R v GN (No 2)

[2020] NSWDC 524

District Court

New South Wales

Medium Neutral Citation:

R v GN (No 2) [2020] NSWDC 524

Hearing dates:

17 August 2020

Date of orders:

14 September 2020

Decision date:

14 September 2020

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced to an aggregate sentence of seventeen years with a non-parole period of 11 years and 4 months

Catchwords:

CRIME – sentencing – sexual assault child under 10 – aggravated indecent assault - sentenced after trial -

Legislation Cited:

Crimes Act, 1900

Crimes (Sentencing Procedure) Act 1999

Crimes (Administration of Sentences) Act 1999

Cases Cited:

Bravo v R [2015] NSWCCA 302

Brown v R [2020] VSC 60

Burchell (1987) 34 A Crim R 148

Chamseddine v R [2017] NSWCCA 176

Hermann v R (1988) 37 A Crim R 440

Hopley v R [2008] NSWCCA 105

Jolly v R [2013] NSWCCA 76

LN v R [2020] NSWCCA 131

Maxwell v R [2020] NSWCCA 94

MC v R [2017] NSWCCA 316

Mills v R [2017] NSWCCA 87

MLP v R (2006) 164 A Crim R 93

R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434

R v Despotovski [2020] NSWDC 110

R v GN [2020] NSWDC 59

R v Muldoon unrep. NSWCCA 13.12.1990

R v PGM [2006] NSWCCA 310

R v Tuala [2015] NSWCCA 8

R v TWP [2006] NSWCCA 141

R v Van Ryn [2016] NSWCCA 1

RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137

Ryan v The Queen (2001) 206 CLR 267

Texts Cited:

CSNSW memo response to COVID-19, 25 March 2020

Category:

Sentence

Parties:

Regina
GN (the offender)

Representation:

Counsel:
Mr C Parkin for the offender

Solicitors:
Ms V Morgan, Solicitor Advocate for the Crown

File Number(s):

2015/229073

Publication restriction:

There is to be no publication of the names of the complainants, the offender, nor anything that would identify them.

Judgment

1. Following a trial by judge alone on 24 March 2020 the offender was found guilty of two counts of Sexual Intercourse with a Child Under 10 years contrary to s 66A(1) of the Crimes Act, 1900 (which were counts 11 and 13 on the indictment) and seventeen counts of Aggravated Indecent Assault contrary to s 61M(2) of the Crimes Act (which were counts 1 to 10, 12 and 14 to 21 inclusive on the indictment). The judgment in respect of the trial is published on Caselaw as R v GN [2020] NSWDC 59.

2. The offender pleaded not guilty to all counts and was convicted after trial. Accordingly there can be no discount or consideration for a plea of guilty. That is not to say that the penalty is increased because the offender put the Crown to proof but rather there is no discount or consideration for a plea of guilty.

3. Counts 1 to 9 inclusive, which are all counts of Aggravated Indecent Assault, relate to the victim TWN and counts 10 to 21 inclusive relate to the victim KN. The offender is the “step grandfather” to TWN and the paternal grandfather to the victim KN.

4. The maximum penalty for the offences to which counts 1 to 9 inclusive relate was at the time of the offending 10 years imprisonment with a standard non-parole period of 5 years. The maximum penalty for the offending to which counts 10, 12 and 14 to 21 relate is 10 years imprisonment with a standard non-parole period of 8 years. I acknowledge that I am engaged in a one-step instinctive process in which two of the principle guideposts are the maximum penalty and the standard non-parole period. At the time of the offending the maximum penalty for counts 11 and 13 was 25 years with a standard non parole period of 15 years.

5. The offender was on bail up until 24 March 2020; after the verdicts bail was revoked and the offender went into custody. It is agreed between the parties that the sentence should commence from that date.

Facts and objective seriousness

6. Given the number of counts I will deal with the issue of the objective seriousness when dealing with the facts. Accordingly, before dealing with the facts I will go to some matters of general principle relating to the finding of objective seriousness in child sexual assault matters.

7. Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:

“It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness”.

8. In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:

“…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).”

9. Generally, the younger the victim the more serious the offence will be regarded – see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14]. This is a matter of some significance in particular to the matters relating to KN as KN was 4 or 5 years old at the time of some of the offending.

10. In Bravo v R [2015] NSWCCA 302 Hulme J (Beazley P, Johnson J agreeing) said at [42]:

“As was observed in R v Gavel :

‘[97] … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”

11. His Honour went on to say at [45]:

“… Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, “the offence is less serious because it could have been more serious”. As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452:

‘[3]    It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.’”

12. In Mills v R [2017] NSWCCA 87, R A Hulme J (Leeming JA and Beech-Jones J agreeing), in addition to referring again to Grove J’s statement in Saddler, said at [57]:

“Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], “In plain language, it does not make what has been done by an offender less serious because it could have been worse.”

13. Fullerton J in her judgment in R v PGM at [36] cites with apparent approval Kirby J in MLP v R (2006) 164 A Crim R 93 at [22], in that:

“…The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable”.

14. Her Honour was of course considering the offence of Sexual Intercourse with a Child Under 10 years of age. Some of the offending in the matter presently under consideration relates to offending against children under 10 years of age.

15. In all matters involving both victims there is a significant breach of trust. I am satisfied beyond reasonable doubt that the factor of statutory aggravation provided for by s 21A(2)(k) is established in respect of all of the offending for which the offender appears for sentence. The aspect of breach of trust will be factored into the assessment of the seriousness of each matter without being expressly stated on each occasion.

16. Further, in respect of all counts there is a very considerable age difference between the victims and offender and this is especially so in respect of the victim KN. The age difference is measured in decades.

17. The offences were not isolated in that there were a number of episodes of offending relating to both victims.

18. The offending in respect of counts 11-14 took place in the victim’s home and accordingly the factor of aggravation provided for in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act is made out.

Matters involving TWN

19. Going to counts 1 to 9 inclusive counts 1 to 6 inclusive arise out of the one ongoing episode. Count 7 is another episode of offending and counts 8 and 9 are the third episode of offending. The victim would stay over at the home of the offender and his wife from time to time from the age of 7 or 8 and she would regularly visit the offender’s home.

20. Counts 1 to 6 inclusive occurred on an occasion when she was visiting the home but not staying over. This conduct occurred when she was sitting on his lap or his knee during the visit. She was seated not facing the offender. The victim was 7 or 8 years of age.

21. Count 1 relates to the offender rubbing in a circular motion with both hands the breast area of the victim on the outside of clothing. The offender then immediately with the palm of his hand and his fingers rubbed the vaginal area of the victim on the outside of the clothing which is the conduct to which count 2 relates. The victim remained sitting on the offender’s lap.

22. Continuing with that course of conduct, the offender placed one hand up the dress of the victim and touched the breast area, again with both hands in the same rubbing motion, which is the conduct to which count 3 relates. Count 4 relates to the offender using one hand rubbing the victim’s vaginal area over the top of her underpants. Count 5 relates to the offender then putting the hand he was using inside the victim’s underpants and rubbing her on the vagina.

23. Count 6 relates to the offender taking one of the victim’s hand and placing that hand on his penis on the outside of the clothing he was wearing. She could feel it was the offender’s penis but did not know whether the penis was erect or flaccid.

24. I note that the ongoing episode of offending to which counts 1 to 6 inclusive relate involves a gradual increase in the seriousness of the offending when there was no immediate complaint from the victim as the conduct continued, noting of course that TWN did call out to her grandmother – the offender’s wife – at the end of the episode.

25. As the Crown puts in the written submissions (MFI 2 on sentence) the offending was largely opportunistic and of relatively short duration. The Crown maintains that the offending in relation to TWN falls either at the middle of the range or slightly below the middle of the range. Mr Parkin in oral submissions put on behalf of the offender that the seriousness was less than that submitted by the Crown.

26. Count 1 was a rub on the breast area on the outside of clothing. Clearly it was of short duration. Noting this and the conduct, taking into account the age of the victim (7 or 8 years of age), the matter is well below mid-range. Count 2 relates to rubbing the vaginal area on the outside of clothing. This was also of short duration. This matter is moderately below mid-range. I make the same assessment in respect of count 3, noting that the touching of the breast area was skin on skin under clothing. Count 4 relates to rubbing the vagina on the outside of her underpants and is the lower end of the mid-range. Count 5 is skin on skin contact with the victim’s vagina and is in the mid-range. Count 6 is taking the victim’s hand on placing it on his penis on the outside of clothing and is marginally below mid-range.

27. The conduct in respect of count 7 occurred in the summer and at the offender’s home. The victim and the offender were play wrestling on the floor. During the play the offender pulled down the victim’s shorts and touched the victim’s vaginal area on the outside of her underpants. The victim could not say how long the conduct went on for or how the conduct came to an end. Again the conduct was opportunistic and of short duration. The matter is at the low end of the mid-range.

28. Counts 8 and 9 occurred as part of the one episode when the victim was staying over one night at the offender’s home. The victim slept in the bed with the offender and his wife. The victim gave evidence that she felt safer there as she felt worried when she slept elsewhere in the house. She woke to find the offender rubbing the front of his body against hers. The victim woke her grandmother. That was the conduct to which count 8 relates. The victim then gave evidence that as part of that episode of offending the offender took her hand and placed it on his penis and “made me rub it…in a circular motion”. The offender was wearing pyjamas. The offending was again opportunistic and of short duration. Count 8 is well below mid-range and count 9 is marginally below mid-range.

29. The Crown submits (paragraph 38 of MFI 2 on sentence) that the offences were not isolated and there was evidence of uncharged conduct. Mr Parkin for the offender submits (paragraphs 8 & 9 of MFI 1 on sentence), correctly in my view, that given the effect of the decision of the Court of Criminal Appeal in LN v R [2020] NSWCCA 131, that conduct would need to be proved beyond reasonable doubt. I further agree with Mr Parkin’s submission that the uncharged conduct has not been identified with sufficient particularity for it to be established beyond reasonable doubt.

Matters involving KN

30. Counts 10 to 14 arise out of the one ongoing episode of offending. In 2010 the offender and his wife were living at an address which was in close proximity to the school that KN attended. The offender collected KN one afternoon after school at a time not long after she commenced school and took her back to his home.

31. Once at home the offender said to KN something to the effect of, “This will be fun, don’t worry, this isn’t wrong everyone does this”. He pulled his pants down and her pants down and touched her on the breast area under her clothing. The matter is more objectively serious because of the lowering of the offender’s and victim’s pants. The matter is marginally below mid-range.

32. Count 11 is the first of two counts of sexual intercourse with a child under 10 and involves digital penetration. Immediately after the conduct to which count 10 relates the offender moved his hand to the victim’s stomach and then to the vaginal area where he rubbed in a circular motion before inserting fingers into the victim’s vagina. He asked her whether she liked it and whether it felt good. She told him to stop but he did not. The victim was 4 or 5 years of age at the time. It seems from the victim’s recitation of the events that the penetration did not continue for long period of time but was more than momentary. The offender continued with the conduct despite the victim asking him to stop. The Crown submits (paragraph 35 MFI 1 on sentence) that the conduct is slightly below the mid-range. Given the facts and circumstances I agree and find that the matter is slightly below mid-range.

33. The conduct to which count 12 relates is set out in some detail at [90]-[92] of the findings at trial (R v GN [2020] NSWDC 59). The offender positioned the complainant on her knees in the front of the lounge and he placed his penis between her legs and moved back and forth. As I noted in the reasons at trial the victim was careful to say that the offender’s penis was touching her vagina but did not go inside. The offender moved back and forth. The offender said, “yeah, yeah, yeah, yeah” and was breathing heavily and ejaculated with the ejaculate going over the victim and the lounge.

34. The victim was 4 or 5. The offender placed his penis at the vagina of the victim being skin on skin contact. The offender essentially simulated sexual intercourse to the point of ejaculation. Noting the age of the victim and the conduct I have just recounted, especially the ejaculation, the matter is well above the mid-range of seriousness.

35. Count 13 is the other count of sexual intercourse with a child under 10. Immediately after the conduct to which count 12 relates the victim pulled up her pants and the offender told her to go to the garage, which she did. The offender produced a pornographic magazine and then placed his penis into the mouth of the victim. The victim described the offender forcing her head on to his penis. The Crown maintains that this matter is within the mid-range. I understood Mr Parkin to make a general submission to the effect that the seriousness was less than that submitted by the Crown. However, so far as count 13 is concerned, noting the age of the victim and the offender’s conduct of forcing the victim’s head onto his penis, I am of the opinion that the matter is within the mid-range of seriousness.

36. Count 14 occurred immediately thereafter. The offender took hold of the victim’s hand and placed it on his penis obliging her to masturbate his penis. This went on for only a short time as the offender’s wife returned home and sounded the horn of the vehicle, whereupon the offender quickly pulled up his pants. The victim ran upstairs to the bedroom and told her grandmother that she was not feeling well. Noting the age of the victim and the skin on skin contact, the matter is within the mid-range of seriousness.

37. Counts 18 to 21 are the next matters chronologically and I will go to them. The counts relate to the continuation of the conduct but in different rooms of the house. These counts were referred to as the “different rooms” or “room to room” incident at the trial.

38. Count 18 occurred in the lounge room of the offender’s home. The offender pulled down the victim’s pants and placed his penis between her legs placing his penis on the victim’s vagina. Count 19 occurred in the kitchen but the offender lay the victim down holding her hands and ankles and placed his penis at the victim’s vagina, but not in it. From the kitchen they went to what was described as the toy room where there was a chair. The victim was facing the chair and the offender again put his penis on the victim’s vagina. This was count 20. From there they went to a bedroom which the victim occupied when she stayed over at the offender’s home. Again the offender placed his penis at the vagina of the victim – count 21. In answer to question 495 (see [99] of the trial judgment) of the recorded interview the victim described the offender ejaculating in the bedroom – i.e. the conduct to which count 21 relates.

39. Noting the conduct, i.e. placing his penis on the vagina of the victim who was 4 or 5 with the skin on skin contact, the matters are above mid-range with count 21 being more serious because of the issue of the offender ejaculating.

40. There was also evidence of uncharged conduct by the offender towards KN. However, I make the same observations of this conduct as with the uncharged conduct relating to TWN.

41. Counts 15, 16 and 17 became known at the trial as the “Debbie Does Dallas” incident. The offender would regularly visit the victim’s home on a Saturday morning. On one such occasion he drove her back to his home. Once there he told the victim that he wanted to show her a “cool western”. The victim was able to describe the plot of the movie “Debbie Does Dallas” in some detail noting that one of the trial exhibits was an extract setting out the plot.

42. The details are set out at [107]-[110] of the trial judgment. The offender began to touch himself after which he began touching the victim. He touched the victim on the breast on the outside of clothing (count 15). The offender then lifted up the upper clothing of the victim and put his mouth over her breast (count 16). The victim pushed the offender away and went to the toilet. Upon returning to the room where the movie was playing, the offender pulled her pants and underpants down, forcing to her knees, saying, “get to your knees”. The offender then placed his penis at the vagina of the victim and moved back and forth until he ejaculated. The offender cleaned up the ejaculate and the victim became aware of her brother outside on his bicycle.

30. Noting the conduct with the age of the victim, count 15 is well below mid-range, count 16 is slightly below mid-range and count 17 - noting that the offender pulled the victim’s pants down, the offender’s penis touched the victim’s vagina and the ejaculation - is well above mid-range.

31. The recitation of the facts in this somewhat bland and sanitised fashion does not really reflect the seriousness of the offender’s conduct. As I have observed a good number of the offences, especially those relating to KN involved skin on skin contact and ejaculation. The offender presented as a loving grandfather but took a number of opportunities to sexually abuse his granddaughters on a number of occasions. As I have already observed the appalling conduct of the offender involves a gross breach of trust.

Need for general deterrence

45. It is precisely this aspect of this matter that informs the need for a strong element of general deterrence to be factored into the sentence to be imposed in this matter. The strong need for general deterrence when dealing with offences of child sexual assault is undoubted. The need for general deterrence goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at 1789 where his Honour said:

“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:

‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.’"

46. Other cases include Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316. I also note what Walton J said in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 at [50]:

“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]:

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

47. More recently there is the decision of the Court of Criminal Appeal in Maxwell v R [2020] NSWCCA 94. At [75] Johnson J (Adamson & Bellew JJ agreeing) in dealing with victim impact statements and the effects of sexual offending against young children also referred to the decision of Gavel.      

Criminal History

48. The offender was born on 15 October 1955 and accordingly is now 64 years of age. He has recorded against him two counts of Steal Motor Vehicle contrary to s 117 of the Crimes Act for which in 1975 he was released on a recognizance to be of good behaviour for three years, fined and ordered to pay compensation. There are no other matters recorded against him.

49. However, it became apparent at the sentence hearing that the offender has been charged with an offence of Sexual Touching relating to the alleged slapping of a female’s buttocks at a motor vehicle dealership in October 2019. There has been no determination of this matter and accordingly I will ignore it so far as the determination of sentence in the matter is concerned.

50. I note the decisions of Ryan v The Queen (2001) 206 CLR 267, R v TWP [2006] NSWCCA 141 at [17] and Hermann v R (1988) 37 A Crim R 440.

51. McHugh J, who was part of the majority in allowing the appeal in Ryan at [35]-[37] said:

“Given these circumstances, Gleeson CJ was correct when he said that the appellant was not entitled to significant leniency because of his otherwise good character. However, Nield DCJ gave the appellant no leniency whatsoever for his otherwise good character. He was entitled to some leniency for his otherwise good character. That being so, the Court of Criminal Appeal should have allowed the appeal and re-sentenced the appellant. In re-sentencing the appellant, some weight should be given to the appellant's otherwise good character.

In considering a prisoner's good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Second, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances of the case.

In this case, once the offences before Nield DCJ and Rummery DCJ are excluded, the appellant was of otherwise good character. He was entitled to some leniency because of that good character.”

52. Kirby J, also part of the majority in Ryan said at [110]:

“…To ignore totally evidence relevant to the latter because of a general assessment that the appellant was not, globally speaking, a good man or had committed serious crimes, involves a departure from basic sentencing principle. Even in the case of offences against vulnerable children and young persons over an extended period, as here, a proper evaluation of all matters relevant to the sentencing function required that some weight be given to the evidence of character that stood to the appellant's credit. By dismissing that evidence out of hand, and refusing to give it any weight at all, the sentencing judge erred”.

53. The offender must get some credit for his lack of record. However, the preponderance of recent authority is such that the weight to be given to the prior lack of record is limited. Rothman J in delivering the decision of the court in R v TWP [2006] NSWCCA 141 at [16]-[17] said:

“There are a number of matters which need to be raised in relation to the sentence imposed and the remarks of the sentencing judge. The first is the reference to “previous good character”. The sentencing judge was here referring to the fact that, as at the date of sentencing, the respondent had no prior convictions. He was also referring to the references, mentioned above, provided on his behalf. The sentencing Judge seemingly took this into account to some large degree as he did the lack of a likelihood to re-offend. Each of these, no doubt, depends upon the report of the registered psychologist which was in evidence before his Honour and before this Court.

[17] The difficulty with this approach, in relation to offences of this kind is that, similar to most white-collar crime, the non-apprehension of the respondent (or his prior good behaviour) is almost a necessary condition to the commission of the crime. In circumstances where the respondent faces 17 offences of sexual assault on children spanning a period of almost 20 years, previous good behaviour is a factor which ought provide little weight in favour of the respondent.”

54. As I observed in taking submissions at the sentence hearing the convictions recorded against the offender are almost “ancient history”. I will also ignore those for the purposes of determining sentence. The consideration that should be afforded the offender for his lack of record was the subject of discussion at the sentence hearing. I understood the joint position of the parties to be that the offender gets some credit for his lack of record but not the same amount of credit that he might receive in other circumstances. Independently this is what I have concluded, noting the authorities to which I have referred.

Victim impact statements

55. The Crown tender bundle includes victim impact statements from the two victims in the matter. I have carefully read and considered those statements. Those statements speak eloquently of the harm done by the offending for which the offender appears for sentence.

56. However, I note the Crown does not submit that the contents of those statements ground any finding of any factor of aggravation. Further, I note the effect of the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8. The Crown’s approach is, with respect, correct. However, the effect of the crime on the victim is something is taken into account pursuant to s 3A(g) of the Crimes (Sentencing Procedure) Act.

Subjective case for the offender

57. No oral evidence was called from or on behalf of the offender. However there was a substantial volume of written material which was received by my Associate on the (Sunday) afternoon of the day before the sentence hearing. The proceedings were stood down in order for me to read and digest that written material, including the written submissions.

58. Mr Parkin sets out in his written submissions the delay of three months between final submissions and the judgment of the trial matter. As I set out in detail at the sentence hearing I experienced a significant bereavement in the family (my mother) on 3 January 2020.

59. Part of the subjective material is a very comprehensive report from Professor Stephen Woods, which is exhibit 1 on sentence. It was in this report that the outstanding matter relating to the allegation of the offender slapping the buttocks of a woman at a motor dealership was revealed. That is said to have occurred on 30 October 2019. As I have already indicated I will ignore that matter.

60. In the “Executive Summary”, Professor Woods sets out (p 3 of the report) that the assessment of the offender in circumstances of him having been found guilty of the matters for which he appears for sentence reveals that he satisfies the criteria of “Paedophilic Disorder, likely pre and early stage pubescent sexually to females, limited to incest and it would appear form the available history restricted to two female individuals…” There is an alternate diagnosis of Hebephilic Disorder. Professor Woods explains that this subtype of paraphilic disorder is not specifically referred to in DSM-5 but is widely accepted by clinicians and researchers working in the area of paraphilia.

61. I note that Professor Woods was provided with the Crown Case Statement rather than a copy of the judgment in the trial matter. Although I accept given the verdicts I found the allegations made to be established beyond reasonable doubt the judgment contains extracts of the evidence of the victims and I would expect significantly more detail that the Crown Case Statement.

62. At p 7 of the report Professor Woods set out that the offender reported to have been impotent for a long time. The medical records, exhibit 2 on sentence, set out that on 20 August 2008 the offender had been prescribed and had a prescription of four tablets of Viagra filled. The material indicates that the offender found that Viagra did not work and did nothing further. There is no further material suggesting a referral to an urologist or any other relevant medical specialist. Professor Woods’ report goes on to say that the offender’s wife also confirmed her husband’s reports of him being fully impotent since long prior to 2015.

63. As I made clear at the sentence hearing, as did the Crown, the issue of impotence was not raised at the trial either by the accused or his wife. Given the allegations that the offender ejaculated a number of times this would have been a highly relevant issue. The solicitor who appeared for the offender at trial is known to this court as an experienced and capable advocate in the criminal law. There was ample opportunity for both the accused and his wife to raise this issue in their evidence at trial. I am extremely circumspect on this issue and if required to make a finding on the material available cannot find even on balance that the offender was impotent.

64. By way of general background (see page 8ff of Prof Woods’ report) the offender is now 64 years of age. His mother re-partnered when he was 8; until the age of 11 he grew up on a farm in the Young area and was raised by his maternal grandparents. He returned to the care of his mother and step father in order for him to be closer to school. He left school at the age of 15 years and has a limited formal education. He is married with four children each of who are now adults and have married and have children.

65. The offender participated in all aspects of the lengthy assessment interview and no evidence of sensory, perceptual or cognitive impairment was detected. His level of cognitive functioning was “felt” to be in the normal range. Professor Woods opined (p 11) that the offender’s presenting mood was consistent with that of low-grade depression. The offender told Professor Woods that he is deeply ashamed of the offences for which he has been convicted and is distressed by what he asserts to be false allegations that resulted in conviction. He has the continuing support of his wife and two youngest children.

66. Testing revealed that the offender indicated severe levels of distress consistent with the diagnosis of a depressive mood disorder. Responses to Depression and Anxiety inventories were found to be in the moderate clinical range.

67. At p 14 of the report Professor Woods says:

“In summary, Mr [N]s MCMI-IV clinical profile is consistent with a pervasive depressive mood disorder, variable severity, likely chronic and secondary to his current circumstances.

In circumstances where Mr [N] notwithstanding the guilty verdict continues to assert his innocence and noting his MCMI-IV identified underlying need to avoid social rejection and criticism, I believe it likely that he will continue to be motivated to deny any guilt.

Refusal to acknowledge guilt is not in the author’s experience uncommon in cases where the individual fears that to do so (i.e. acknowledge guilt) could result in the loss of support of significant others, in Mr [N]’s case his wife, daughter, son and friends”.

68. Professor Woods goes on (p 16 ff) to comment on the assessment of risk of re-offending from the NSW Department of Corrective Services, which is attached to the Sentence Assessment Report (SAR). The author of that report sets out that the offender is in the average range category of risk offending on the Static 99R relative to other male sex offenders. While Professor Woods acknowledges that the author of that report has correctly scored the offender on the “strict” criteria of the inventory. He expresses a number of concerns on the “utility of her findings” which are set out in some detail. Professor Woods then goes on to say (p 20) that the STATIC-99R test should not be the sole basis for determining future risk. He then conducts a comprehensive risk analysis noting the age at time of offending, the expected age and time of release, that the offending behaviour escalated over time only then to cease noting the “exclusive” nature of the victims, the lack of prior or post sexual offending, stable social support, various aspects of behavioural regulation noting that offence shame and guilt tend to serve against re-offending.

69. Ultimately Professor Woods opines (p 32) that the risk assessment of the offender has revealed him to be at low risk of re-offending noting his age at time of release, victim exclusivity, lack of future opportunity, pervasive high level of offence remorse and shame and the social support while in custody and on release. This opinion is repeated in the concluding comments at p 34 of the report. In particular I note Professor Woods opines:

“(the offender) is adamant that he did not commit the offences for which he was found guilty following trial. This however does not automatically translate to increased risk of re-offending.”

70. I note that the report annexed to the SAR assesses the offender as being in the average category of risk category to other male sex offenders. However, it seems to me that the matters raised by Professor Woods after his very thorough analysis are valid, particularly noting the issues of the age of the offender on his eventual release and the lack of opportunity. In all of the circumstances I am prepared to find on balance that the offender is unlikely to re-offend.

71. Professor Woods goes on to opine (p 33) that any future treatment should be directed towards assisting the offender gaining insight in general but in particular into the offending behaviour. The comment is then made that such individualised treatment is not available in custody.

72. The report then addresses the issue of hardship. The Crown appropriately conceded that custody will be more onerous for the offender noting his age (64), the nature of the offences and that he is in protective custody. I have no difficulty at all in finding that the offender will find it more onerous in custody because of these issues.

73. In addition to those issues there is also the COVID-19 pandemic which affects all inmates in all correctional centres. In this regard as I indicated at the sentence hearing I add my complete and respectful agreement to the observations of my colleague Haesler SC DCJ in R v Despotovski [2020] NSWDC 110 at [35]-[39]:

“The present crisis has increased apprehension by prisoners about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Prisoners cannot practice physical distancing, particularly sweepers whose job it is to clean within the gaols. Prisoners are personally unable to implement social distancing. They are completely reliant on the authorities; who have complete control over their lives.

Social visits have been suspended for an indefinite period, although access to telephone calls has increased: CSNSW memo response to COVID-19, 25 March 2020. Absence of visits from family and friends is an additional hardship.

These concerns and considerations apply to every prisoner sentenced and for sentence. I am however sentencing this offender today based on current knowledge of COVID-19 and the response to the crisis as advised by Corrective Services NSW.

If and in reality, it is when COVID-19 enters gaols early parole may be given to some prisoners: s 276 Crimes (Administration of Sentences) Act1999. The offender falls into a category that might be considered for early parole.

I cannot predict what will happen to this offender but the lack of visits reducing any capacity to remain in contact with pro-social friends and family, and that heightened anxiety and concerns, are relevant factors that must be synthesised along with all other matters. The extent to which those may be taken into account is a matter to be resolved on the particular facts of this individual case: Brown v R [2020] VSC 60 at [48]. Here his depression and anxiety will be exacerbated. Although I note his health concerns (they are not supported by other evidence), nothing in particular puts Despotovski at no greater risk than every other prisoner.”

74. Exhibit 2 on sentence is a volume of medical material. Increasingly I have found there is a tendency by those who appear for offenders to hand up a volume of raw medical notes and the like with little explanation. At least in this matter Mr Parkin was able to take me to the salient entries. The offender suffers from hypertension (high blood pressure) and is medicated for that.

75. On 27 November 2012 the offender sustained an injury to his back which is described in the “Suitable Duties Plan dated 6 February 2013” as “lumbar spine muscle sprain”. He was placed on light duties for a time. A CT scan subsequently showed mild multi-level degenerative change and a generalised disc bulge at L2/3.

74. The offender also suffered an injury to his left knee at work in November 2018. It would appear from the records that that issue was treated conservatively. A report from Dr Gana, Radiologist on 14 December 2018 gives the opinion that there was a complex tear to the body and posterior horn of the medial meniscus with paramensical cyst cluster posteromedially; deep chondrol fissuring on the lower half trochlea and superficial chondrol ulceration lower half patella and mild superficial infrapatellar bursitis and mild patellar origin patellar tendinosis.

75. The medical material was tendered to further ground the submission that the offender will find custody more onerous. I have no difficulty in making this finding.

76. Exhibit 3 is a bundle of testimonial references from a number of the offender’s family members and others. I am constrained to comment that the reference from the offender’s wife is quite inappropriate and with respect to counsel for the offender should not have been tendered in that form. Clearly, the incarceration of the offender has had a significant and adverse impact on the offender’s wife. However, she was in court when I gave the decision on 24 March 2020. The reasons were read out in court in their entirety as they should have been. Copies were made available. The offender’s wife should be aware of the reasons for the decision.

77. A similar observation can be made of the reference from the offender’s son DN who says in the ultimate paragraph of his reference, “…Myself and my family would like to see our father and grandfather be given a fair opportunity…” Other family members speak of the impact of the offender’s imprisonment on the family and also the issue of the COVID-19 pandemic. I have already dealt with that issue.

78. I have read and considered each of the large number of references. The offender is able to assemble references from a wide cross-section of the community. The references speak well of him. A number of the referees (e.g. the offender’s sister for one) say that would have no issue trusting the offender around their children. The references also speak well of the offender’s work ethic.

Submissions

81. Both counsel have provided helpful written submissions. Mr Parkin in his submissions goes initially to the personal background of the offender, noting his age of 64 and that he suffers from high blood pressure and knee and back problems. Those issues have been dealt with above. Submissions are made on the objective seriousness of the offending but that has been dealt with when dealing with the facts. If I have not made it clear I am not prepared to take into the uncharged acts when assessing the objective seriousness of the offending. Submissions are made on the victim impact statements and again, that is an issue already dealt with.

82. Mr Parkin for the offender submits that I would find on balance that the offender is unlikely to re-offend. I have already made that finding.

83. However, there is no evidence on which I could find that the offender is remorseful, noting in particular on this aspect that he still denies the offending. Given that denial I am essentially unable to make a finding that there are good prospects of rehabilitation. I have considered carefully the opinion of Professor Woods. There are some prospects of rehabilitation, but I am not prepared to make a finding that there are “good” prospects of rehabilitation.

84. I accept for the reasons already given that the offender will experience hardship in custody such that any term of imprisonment will be felt more severely than a member of the ordinary prison population. The issue of character and lack of prior history has been dealt with at some length earlier in these reasons.

85. At p 6 of his written submissions Mr Parkin advances a submission that I should find and take into account hardship to third parties. As I understood the written submissions this is put forward on the basis that because of the restrictions on visiting the offender in custody because of the COVID-19 pandemic restrictions the family members have experienced hardship as to enliven the principles enunciated in cases such as Hopley v R [2008] NSWCCA 105. I understood that that argument was abandoned at the sentence hearing. However, if I misperceived counsel’s arguments then I am not prepared to make a finding that the circumstances are “truly, wholly or highly exceptional”.

86. The various factors of aggravation have been dealt with. I will deal with the issue of totality later in these remarks. I agree that there should be a finding of special circumstances noting the Crown does not oppose such a finding in this matter. The offender’s age, the fact that this is his first time in custody and the need for assistance in reintegration into the community are reasons for a finding of special circumstances.

87. The parties agree that the sentence should commence on 24 March 2020 which was the day the offender entered custody after bail was revoked.

88. There has been a significant delay in the finalisation of proceedings, none of which is attributable to the offender. It is submitted on behalf of the offender that some consideration be factored into the instinctive synthesis approach to determining the sentence for the delay. The Crown opposes any amelioration of sentence because of delay in initially bringing the proceedings (paragraph 29, MFI 1 on sentence).

89. However, there was a delay occasioned by the matter being adjourned because of late service of a Tendency Notice and then again when an issue arose in the evidence in chief of KN about the timing of the events to which counts 18 to 21 inclusive relate. I accept that this would have caused some uncertainty and suspense with the offender and accordingly there should be some consideration for that delay.

90. The Crown also deals with the issue of totality in the written submissions.

General Remarks

91. Given the number of offences for which the offender appears for sentence this is an appropriate matter for imposition of an aggregate sentence. It will of course be necessary to indicate what sentences would have been imposed had separate sentences been imposed. I will do that in table form.

92. There are also the issues of totality and accumulation to consider. There would need to be meaningful accumulation of sentences between the various episodes of offending in respect of both victims. There is also a need for some accumulation between the various offences within the episodes of offending e.g. counts 1 to 6 involving TWN. However, the level of partial accumulation as between the counts relating to the one episode of offending would be very slight noting that the episodes were generally one ongoing course of offending.

93. On the issue of totality Johnson J (Adamson & Bellew J agreeing) in Maxwell v R said at [114]:

“The totality principle requires the Court, where there is a series of offences, to review the total sentence and consider whether the aggregate is a just and appropriate measure of the total criminality involved. It has been said that the Court should “take a last look at the total just to see whether it looks wrong” with this involving consideration of the totality of the criminal behaviour and a check as to whether the proposed sentence is appropriate for all the offences. In this context, it has been said that the totality principle serves to ensure that an offender is not subjected to a “crushing sentence”: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [70]-[71]. In ZA v R, Fullerton J and I said at [84]:

‘As this Court said in R v MAK; R v MSK at 165 [17]-[18], in cases of multiple offending, the particular offender may warrant what is a very substantial sentence which, in the view of some, might be capable of being characterised as a crushing sentence. However, the ultimate sentence to be imposed should bear reasonable proportionality to the objective gravity of the offences for which the Applicant was to be sentenced.’”

94. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

95. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless, having considered all possible alternatives, no other sentence is appropriate. Clearly in this matter given the multiplicity of the offending, the type of offending, the maximum penalties, the standard non-parole periods and the need for general deterrence there must be a substantial sentence of imprisonment. No contrary submission was made. Clearly that imprisonment must be full time custody.

96. The parties agree that the sentence should commence from 24 March 2020.

97. I invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. The sentences that would have been imposed had separate sentences been imposed are set out in a table that follows. I note again that number of the offences of aggravated indecent assault against KN are particularly serious examples of such offending.

Offences relating to TWN

Count	Offence	Description	Maximum Penalty	Indicative sentence
1	Indecent Assault on Person Under 10 21.8.03 – 21.8.05 s 61M(2) Crimes Act 1900	(Counts 1 – 6 during a visit to accused’s house) Rub hands on breasts on outside of clothing Victim aged 7 – 8 years	10 years SNPP 5 years	NPP 5 months; total sentence 7 months
2	Indecent Assault on Person Under 10 21.8.03 – 21.8.05 s 61M(2) Crimes Act 1900	Rub vagina on outside of clothing – victim aged 7-8 years	10 years SNPP 5 years	NPP 6 months; total sentence 9 months
3	Indecent Assault on Person Under 10 21.8.03 – 21.8.05 s 61M(2) Crimes Act 1900	Hand under clothing and rub breasts Victim aged 7-8 years	10 years SNPP 5 years	NPP 6 months Total sentence 9 months
4	Indecent Assault on Person Under 10 21.8.03 – 21.8.05 s 61M(2) Crimes Act 1900	Hand under dress and rub vagina on outside of underpants Victim 7-8 years	10 years SNPP 5 years	NPP 12 months; total sentence 18 months
5	Indecent Assault on Person Under 10 21.8.03 – 21.8.05 s 61M(2) Crimes Act 1900	Rub vagina inside underpants Victim 7-8 years	10 years SNPP 5 years	NPP 1 year 8 months; total sentence 2 years 6 months
6	Indecent Assault on Person Under 10 21.8.03 – 21.8.05 s 61M(2) Crimes Act 1900	Took hand and placed on penis on outside of shorts Victim 7-8 years	10 years SNPP 5 years	NPP 12 months; total sentence 18 months
7	Indecent Assault on Person Under 10 21.8.03 – 21.8.05 s 61M(2) Crimes Act 1900	During play wrestle pulled down shorts and touched vagina on outside of clothing Victim 7-8 years	10 years SNPP 5 years	NPP 12 months; total sentence 18 months
8	Indecent Assault on Person Under 10 21.8.03 – 21.8.05 s 61M(2) Crimes Act 1900	In bed during sleepover – offender rubbing against victim	10 years SNPP 5 years	NPP 12 months; total sentence 18 months
9	Indecent Assault on Person Under 10 21.8.03 – 21.8.05 s 61M(2) Crimes Act 1900	Continuing from count 8 – took hand and placed on his penis on outside of clothing.	10 years SNPP 5 years	NPP 12 months; total sentence 18 months

98. Offences relating to KN

10	Indecent Assault on person under 16 years 1.1.10 – 31.12.10 s 61M(2) Crimes Act	Counts 10-14 the same ongoing incident after offender collected victim from school. Count 10 relates to offender pulling both their pants down and then touching her on the chest area Victim 4-5 years	10 years SNPP 8 years	NPP 18 months total sentence 2 years
11	Sexual Intercourse with Child Under 10 1.1.10 – 31.12.10 s 66A(1) Crimes Act	Digital penetration Victim 4-5 years	25 years SNPP 15 years	NPP 7 years 4 months; total sentence 11 years
12	Indecent Assault on person under 16 years 1.1.10 – 31.12.10 s 61M(2) Crimes Act	Place penis between the victim’s legs move back and forth and offender ejaculates Victim 4-5 years	10 years SNPP 8 years	NPP 5 years, total sentence 7 years 6 months
13	Sexual Intercourse with Child Under 10 1.1.10 – 31.12.10 s 66A(1) Crimes Act	In garage – act of fellatio Victim 4-5 years	25 years SNPP 15 years	NPP 8 years; total sentence 12 years
14	Indecent Assault on person under 16 years 1.1.10 – 31.12.10 s 61M(2) Crimes Act	Took hold of victim’s hand and placed it on his penis while it was in her mouth	10 years SNPP 8 years	NPP 2 years, total sentence 3 years
15	Indecent Assault on person under 16 years 1.1.14 – 31.12.15 s 61M(2) Crimes Act	Counts 15-17 “Debbie Does Dallas” incident. Hand on breast under clothing Victim 9-10 years	NPP 12 months, total sentence 18 months
16	Indecent Assault on person under 16 years 1.1.14 – 31.12.15 s 61M(2) Crimes Act	Mouth over breasts, licking breasts Victim 9-10 years	10 years SNPP 8 years	NPP 15 months, total sentence 1 year 8 months
17	Indecent Assault on person under 16 years 1.1.14 – 31.12.15 s 61M(2) Crimes Act	Pull s victim’s pants down, positioned behind her, simulating sex until ejaculation Victim 9-10 years	10 years SNPP 8 years	NPP 5 years, total sentence 7 years 6 months
18	Indecent Assault on Person under 16 years 1.1.10 – 31.12.10 s 161M(2) Crimes Act	Counts 18-21 – “Room to room incident.” In lounge room – penis on vagina Victim 4-5 years	10 years SNPP 8 years	NPP 4 years 6 months, total sentence 7 years
19	Indecent Assault on Person under 16 years 1.1.10 – 31.12.10 s 161M(2) Crimes Act	Move to kitchen – exact same thing – penis between legs on vagina	10 years SNPP 8 years	NPP 4 years 6 months, total sentence 7 years
20	Indecent Assault on Person under 16 years 1.1.10 – 31.12.10 s 161M(2) Crimes Act	Move to toy room, victim on chair, penis on vagina	10 years SNPP 8 years	NPP 4 years 6 months, total sentence 7 years
21	Indecent Assault on Person under 16 years 1.1.10 – 31.12.10 s 161M(2) Crimes Act	Move to room occupied by victim when she stayed over. Penis on vagina	10 years SNPP 8 years	NPP 5 years, total sentence 7 years 6 months

Orders

99. In respect of each of the 19 counts on the indictment the offender is convicted.

100. The offender is sentenced to an aggregate sentence of seventeen years with a non-parole period of 11 years and 4 months .

101. The non-parole period will commence on 24 March 2020 and will expire on 23 July 2031.

102. The balance of term of 5 years 8 months will commence on 24 July 2031 and expire on 23 March 2037 .

103. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

104. The non-parole period is two thirds of the total sentence which indicates a finding of special circumstances the reasons for which have been enunciated earlier in these reasons.

105. I direct a copy of the report of Professor Woods i.e. exhibit 1 on sentence be annexed to the warrant that is forwarded to the Department of Corrective Services.

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Decision last updated: 23 October 2020