within the household” in the SAR, under the subheading ‘Attitudes’, on page 3, is of little value because the passage reads plainly that the Offender was not referring to a role of influence over the Victim or specifically in regard to her living in the home, but rather to his sense of betrayal and resentment about the allegations (which he claims were a lie) generally, because he supported the relationship between the Victim and Mother by separating them when they fought, and by providing support for both Mother and the Victim. For the purposes of sentencing, that passage in the SAR cannot prevail over the evidence at trial.
In the Victim’s recorded interview with police, when she was asked what she had come to talk to police about, she used the label “stepdad” in relation to the Offender. I raised with the Crown that the use of that label should be understood in the context of evidence at trial, which portrayed a history of a dysfunctional family and quite some distance and grievance in the relationship between the Victim and the Offender (T 8.45). Crown conceded that the relationship between the Victim and the Offender was “not particularly close” (T 9.32), but that was not a concession compromising the factual submissions (a) to (e).
Crown sought to substantiate the submission of aggravation on the basis of stepfather authority with one sentence of the Victim’s evidence by recorded police interview: “cause (sic) like I’ve never had a, like, father figure so that’s what I thought, that it was just him – it was like him showing me, like, being a dad or something” (T 9.35). The Victim made this comment in reference to the fact that the Offender, despite never previously touching her “sexually or anything”, stroked her face, pet her hair and on one prior occasion sat with her for hours on her bed talking to her and, on that occasion, rubbed her back, which had made her feel uncomfortable.
The Victim had told Mother about this interaction, who had responded that the Offender acted that way because he was on drugs and had no one to talk to (QA 100 A).
In that part of the police interview, the Victim explained her lack of experience with anyone in her life in the father-type role by which she could interpret those interactions. This is where she spoke the passage, relied upon by Crown, which I now repeat to show that context: “Cause, like, I never had a father figure, so that’s what I thought, that it was just, like, him showing me, like, being a dad or something.” (Q 98 A).
Counsel for the Offender agreed that the offending occurred in the circumstance of the Victim being entitled to trust that the Offender, who was in a position of trust, in the context of being Mother’s partner in the household, and his being alone with her in the house for that night, would not sexually assault her as he did do (T 13.22). In my opinion, that concession was appropriately made.
Defence counsel contested Crown’s submission of the Victim submitting to the Offender’s authority at the time of the offending with illustrative reference to the event, evidenced at trial, of the 16 December fight between Mother and the Victim. Defence counsel accurately put that the Victim’s continuation of her violent physical fight with Mother despite the Offender separating them did not support a finding that “[the Victim was in] anyway… taking any of [the Offender’s] direction and especially in that fight because it was particularly vicious and she kept going, and he had to physically separate them on at least two occasions.” (T 13.30).
At the outset, in response to Crown’s submission (e), I note that the Victim did complain of the offending to Brother almost immediately. He advised her to seek assistance from her friends across the road. Nevertheless, the Victim remained in the house while the Offender was sleeping, and while no one else was present, for 9 hours. She stayed there until around 3:48 PM, when she crossed the road to inform her friends of the offending. During this period between the offending and crossing the road to inform her friends, she smoked marijuana in the house.
I note that it was the Victim’s evidence given during the recorded police interview, and a fact which is consistent with the verdicts, that she feigned sleep during the offending because she was scared and felt trapped (Q 33 A). She described the Offender as “really big” and “masculine and scary, I guess” (Q 36 A). It is beyond reasonable doubt on the basis of the trial evidence that the Offender was strong enough to physically separate the Victim and Mother during their 16 December struggle and that the Offender was stronger than the Victim. I take the physical proximity of the Offender to be the basis for the Victim’s fear and feeling of being trapped, as she did not otherwise describe a basis for feeling in such a way.
I repeat, the Victim did not give evidence that she hesitated to resist the offending, as she otherwise might have done, or that she delayed making a complaint, because of fear of the Offender on the basis of his exercising, in some way, power of authority possessed by him in the household, including as to whether or not she was permitted to remain in the household.
During her recorded police interview, she said:
“Q. 33 Ok. Tell me everything from beginning to end about, uh, last night when you were raped by your step-dad.
A. 33 I wasn’t, like, awake beforehand, before, when he came into my room. I wasn’t awake. I only woke up, until, like, I actually felt him inside of me. And he, he was just going for about 5 minutes. And I was just laying there on my side, pretending to be asleep, ‘cause [sic], er, when he came in, he obviously assumed that I was asleep. That’s why he did it. So I just kept pretending to be asleep, ‘cause [sic] I felt scared. And I felt trapped. So I just laid there…” [the victim later gave evidence of being aware of the Count 1 digital sexual intercourse which preceded the penile-vaginal intercourse – e.g.: Q 50, A 50.]
Crown submissions demand assessment of the evidence of the household relationship dynamics. I repeat that, other than set out above, Crown did not respond to my requests for reference to trial evidence it relied upon in its submissions for sentencing: T 11; T 21.45-22.07.
A child was born to the Victim on 12 January 2022, a bit less than 3 weeks before the Victim’s 15th birthday: T 215. 8. The Victim’s son remained in her care for only a few months. She was staying at a family refuge with her son before he entered care with the Department of Community Services because of the unsafe nature of her relationship with the son’s father. Her son was subsequently placed in the care of the Victim’s cousin: T 109. In March 2022, J was born to Mother and the Offender, and, in June or July 2022, J was taken into the care of the Department of Community Services because of problematic drug use of both Mother and the Offender: T 110; 114.40. These were obviously significant events in the history, as the evidence exposed, of the Victim’s relationship with Mother and the Offender.
It is an appropriate place to commence, from the fairly sparse evidence, an assessment of Crown’s argument that the Offender was in a position of authority as put in arguments (a), (b), (d) and (e) above. It is convenient to, at the same time, assess the Victim’s experience from which she could gain a perception of how a father, or a stepfather, might act. This is relevant to determining her intended meaning when she used the label “stepdad” in her recorded police interview.
The Victim only lived with Mother for the first couple of years of her life before going to live with her aunt, on her father’s side. The Victim and Brother (who is approximately 1 year younger than Victim) remained living with the aunt until the Victim was nearly 10 years of age. There is no evidence of the presence of an uncle or other father-type person in that household. The Victim then went to live with her biological father for 2 years, before returning to live with Mother and Brother in 2021 in the house within which the offences later occurred: trial T 110-111.
The Victim’s evidence was that she had been “kicked out” of Mother’s home (not the same house as the offending occurred in) even before Mother had met the Offender: T 216.20-34. Mother and the Victim, during periods when they resided together, argued frequently and engaged in physical violence approximately fortnightly. The Offender, while in a relationship with Mother already, did not move into the household until about 1 ½ years before the date of offending (trial T 668-669).
On 30 August 2021, while living in the house, the Victim told Mother that she was pregnant. Mother then told the Offender: T 112.40-48. The Offender had only cohabited with Mother for about 2 months by that time. Brother was also living in the house at that time. Mother tried to convince the Victim to terminate the pregnancy. The Offender told the Victim that she should have a discussion with Mother about whether she would continue the pregnancy: T 113. 25. Mother and the Victim argued and physically fought, and the fight included Mother slapping the Victim because she refused to terminate the pregnancy: T 113. 30. Afterwards, Mother drove the Victim’s then-partner home, and the Victim left the house in the company of her uncle.
After 30 August 2021, the Victim did not have further contact with Mother until the end of February 2022, some weeks after she had given birth: T 215.35. This was while she was staying at a refuge. The evidence vaguely depicts that the Victim was not regularly or consistently residing in the home within which the offending occurred during the year 2022 until 2 months prior to the offending.
When the Victim was “kicked out of the refuge”, she asked Mother, and she believed that Mother asked the Offender, if she could move back in: T 217.1-44. I repeat my observation that this does not mean the Offender could veto Mother’s decisions. The Victim denied anger, though said she was upset that Mother “couldn’t take me in” (trial T 216.45) and that Mother did not choose the responsibility to “step up” for her as a parent: trial T 240.10.
On the whole of the Victim’s evidence at trial, I understood that she was attributing the authority to kick her out of the house to rest predominantly with Mother, with whom she was angry, because, as she saw it, Mother “didn’t choose the responsibility to step up as a parent” (T 240.10), particularly during the period that the Victim was pregnant, but also in a general way. Mother and not the Offender was, to the Victim, the presiding parental authority, and Mother, not the Offender, was seen by the Victim to predominantly determine whether she was permitted to live within the house. In these matters, the Victim saw the Offender as in a supporting role to Mother.
The above history of events identifies only the period of approximately 2 years spent living with her biological father as the Victim’s experience of a person in the father role, prior to her meeting the Offender. It also identifies that the Victim had lived in Mother’s home when the Offender was present twice for periods of 2 months and for other broken periods, the duration of which is not in evidence.
On 16 December 2022, Brother no longer resided at the house. The only persons within the house were Mother, the Offender and the Victim. After lunch, the Victim was smoking marijuana in her room, and because Mother complained that the marijuana smoke could be smelt through the house and told the Victim to blow the smoke outside, the Victim smoked marijuana in the laundry. The Victim understood that Mother and the Offender did not want marijuana smoke in the house because they were undergoing urinalysis in their attempt to regain custody of J.
After smoking marijuana, the Victim walked up the hallway to the lounge room. Mother and the Offender were in the lounge room. The Offender was asleep. Mother was watching television: trial T 115-116. In the lounge room, Mother and Victim started yelling and arguing about the Victim smoking drugs in the house, which evolved into physical fighting, including punching: trial T 119-120. At some stage, the Offender had woken up and said to Mother, “Control your child”: trial T 116.45. During the prolonged vicious and physical fight between Mother and the Victim, the Offender pulled them apart on two occasions.
The Victim did not describe the fight on 16 December 2022 as a disagreement emanating from or associated with the parental role of the Offender. She described it as directed toward Mother’s parenting. The following quoted passage of her evidence characterised it:
“Q. What, you were unhappy with her that she was putting all the effort into trying to see your brother [J]?
A. I was angry with her because she had just let me moved (sic) back one week after my brother [Brother] was gone, the few months after my [Brother] was gone. Why wouldn’t I be angry with her when she wouldn’t allow me to stay there while I was pregnant?” (trial T 132.10)
During the time the Victim resided at the home where the offending occurred in 2022, whether she could smoke cigarettes was determined by Mother, and the Offender took no part in parenting in that respect. Both Mother and the Offender were, in the assessment of the Victim, of equal strictness toward her. The Offender would support Mother in Mother’s parenting decisions regarding the Victim: T 127.45-128.02.
Not only did the Victim not give direct evidence supporting the Crown submissions of her state of mind in (a), (b), (d) or (e) above, but the evidence at trial does not reasonably support the inference that the dynamics of relationships between the Victim, Mother and Offender establish beyond reasonable doubt that the Offender was in a position of authority such that he could cause Mother to evict the Victim, or that he was cognisant, at the time of offending, that the Victim would be less likely to resist or to report the incident because the Victim feared the Offender would use his authority to kick her out.
I am not persuaded to accept Crown’s submissions of aggravation of objective seriousness on the basis of the fact of the Offender’s position of authority for the purposes of section 21A(2)(k) of the Crimes (Sentencing and Procedure) Act 1999 (NSW).
This does not mean, however, that I am precluded from finding that there was a position of “trust” held by the Offender in respect of the Victim, as was conceded by counsel for the Offender.
The difference between a position of “trust” and a position of “authority” was explained in DPP v Burton [2020] NSWCCA 54, where Basten JA (Rothman and Cavanagh JJ agreeing) said at [30]-[31]:
“Section 21A(2)(k) refers to the offender abusing “a position of trust … in relation to the victim”. The term is used by way of alternative to a position of “authority”. As the cases indicate, it should be understood as referring to an established relationship, rather than simply a situation in which the victim asserts trust in the offender, or a social arrangement involving a close-knit group. As Howie J had explained in Suleman v R the aggravating factor “is not made out simply because the victim trusted the offender for some reason or other.
A position of trust is not a precise term but may be understood as covering relationships involving an obligation of care and protection, as compared with relationships involving authority over another. Thus, parents, child minders, health workers and other similar relationships may constitute positions of trust…”
Recently, Garling J (McNaughton and Weinstein JJ agreeing) said in Al Dhaifa v R [2024] NSWCCA 108 at [62]:
“The first of these two sub-sections invite a sentencing Court to identify whether the offender was in a position of trust with respect to the victim, or a position of authority with respect to the victim. This is determined by addressing any indicia of the position of the offender vis-à-vis the victim. These may include, but are not limited to, whether the victim lived in the same house as the offender, whether the offender was a parent, step-parent, or otherwise in loco parentis, the age differential between the offender and the victim, whether the offender held a position of authority — such as a schoolteacher or police officer, which could affect how a victim perceived them.”
While the Offender would break up the fights between Victim and Mother, their established relationship, in the context of the dysfunctional family environment, was not one properly identified as truly that of a stepparent to a child. Their relationship had existed for a relatively short duration. His position as an adult partner of Mother was that, in the realm of parenting, he was subservient to the role of Mother, who was the dominant parent. Though I say dominant parent, it must be recognised that the Victim did not truly enjoy any close and constant parenting, even from Mother. This appears to have been a tragic reality present through her life up to the point of the offending.
Positions of “trust” and “authority” within s 21A(2)(k) are not precise terms. In my opinion, Defence counsel’s concession that the Offender was in a relationship of trust with the Victim more accurately characterises the relationship between the Victim and the Offender for the purposes of s 21A(2)(k). The Defence concession acknowledges, and I agree, that there is a degree of aggravation of the objective seriousness of the offences on account of the breach by the Offender of the Victim’s entitlement to trust that the Offender would not, in Mother’s absence, sexually assault her while she slept in her own bed on the occasion of the offending. She was properly entitled to trust that she would be safe and secure in her bedroom in her home when the Offender was present.
OFFENDING IN THE HOME – SECTION 21A(2)(eb)
Crown submits that commission of the offence within the home of the Victim is an aggravating factor in the assessment of objective seriousness: MFI 1 [8(v)]. It has previously been held in the New South Wales Court of Criminal Appeal that this provision, and the earlier common law, does not establish that it is an aggravating factor when an offence is committed in the home in which both the offender and the victim reside, but is only an aggravating factor when the offender is not lawfully on the premises: MH v R [2011] NSWCCA 230 at [34].
More recently, the New South Wales Court of Criminal Appeal has observed the aggravation to be concerned with the expectation of safety and security that is abrogated when offending occurs in a victim’s home, even when the offender is legally within the home at the time of offending: Montero v R [2013] NSWCCA 214 at [54]; Johnson v R [2016] NSWCCA 286 at [28]-[31].
Applying that recent approach, the objective seriousness of the offence was aggravated, as the Victim’s right to security when in her bedroom at home was abrogated by the Offender entering and committing the Count 1 and Count 4 offences.
ATTITUDES – REHABILITATION AND RISK OF REOFFENDING
Crown submits that the SAR gives foundation for finding “attitudes” of the Offender which weigh heavily on assessment of the Offender’s prospects of rehabilitation and assessment of his risk of reoffending. Crown identified the “attitudes” as follows:
(1)victim blaming: T 14.42;
(2)claims of innocence: T 14.44;
(3)a failure to demonstrate any reflection or insight into his offending: T 14.48;
(4)a rigid stance against having problematic sexual interests or behaviours: T 15.09; and
(5)the above providing a “collective impression” of him: T 15.03.
The Offender does maintain his innocence. As already observed, he blames the Victim for bringing what he submitted were false allegations on the basis that she was motivated to do so within the dysfunctional family situation, particularly because of the conflicts between herself and Mother, and her being kicked out of the home while pregnant. The Offender denies the need for attending sexual offender programs on account of denying that he sexually offended. The SAR also records the Offender’s claim of abhorrence for sexual intimacy with children and taking sexual advantage of children.
In my view, it is important to appreciate the blaming of the Victim by the Offender within the whole context of the SAR report. It is not in evidence anywhere that the Offender blamed the Victim for the intimacy or the sexual acts, but, rather, that the Offender blamed the Victim for false allegations as part of his motive to lie defence at trial. The reason this is important is because, in another case, an offender blaming a victim may speak directly of the offender maintaining that the victim is to be blamed for provocative behaviour, or for engaging in sexual intercourse. That was not the case here.
I repeat that the motivation to lie defence was rejected by the jury and cannot discount the sentence which must be consistent with the verdicts.
Crown puts its submission as high as the Offender’s attitudes preventing a positive finding for his prospects of rehabilitation and that they provide a substantial barrier to a finding that he is unlikely to reoffend. Crown submitted as follows at T 15.33-45 (underlined for emphasis):
“… What this reflects is not only a denial of the offending, but an attitude towards the verdicts, and an attitude towards the allegation, which would prevent your Honour from making a positive finding with respect to his prospects of rehabilitation. Not only is there an absence of remorse, but there is an attitude that he does not need to be rehabilitated, he does not need to do anything to be rehabilitated. There is the presence of an obstinate attitude towards the convictions and that weighs, in the Crown’s submission, heavily against any finding that he has positive prospects of rehabilitation, and, in the Crown’s submission, it would also present a substantial barrier to your Honour making a finding that the offender is unlikely to reoffend because he has expressed such strong and obstinate attitudes towards their convictions.”
And at T 18.11-19 (also underlined for emphasis):
“What the Crown is submitting is that your Honour would not be satisfied on the balance of probabilities that he has positive prospects of rehabilitation, and the reason your Honour would be unable to make that finding to that standard is because of a complete absence of insight into the offending behaviour, which the Crown submits would be an expected pre-requisite to a finding that he has positive prospects of rehabilitation.”
I observe that the SAR does inform of the following:
(1)at the time of the offending, the Offender participated in serious drug and alcohol misuse;
(2)this is the Offender’s first experience in custody, and he describes it “as a pivotal moment in his life and expresses a strong determination for it to be his first and last period of incarceration”;
(3)the Offender reports a commitment to making meaningful and positive changes in his future life;
(4)the Offender is clean of drugs for an excess of 2 years since he has been incarcerated and his past long-standing history of illicit substance use was a coping mechanism following significant personal losses, including the deaths of his grandmother, mother and brother;
(5)the Offender is ineligible for custodial-based sex offending programs because his risk of reoffending was assessed at only “Average”;
(6)the Offender has expressed willingness to engage in interventions to address his drug use and bereavement-related mental health challenges;
(7)the Offender completed community service under supervision for 9 months in 2021-22 for a traffic offence and completed a traffic offender program, but there were multiple unexcused absences, a failure to attend initial inductions and repeated excuses for non-attendance;
(8)after reference to the Static-99R statistical assessment of “Average”, the author of the SAR noted the Offender had been assessed at a “Medium” risk of reoffending; and
(9)if the court makes a supervision order, Community Corrections would supervise the Offender at the T3/Medium supervision level, meaning he would be required to have contact with a Community Corrections Officer every 2 weeks, which would work as follows:
(i)the Offender would participate in behavioural change interventions aimed at decision-making, managing cravings, increasing self-awareness and promoting a prosocial lifestyle;
(ii)he would be referred to a local general practitioner for the development of a Mental Health Care Plan;
(iii)he would be referred to a specialist drug and alcohol service for targeted intervention to address his substance use and support his overall well-being;
(iv)he would be encouraged to engage in appropriate mental health services; and
(v)he would have no conditions other than supervision, as recommended by the author of the SAR who found him suitable to undertake community service work.
Nothing in the SAR can be fairly taken to mean that the Offender has attitudes which would “prevent” or cause this Court to “be unable to make” a positive finding of prospects of rehabilitation, nor does the SAR report reveal “attitudes” which would be a “substantial” barrier to dealing with the author’s assessment of Medium risk of recidivism, and the statistical analysis of Average risk of recidivism, in the normal way, upon consideration of the whole of the evidence.
A court is not permitted to penalise an offender for pleading not guilty at trial: Siganto v R (1999) 159 ALR 94 at [22]. In Alseedi v R [2009] NSWCCA 185, Giles JA (Hidden and McCallum JJ agreeing) observed at [64] that the judge at first instance was wrong for reasoning as follows:
“It is difficult to find that the offender has good prospects of rehabilitation, and, in fact, I cannot make that finding. The most obvious impediment to that finding being made is that the offender continues to maintain his innocence. His failure to admit his guilt suggests that nothing, apart of course from the sentence I must impose upon him, will prevent him from in future doing something similar to what he has done in the past.”
Giles J explained at [65]:
“At this point in his remarks his Honour did not acknowledge the matters favouring unlikelihood that the appellant would reoffend to which he had earlier referred. His only stated reason for declining to find good prospects of rehabilitation was that the appellant continued to maintain his innocence. That is by far from necessarily inconsistent with unlikelihood that he would reoffend; there can be rehabilitation without confession, and offenders found guilty after a trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt. I consider that his Honour gave the matter undue weight without proper regard to the otherwise favourable matters.”
See also Ali v R [2010] NSWCCA 35 per Johnson J (McClelland CJ at CL and RS Hulme J agreeing) at [48].
As Defence counsel properly conceded, the Offender’s maintenance of his claim of innocence disallows a finding of remorse to be taken into account in his favour. In this way, he has placed himself in a position of some disadvantage. Lack of remorse, while a factor to be taken into account in determining the Offender’s prospects of rehabilitation, is to be considered in a synthesis along with other factors, including that the Offender has no antecedent criminal record of sexual assault or violence, and that his Corrective Services record reveals no breaches, as well as the observations of Dr Millic, Clinical Forensic Psychologist, whose report of 6 November 2024 will be taken into account later in these reasons.
In Kumar v R [2011] NSWCCA 139, Adams J (Hodson JA and Hall J agreeing) said at [23]:
“whilst the continuation of the [offender’s] claims of innocence were relevant to the subjective factors of remorse, contrition and rehabilitation, they were in no sense aggravating features of the offences. The need to deter others from making “false claims” of innocence is not and never has been a function of sentencing. It cannot be an element of general deterrence; that function of sentencing is directed to deterring the commission of others of the offence in question. And, because it is not an offence, it cannot be justified by the need to prevent such false claims by the offender being made in the future.”
In my view, the correct approach to sentencing, as identified in those cases, is to take into consideration, with the whole of the evidence, in the synthesis of sentencing, each of Crown’s submissions toward assessment of prospects of rehabilitation and assessment of the risk of reoffending, but none of the “attitudes” are an aggravating feature.
OBJECTIVE SERIOUSNESS
The jury determined beyond reasonable doubt that both events of sexual intercourse comprising Count 1 and Count 4 occurred while the Offender knew that the Victim was not consenting. Crown argued that the Offender’s knowledge arrived from more than the mental element of recklessness or an unreasonably based belief in the Victim’s consent. Defence counsel did not contest the fact of actual knowledge.
In the circumstances of the Victim feigning to be asleep, there being no prior or surrounding relationship of intimacy between them, an age difference of more than 30 years and the Offender being Mother’s partner, it is established, beyond reasonable doubt, that the Offender committed each of the Count 1 and Count 4 offences while possessing actual knowledge that the victim was not consenting. The moral culpability for these objectively serious offences is not mitigated, as it might be in another case, where the Offender held an honest but unreasonably based belief that the victim was consenting: Pender v R [2023] NSWCCA 291 at [55].
That the Victim was under the age of 16 years is an aggravating factor: section 61J(2)(d) of the Crimes Act 1900 (NSW). Her being only 6 weeks short of attaining that age, logically means that the aggravation is less than it would be for offending which involved a younger Victim.
When moving from a different part of the home to the bedroom the Offender shared with Mother, the Offender had to pass the Victim’s doorway. As he was doing so on the early morning of 17 December 2022, he entered the Victim’s bedroom and, finding her asleep, entered her bed and proceeded with the Count 1 and Count 4 offences. From the point of the Offender seeing the Victim sleeping, the Offender’s conduct can only be seen as a course taken with planning towards the intended result of offending. However, the planning was not sophisticated, and I find there to have been substantial opportunism.
I am satisfied, beyond reasonable doubt, that the Victim’s state of fear and subjugation caused her to feign sleep, and the mental trauma of her fear must be considered in the assessment of objective seriousness for each count, along with the physical trauma and humiliation of the experience of each sexual assault.
While the law does not dictate a hierarchy between types of sexual penetration, I assess the Count 1 digital touching and penetration as less serious than the Count 4 penile penetration. This is because the Victim did not give a duration of the Count 1 sexual intercourse and, on the evidence, it was not beyond reasonable doubt of more than a short duration. The Count 4 penile-vaginal penetration was of an estimated 5-minute duration during which the Offender did not wear a condom, after which he ejaculated onto her back.
The trauma of the bodily invasion of the Count 4 offending was more serious than that of the Count 1 offending. The penile penetration of the Victim’s vagina exposed her to the risk of transmission of disease and potential for a resulting pregnancy, both of which are factors I recognise as causing greater affront, both physically and mentally, to the Victim: MH v R [2011] NSWCCA 230, per RS Hulme J at [37], though the evidence at trial did not specifically address the Victim’s concern of disease or pregnancy. The Count 4 penile-vaginal sexual intercourse must have caused greater affront and invasion both physically and mentally, and a higher consequence of degradation and humiliation for the Victim, due to the intrusion of her body and her privacy, which must have been extended by the Offender ejaculating on her back. The experience of the Offender ejaculating on her lower back, and then wiping his ejaculate from her back, can only have caused the Victim further humiliation and degradation. But, had the Offender not wiped his ejaculate away, the humiliation and degradation experienced by the Victim would likely have been worsened because she would have had to wipe the ejaculate off herself.
During all of that offending, the overriding context spoken of above must be remembered, i.e., the age difference, the Offender being Mother’s partner and the Victim being so scared as to continue to feign sleep during the offending.
I have observed the breach by the Offender of his position of trust, and the fact that the offending occurred in the Victim’s bedroom within her home, as aggravating factors.
I have determined that the Offender’s continuing claim of innocence does not elevate the assessment of the objective seriousness of his offending.
That the offending occurred while the Offender was subject to a Community Correction Order (for a traffic offence) which commenced on 23 December 2021, and expired 5 days after the offending, is not a matter elevating the assessment of objective seriousness, but, rather, a subjective matter to be considered when assessing the Offender’s subjective case. Its aggravating effect is to be weighed when determining adequate punishment, deterrence and protection of the community: Field v R [2020] NSWCCA 105 per Hoeben CJ at [84]-[85].
It is the common experience of courts that sexual abuse inflicts a lasting trauma on children. The Victim’s fear, such that she feigned sleep, is consistent with an experience of trauma. While there was no psychological assessment of the mental harm done to the Victim tendered as evidence, and the Victim did not give a Victim Impact Statement, I nevertheless find that she will have been subjected to trauma that will have a degree of ongoing effect on her life.
There is an inherent objective seriousness in the offence of sexual intercourse with a child, as recognised in the statutory guideposts for penalty. I note that there are no factors, such as a pre-existing mental health condition, to mitigate the Offender’s moral culpability and the objective seriousness, but I also note that there are no factors of cruelty, force, violence, grooming or inducing intoxication, which might otherwise increase the objective seriousness of the offending.
The parties each submit that the Count 1 and the Count 4 offending should be assessed as in the middle range of objective seriousness for offending of those types.
Ultimately, I assess the Count 1 offending as falling in the lower part of what is referred to as mid-range, and I assess the Count 4 offending as being more serious and falling in the mid-range of objective seriousness for this type of offending, though not at the upper echelon of mid-range.
SUBJECTIVE CONSIDERATIONS
I have rejected the Crown submissions that I am prevented from determining that the Offender has good prospects of rehabilitation despite his continuing claim of innocence and those other matters which Crown refers to as his “attitudes”.
Circumstances relevant to my assessment of his prospects for rehabilitation include that his antecedent criminal record does not include what would generally be considered as serious offending, and it contains no sexual or violent offences. The Offender is 48 years of age, and at trial the agreed direction to the jury was that he was a person of limited good character in that regard. However, good character carries less weight in mitigation within matters of child sexual abuse.
On the whole of the evidence, I determine that the offending was out of step with the Offender’s prior character. I rely in part, when making this determination, on the Victim’s evidence that the Offender sat on her bed and spoke with her for hours without sexual offending on a prior occasion. Her recorded police interview shows that after the offending, she was troubled in retrospect by that and other instances of the Offender showing affection, but she explained her confusion as based in her lack of familiarity with fatherly-type conduct. A submission of grooming is not put by Crown. I did not gain the impression from the Victim’s evidence that the subject offending was other than a first occasion or a one-off.
The Offender’s upbringing and prior life, including immersion in a strongly religious family, is consistent with him being a person of prior clear antecedent criminal history for this type of offending. His sister, Ekilet Fatafehi Moala, provided a reference to the Court, and was interviewed by the author of the SAR. While aware of the seriousness of the offending, knowing the Offender as well as she does, she was forthright enough to inform the author of the SAR that she “…supports [the Offender’s] interpretation of events, describing the offence as uncharacteristic.” Of course, Ms Moala’s belief in the Offender’s interpretation of the events and reluctance to accept the fact that the offending occurred, does not factor in any way in my assessment of the seriousness of the offending, adequate punishment, deterrence or denunciation of the offending conduct. It does not lessen the need to recognise the harm done to the Victim.
While warranting some caution on account of Ms Moala being reluctant to accept that the offending occurred, I view her reference letter as valuable because she is generally a person well placed to monitor, understand and supervise the Offender when he returns to the community. The siblings and their two brothers were raised together in the strongly religious, culturally Tongan household of their parents and grandparents. The family participated in the building of the Tongan Wesleyan Church foundation and is close-knit. Christmas is celebrated with numerous nieces, nephews and grand-nieces and nephews. Most significantly, Ms Moala has maintained such close connection with the Offender that she has had the care of J since he was 6 months of age. I recognise that Ms Moala was not previously aware of the Offender’s antecedent criminal history, but I am satisfied that, having now witnessed his conviction by a jury, and having been interviewed by the author of the SAR, she will be aware of her responsibility to assist the Offender in maintaining law abiding conduct in the future.
I also take into account that the Offender did hand himself in by attending Mount Druitt Police Station and cooperated with Police in the obtaining of a buccal swab.
The Defence does not claim that the Offender’s prior mental health informed the offending such that it would warrant any reduction in the assessment of his moral culpability, separate from but associated with the assessment of objective seriousness. However, he has been assessed by Dr Mark Millic, Clinical and Forensic Psychologist (report dated 6 November 2024), to have suffered symptoms of post-traumatic stress disorder since having been assaulted when at school at the age of 12, which was reactivated to “definitive… post-traumatic stress disorder by the assault he suffered in 2023 whilst incarcerated for the subject offending.” On 8 July 2023, he was assaulted by a group of prisoners in his cell. Justice Health records record him being hospitalised for 2 days for observation following a head injury, and treatment of superficial injuries, including suturing of a laceration inside his mouth, following the assault.
This is the Offender’s first experience with prison and, in combination with those medically established diagnoses, I accept that while incarcerated he suffers and will continue to suffer heightened anxiety and sense of insecurity, making his imprisonment more onerous than that experienced by another prisoner. I accept this hardship is a special circumstance warranting some mitigation of the sentence.
For completeness, I reject the Defence submission that the inconvenience of obtaining medical treatment for a rash while in prison is a special circumstance of hardship that should mitigate the sentence. The evidence establishes that Justice Health maintained long-term treatment of the rash.
Crown submits (MFI 1 at [43]) that “the Court would exercise significant caution before concluding that this diagnosis [PTSD] has been properly made.” There is no expert opinion evidence to contest the opinion of Dr Millic. I accept Dr Millic’s expert opinion on diagnosis and symptoms while the Offender remains in prison.
The Offender did not experience deprived circumstances during his youth and home life. He was the youngest of four children in his immediate family. His older brother died, and his mother passed away from dementia, in the few years before the offending. His father remains a pastor in the Free Wesleyan Church of Tonga in Australia, and his sister works as a manager in the church.
He attended Tempe Public School and Hornsby Boys High School until completion of year 10. During the following 4 years he lived with his father’s family in Tonga and completed college there, including subjects of Tongan language and culture. He was an average student. In Australia, he maintained regular employment in his career as a forklift operator.
He commenced smoking ice (methamphetamines) in the year 2000 due to his difficulty coping with the shock of learning that his daughter had been sexually abused by a family member when she was 3 years old, approximately 9 years before the subject offending.
At the time of his offending in 2022, the Offender had lost control of his methamphetamine use. He was also binge-drinking on occasion. He was not working and was associating with other drug users. In consequence of his addiction, he had not worked for several years. Over the 5 years preceding the offending, his control over his drug use had worsened due to further self-medication of his grief over the death of his brother and later, his mother. The evidence at trial established, and Dr Millic’s report confirms, that the Offender and Mother were both using methamphetamines in their dysfunctional household.
In my view, it is significant when assessing the Offender’s prospects for rehabilitation and prospects of recidivism, that his loss of control of his illicit substance use was part of his conduct for only the few years leading up to the offending, the Offender having otherwise been a productive and successful working adult in the community until he was in his 40s. That history, combined with appreciation of more than two years’ incarceration as a “turning point” and “crossroads” moment, invites optimism as to his prospects in relation to both recidivism and rehabilitation.
He has commenced steps in rehabilitation. In particular, while incarcerated, he has achieved long-term abstinence from illicit substances, is willing to undertake courses and education in order to address his past drug addiction, and is willing to engage a mental health care plan to address the extreme distress caused by the deaths of multiple close family members and the sexual assault of his daughter, for which his drug use was a form of self-medication. The Offender also told Dr Millic that he intends to avoid his old drug-using acquaintances and plans to live in a different part of Sydney to avoid them on release.
The Offender has good reason to remain drug free, seek employment and avoid reoffending. This is because he is father to both 2-year-old J, who resides with Ms Moala, and his 14-year-old daughter, with whom he has remained in close contact. He gets along well with the mother of his daughter. He remains in regular telephone contact with Ms Moala.
The author of the SAR included among ‘Factors Related to Offending’, and Dr Millic recorded, that the Offender views “incarceration as a significant turning point, having not previously served a custodial term, and asserts his determination to avoid future imprisonment” (SAR, page 2, Factors Related to Offending). He told Dr Millic that incarceration has “cured” him of his methamphetamine addiction. He presses his commitment to remain free of consumption of illicit substances when released.
Previously, the Offender had a long and successful career as a forklift operator and achieved appointment as the night-shift manager with the business McPhee Transport. A letter from MPowered Workforce, which is a labour hire company committed to providing opportunities for offenders to reintegrate into society, originally obtained in relation to consideration of his bail, is tendered as evidence of availability for work placement in the community upon his release. I accept that letter as evidence that there are employers who are willing to employ individuals like the Offender after release from prison. The evidence of his prior work experience and qualifications makes it likely that he will achieve that employment.
The Offender’s conduct while in custody has been satisfactory. He has completed the Remand Domestic and Family Violence Program. He has undertaken drug testing which confirmed his abstinence. He is presently employed and has worked so far as it has been available to him due to his remand status and placement changes. At various correctional centres, he has engaged in employment in the furniture unit and as a general hand in the accommodation unit cleaning.
While maintaining that the Victim lied about the offences, he told Dr Millic that he feels sorry for her and wishes her and Mother well.
The Defendant also told both the author of the SAR and Dr Millic that he abhors sexual offending and violence.
My above consideration of principles to be applied to sentencing of an Offender who maintains their innocence is that it invites caution in exercising an assessment of his prospects of rehabilitation and of reoffending. This is particularly because the Offender refuses to engage with specific services available to sexual offenders because he does not acknowledge that he is a sexual offender. In my view, that caution is to be weighed against the positive factors of his abstinence from illicit substances displayed over more than two years of incarceration, his want to live a stable lifestyle as an employed worker, particularly as he has realistically good prospects of employment, his desire to be a present father to his two children, and the prosocial influence of his sister Ms Moala as he engages that future positive course.
Having carefully considered the Crown submissions; it is my view that the Offender has good prospects of rehabilitation.
The assessments of “Medium” (SAR) and “Average” risk of reoffending are primarily based on the static assessment known as Static-99R. Allocation of “Average” was based on the calculated score, actuarially assessed, from non-changeable factors based on statistics identifying with groups of individuals. The author of the assessment, Mr Jiajing Pan, psychologist, explained that the test “has moderate predictive accuracy” in providing estimates of future risk based on risk factors present in the Offender. He scored “Average” because of his age, that his antecedent record included 4 or more sentencing dates and that he offended against a victim unrelated to him. The test does not purport to be any more accurate than that.
This invites consideration of the result “Average” amongst the whole of the evidence. For a start, while there had been several sentencing dates, there was no prior offending of a kind which would indicate sexual reoffending. At most, the Offender’s antecedent record indicated social irresponsibility, and this would accord with his drug addiction. A dynamic matter is that he has now, for a substantial period, been abstinent from illicit substances, and intends to remain so. The case note report includes the statement:
“the limitation of this consultation is that dynamic (changeable) risk factors that are potentially relevant to evaluating risk of sexual reoffending were not assessed… Mr Fatafehi appears to have a moderate density of criminogenic needs relative to other male sexual offenders.”
The report also notes that while the Offender’s sister has had a significant influence on his life up till the point of the making of the report, she might not be expected to have a significant influence on his future behaviour. I take this into consideration, but, in my assessment, on the whole of the evidence available to me, including the report of Dr Millic, and the reportedly profound effect that incarceration has had upon the Offender, I find it more probable than not that he has good prospects of rehabilitation.
The alternative view to that expressed by Mr Jiajing Pan is that connection to a community with a strong life direction through his sister and broader family provides a good opportunity for the Offender to be closely monitored and assisted in his future life course, particularly in respect of being a suitable father to his two children.
Mr Jiajing Pan also considered the Offender’s past impulsivity involving his substance use and inadequate problem-solving displayed in his driving offences, as well as less-than-full cooperation with Community Corrections supervision in the past, with concern. I take into account that the offending occurred 5 days before the expiry of a Community Corrections Order, imposed for driving without a licence, to which he was subject. In my view, that history is partly ameliorated by the previously mentioned turning-point experience of his incarceration and his abstinence from illicit substances.
COMPARABLE CASES
Reference to comparable cases in sentencing can be of assistance but it is important to bear in mind the limitations on the use that can be made of other cases. Obviously, individual justice is required in each sentence and the facts and circumstances of no two cases are identical.
As Adamson J observed in Vandeventer v R [2013] NSWCCA 33 at [45], which was applied in Du Plessis v R [2024] NSWCCA 164 at [79]:
“One cannot judge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely…”
Differences in the facts and circumstances affects the utility of the comparative exercise. Further, the range of sentences imposed in the past does not fix boundaries within which a present judge must, or even ought to, sentence. Past sentences provide a yardstick against which to evaluate the proposed sentence: Hili v the Queen (2010) 242 CLR 520.
R v DN [2023] NSWCA 39 Gleeson JA (Fagan J and Dhanji JJ agreeing) reviewed the sentences in several preceding cases of offending against section 61J(1) in the course of finding that the aggregate sentence imposed at first instance was manifestly inadequate. In that exercise, his Honour included identification of indicative sentences. The principal offence before his Honour was the Count 4 penile-vaginal sexual intercourse by a 39-year-old male against the 14-year-old victim, his stepdaughter, in her own bedroom.
On resentencing the offender (penile-vaginal penetration; Form 1 digital-vaginal penetration and kissing), Gleeson JA corrected the indicative sentence made by the court below for Count 4. The indicative sentence took 2 Form 1 offences into account, being digital-vaginal penetration and kissing the victim on the neck. The indicative sentence of 4 years and 11 months imprisonment was found to be so low as to suggest a basis for error (at [42]), excluding any discount for the late plea. In my opinion, the Count 4 offending by DN was objectively more serious than in the present case because:
(1)the offending did not occur in isolation, but rather was in culmination of sexualised behaviour which preceded the offending, toward the victim;
(2)the offending was not opportunistic because it occurred following that preceding sexualised behaviour - in my view a significant aggravating factor;
(3)the offending involved force, violence and rough and aggressive behaviour - in my view, a particularly serious significant differentiating factor;
(4)the offender threatened the victim with adverse consequences if she disclosed his conduct - in my view another seriously aggravating factor;
(5)the offending was predatory while the offender was in a position of actual authority over the victim; and
(6)the Victim’s younger age increased the statutorily recognised aggravation.
On re-sentence for the Count 4 offending, Gleeson JA determined an indicative sentence of 9 years and 11 months in prison with an indicative non-parole period of 6 years 8 months, excluding any discount for the late plea (at [66]).
In DH v R [2019] NSWCCA 128, Hamill J (Leeming JA and N Adams J agreeing) resentenced an offender, who was the victim’s mother’s partner, including with provision of indicative sentences, for penile-vaginal sexual intercourse when the victim was 11 years and 10 months of age (Count 8) and 16 years of age (Count 9): see [8] and [31].
Each offence occurred when the offender removed the victim’s pyjamas while she was in bed. There was a history from the victim being 8 years of age when the sexualised conduct and offending commenced and of the offender threatening the victim that she would get into trouble if she complained, as well as offering her bribes not to report the offending.
The Count 8 offence occurred when the victim was asleep in bed at her home. The offender woke the victim up by removing her pyjamas and proceeded to have penile-vaginal sexual intercourse with her. The offender ceased offending when the victim told him to get off her.
The Count 9 offence occurred after the offender drank alcohol and smoked marijuana with the victim and had given her his assurance that he would not do anything if she stayed over. When he approached her in the bedroom (in the offender’s home), the offender told the victim that he would send a message to police if she did not do what he wanted. Her vulnerability included her age of 16 years and that she was intoxicated. She was upset and crying when the offender became aggressive. The penile-vaginal sexual intercourse lasted 5 minutes before the offender ejaculated on the bed.
In each instance, the sexual intercourse was unprotected, but the offender did not ejaculate in or on the victim.
The offender’s subjective case included that he entered a late plea of guilty to the offences with acknowledgement of his guilt and an expression of unreserved remorse. He was 52 years of age when sentenced. The offender had very little antecedent criminal history and no previous offences of sexual misconduct.
On re-resentence, the indicative sentence for Count 8, before discount for plea, including other offences taken into account on the Form 1, was imprisonment for 6 years. The indicative sentence for the Count 9 offence, before taking into account discount for the plea, was imprisonment for 5 years.
The approach taken was to round down the indicative sentences and non-parole periods so as to not “impose sentences expressed in days based around the application of rigid mathematical formula.” In so far as necessary, the approach was to “find special circumstances for that purpose only”: [32].
In my opinion, the objective gravity of the offending of DH was more serious than in the present case because of the sexualised conduct and offending over several years while exploiting the vulnerability of the victim. There was heightened vulnerability of the victim in the Count 9 offending, she at the time being basically homeless unless she accepted the bed in the offender’s home, and he offending while threatening her with police consequences if she did not comply with him, having induced or at least assisting her intoxication and having lied to her that he would leave her alone if she stayed over. DH’s offending displayed planning to take advantage of the vulnerability of the victim to a far greater extent than in the present case where the offending was more opportunistic and occurred during a single episode.
In MH v R [2011] NSWCCA 230, RS Hulme J (Hoeben J, as His Honour then was, and Campbell JA agreeing) on re-sentence provided an indicative sentence for an offence against section 61J(1). It was Count 9 in that case. The offender entered the victim’s bedroom, woke her up, put his penis in her vagina and had intercourse with her. He then ejaculated on her and told her to go and have a shower. The offender was the victim’s stepfather, he having been married to the mother for a substantial period. The victim had recently turned 15 years of age. The offender was aged 43 years. The offending was assessed as falling in the mid-range of objective seriousness. His prospects of rehabilitation were assessed as reasonable. The offender received a 25% discount on result of his plea of guilty. He showed remorse. The trial judge imposed a sentence for Count 9 of a non-parole period of 3 years and a balance of term of 5 years. The sentence reflected a finding of special circumstances based on the accumulation of sentences for the multiple offences committed by the offender. On appeal, the indicative sentence in relation to Count 9 was imprisonment for a non-parole period of 5 years together with a further term of 3 years.
MH had committed multiple offences against two victims. He had sexual intercourse with one of the victims when she was under 10 years of age, and sexual intercourse with the other victim on multiple occasions between the ages of 10 and 16. On appeal, the totality of his resentence was imprisonment for 15 years with a non-parole period of 12 years.
The multitude of offences and separate sentences in that case make it difficult for comparable consideration.
In Du Plessis v R [2024] NSWCCA 164, the offender was convicted of two counts of aggravated sexual intercourse contrary to section 61J(1). The circumstance of aggravation in each instance being that the victim was 15 years and 9 months of age. The offender was 47 years of age. The age difference was more than in the present case. The victim was in a situation of vulnerability to the extent that when her friend did not turn up to a club as arranged and her mobile phone battery was flat, a group of adults took her to their premises in order that she might recharge her mobile phone. At those premises on that night, taking the opportunity to recharge her mobile phone, the victim found herself alone with the offender who encouraged her to accompany him to the beach. There he started kissing her and persisted against her protests and struggle. Du Plessis forcefully inserted a finger into her vagina (Count 2) and, while holding the back of her neck and her hips really hard, he inserted his penis into her vagina while pushing her up against him (Count 3). The victim subsequently suffered a panic attack, and her Victim Impact Statement described her subsequent ongoing mental harm.
The offender had no antecedent convictions and was, on static testing, assessed at an “Average” risk of recidivism relative to other male sexual offenders. The penile sexual intercourse (Count 3) was without protection. The offender was not remorseful and continued his denial of the offences. The trial judge Huggett DCJ (as her Honour the Chief Judge then was) was satisfied that his offending was an aberration, given his prior good character, and could be explained in part by his intoxication. Her Honour considered there to be no need for specific deterrence. Her Honour assessed the moral culpability as high. At first instance, her Honour determined indicative sentences for Count 2 (digital penetration) of 7 years imprisonment with a non-parole period of 5 years, and, for the Count 3 (penile-vaginal intercourse), imprisonment of 9 years and 6 months with a non-parole period of 7 years. The aggregate sentence was imprisonment for 11 years and 6 months with a non-parole period of 8 years, which was a ratio of 69%.
After adoption of her Honour Huggett DCJ’s findings, including as to special circumstances, the result of the appeal was that the offender was sentenced to an aggregate term of 10 years, with a non-parole period of 7 years, which was a ratio of 70%. The indicative sentences were imprisonment for 6 years with a non-parole period of 4 years and 3 months for the Count 2 offending, and 8 years imprisonment with a non-parole period of 6 years for the Count 3 offending. The force and that the offender continued while the victim struggled and pleaded with him to stop were significant aggravating factors. In the present case, there is no evidence of force or aggression other than is inherent to sexual intercourse without consent.
SYNTHESIS
The Community’s abhorrence of sexual exploitation of children is reflected in the criminal law by the statutory guideposts and by the emphasis given to the importance of general deterrence: R v Ryn [2016] NSWCCA 1 per R A Hulme J (Leeming JA and Johnson J agreeing) at [187].
It is common ground that the only appropriate sentence, having considered all alternative forms of sentence available to the law, is full-time imprisonment and the section 5 threshold in the Crimes (Sentencing and Procedure) Act 1999 (NSW) is crossed in relation to each offence. I agree with that position submitted by the parties.
Counsel for the Offender pressed that I be mindful of applying considerable concurrence when assessing the appropriate aggregate sentence for the total criminality involved. Crown, in oral submissions, put:
“… there should be a degree of accumulation between counts 1 and 4, whether that be notional or actual, because although it occurs within a single episode, they are distinct acts of sexual intercourse without consent”: T 27.10.
Howie J in Cahyadi v R [2007] NSWCCA 1 said at [27] (a statement approved in R v Ryn [2016] NSWCCA 1 at [231]) that:
“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two’s offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that, where the offences are discreet and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”
The Count 1 (digital sexual intercourse) and Count 4 (penile-vaginal sexual intercourse) offences were discrete acts of criminality committed in a single episode. The aggregate sentence must represent the totality of the criminality. It is important that the aggregate sentence not exceed that which is warranted to reflect the total criminality of the two offences. In relation to each offence, the sentence must be appropriate and proportionate to the gravity of the crime. Careful attention to both the maximum and the standard non-parole periods is required. The task is not to contrast the actual offence with some abstract one, nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period.
At [104] in Tepania v R [2018] NSWCCA 247, Johnson J said:
“… The standard non-parole period now represents the non-parole period for an offence “that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness”.”
And at [105]:
“Section 54B(2), as amended in 2013, makes clear that the standard non-parole period is “a matter to be taken into account by a court in determining the appropriate sentence for an offender …”. In this way, the 2013 amendments give effect to the High Court’s characterisation in Muldrock v R at 132 [27] of the standard non-parole period as a legislative guidepost to be taken into account on sentence.”
The sentence must reflect mitigation on account of the special circumstances of the Offender’s hardship in prison due to his PTSD-induced heightened anxiety, triggered by the assault while in prison.
I have determined that the Offender has good prospects of rehabilitation. Special circumstances warrant a variation of the statutory ratio by downward adjustment of the non-parole period. A longer period on parole will more likely allow the Offender to address his underlying issues of mental health and abuse of illicit substances, and allow him the opportunity of reintegration into the community by way of compliance with an appropriate Mental Health Plan, to obtain treatment and counselling to address his substance abuse, to activate his plan of relocating himself geographically so as to avoid his former drug-using associates, to settle into a stable life with employment while having the assistance of those supports, and the opportunity of rehabilitation: Crane v R [2024] NSWCCA 87 at [128]-[130]. During parole, he may be referred to a specialist drug and alcohol intervention service.
In my assessment, the Offender’s planned compliance with rehabilitation while supported by his sister and his close family as he tries to restore his prosocial life direction is in the interest of the community because the above dynamic influences have prospects of reducing his presently assessed risk of reoffending.
In my assessment, the need for personal deterrence is reduced because the influence of illicit substance use, present at the time of the offending, has been removed, and I have determined there to be good prospects of that state continuing.
It is appropriate to make orders including for supervision by Corrective Services as recommended in the SAR. I note that studies from the Bureau of Crime Statistics and Research indicate that those who receive parole supervision generally take longer to commit further offences than those who do not: W Wan, S Poynton, G Goorn and D Weatherburn, “Parole Supervision and Reoffending” (2016) 149 Australia & New Zealand Journal of Criminology 4, 497; R v Davidson [2023] NSWDC 101 at [41].
After synthesising all these factors, including the mitigating factors, with appropriate weight, I must impose a sentence which is proportionate to the gravity of the criminality of the offending. Proportionality is important also to retribution. As I have already acknowledged, offences of this type require sentences representing the seriousness with which the community considers this type of offending, and that there must be deterrence not only of the offender but of other persons from committing similar offences. In my view, protection of the community will be afforded by a sentence representing the seriousness with which the law views this type of aggravated offending, while permitting the appropriate opportunity for rehabilitation, and so to take the opportunity to reduce the risk of future recidivism. The harm done to the Victim is represented in the seriousness with which offending of this type is viewed and in the significant penalty which will be imposed.
I proceed by way of aggregate sentence and indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence (section 53A(1) of the Crimes (Sentencing and Procedure) Act 1999 (NSW)):
(1)Count 1 - imprisonment for 4 years 3 months with a non-parole period of 2 years and 9 months.
(2)Count 4 - imprisonment for 6 years with a non-parole period of 3 years and 11 months.
I have rounded down these indicative terms in accordance with the approach adopted in DH v R [2019] NSWCCA 128 at [32].
I allow for substantial concurrence because the two discrete offences occurred during a single episode of offending. As I have described them, the Count 1 digital sexual intercourse was a separate criminal incident to the objectively more serious Count 4 penile-vaginal sexual intercourse. In my assessment, an aggregate sentence of full-time imprisonment for a term of 7 years with a non-parole period of 4 years and 7 months is appropriate. The Offender has remained in custody from 9 January 2023, and I backdate the commencement of his sentence to that date.
ORDERS
(1)The Offender is sentenced to an aggregate sentence of imprisonment for 7 years with a non-parole period of 4 years and 7 months, commencing on 9 January 2023. The Offender will be eligible for consideration for parole on 8 August 2027. The balance term of 2 years and 5 months will expire on 8 January 2030.
(2)I recommend the following:
(a)the Offender be referred to programs to assist with his management of his grief and his post-traumatic stress disorder;
(b)the Offender be referred to programs for drug addiction and abuse treatment; and
(c)on release to parole, the Offender is to comply with all reasonable directions of Community Corrections, including but not limited to the following:
(i)develop a Mental Health Care Plan with a general practitioner;
(ii)referral to a specialist drug and alcohol service for targeting intervention to address his substance abuse and support his overall wellbeing;
(iii)engage with appropriate mental health services as directed, including with a psychiatrist and/or a psychologist;
(iv)complete the EQUIPS Addiction Program, should it be available to him;
(v)engage with suitable employment; and
(vi)remain abstinent of illicit substances.
(3)As the offences occurred while the Victim and Offender were in a domestic relationship and were domestic violence offences as per s 11(1)(a) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), I direct, pursuant to sections 9(1) and 9(2) of that Act, that the offences are to be recorded on the Offender’s criminal record as domestic violence offences.
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Amendments
11 April 2025 - Changed s 61J to Section 61J
05 May 2025 - Removed unnecessary quotation mark
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