R v Guevara

[2023] NSWDC 655

District Court

New South Wales

Medium Neutral Citation:

R v Guevara [2023] NSWDC 655

Hearing dates:

5 October 2023

Date of orders:

5 October 2023

Decision date:

05 October 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 11 years with a non-parole period of 7 years 2 months

Catchwords:

CRIME — Sexual offences — Indecent assault — Circumstances of aggravation

CRIME — Child sex offences — Indecent assault >16 — Circumstances of aggravation — Sexual intercourse with child >10 <14

SENTENCING — Aggravating factors — Breach of trust — Multiple victims

SENTENCING — Guidelines for sentencing — Role of guidelines — Administration of justice was facilitated by the conduct of the defence

SENTENCING — Mitigating factors — Good character — No record of previous convictions

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Sentence after guilty verdicts at trial — Delay — General principles — Moral culpability — Multiple offences — Accumulation, concurrency and totality — Aggregate sentences — Crushing sentence — Objective seriousness — Purposes of sentencing

SENTENCING — Sentencing procedure ­ —Instinctive synthesis — Disputed facts — High Risk Offender warning given

SENTENCING — Subjective considerations on sentence — Significant childhood trauma — Experienced war and war related violence —Refugee

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act1999 (NSW)

Cases Cited:

BT v R [2010] NSWCCA 267

Cahyadi v R [2007] NSWCCA 1

Campbell v R [2014] NSWCCA 102

Christov v R [2009] NSWCCA 168

Corby v R [2010] NSWCCA 146

Decision restricted [2023] NSWCCA 10

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.

GSH v R; R v GSH [2009] NSWCCA 214

LB v R [2019] NSWCCA 151

MAK v R [2006] NSWCCA 381

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Clinch (1994) 72 A Crim R 301

R v Doff [2005] NSWCCA 119

R v Gavel [2014] NSWCCA 56

R v Herring (1956) 73 WN (NSW) 203

R v KNL [2005] NSWCCA 260

R v NJK [2011] NSWCCA 151

R v R E [2023] NSWCCA 184

R v Van Ryn [2016] NSWCCA 1

R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 13

RJA v R [2008] NSWCCA 13

Ryan v The Queen [20011] HCA 21; (2001) 206 CLR 267

Tepania v R [20018] NSWCCA 247

Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Texts Cited:

W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497

Category:

Sentence

Parties:

Miguel Enoc Guevara (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
C Doosey (for the offender)
K Ratcliff (for the Crown)

Solicitors:
Auslex Law Group (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s):

2017/391067; 2018/63204; 2022/138363

Publication restriction:

Pseudonyms have been used for the names of the complainants who were at the relevant times children. Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statutes.

JUDGMENT – ex temporE revised

Introduction

1. On 14 August 2023, a jury found Miguel Guevara guilty of 13 counts relating to his sexual interference with four girls between approximately 2004 and 2012. He was acquitted of two counts. He must have the full benefit of those acquittals.

2. The trial was conducted efficiently and distress to the complainants minimised, so far as was practicable. There were Agreed Facts which saved days of trial time. The administration of justice was facilitated by the conduct of the defence. It will be taken into account on sentence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A; R v Doff [2005] NSWCCA 119 at [58(c)]; Christov v R [2009] NSWCCA 168.

3. Guevara is to be sentenced for:

• Five counts of aggravated indecent assault: Crimes Act 1900 (NSW), s 61M(1).

• Six counts of aggravated indecent assault for a person aged under 16: Crimes Act, s 61M(2).

• One count of sexual intercourse with a child between 10 and 14 years: Crimes Act, s 66C.

• One count of committing an act of indecency: Crimes Act, s 61N(1).

4. I note that the reason for both s 61M(1) and s 61M(2) charges being laid was that the relevant provisions were subject to legislative change between 2007 and 2009.

5. The charges relate to four complainants:

1. Pearl, who was aged between nine and 10 at the relevant time. For all relevant purposes, she will be regarded as being over 10: Crimes Act, s 80F.

2. June; who was 15 years old at the relevant times.

3. Mallory; who was between nine, 10 years old at the time, but for all relevant purposes will be regarded as being 10 years.

4. Tiffany, who was possibly between nine and 10 when the offending commenced. She will be regarded, for relevant purposes as being 10 or older. She was 12 when the last three offences, Counts 13, 14 and 15, were committed.

6. The matters went to trial. Each of the complainants gave evidence. The relevant facts must be determined by me and must be consistent with the jury's verdicts. As I have said, the offender must have the full benefit of the acquittals.

7. I proceed on the basis that the jury accepted the accounts of each of the complainants in relation to the specific allegations that were before the Court.

8. The only factual dispute of any moment relates to some of the context evidence so far as Mallory was concerned. I note that where there was a conflict between her evidence and that of her mother, so far as the opportunity of the offender to commit multiple offences, I preferred the evidence of her mother. That does not mean that there were no other incidents. Rather, it is impossible to say how many incidents there were, or where they occurred, or their nature. This is understandable as it is the child who was trying to relate matters that occurred many years before.

Facts for sentence

9. I have sought to keep the facts in this judgment to their bare minimum. I do not believe it is necessary to go into all the prurient details.

Pearl’s allegations

10. Pearl's allegations were all charged as assault and commit an act of indecency to a child. Pearl's mother was a neighbour and friend of Guevara's. He would visit her home and, at times, get her to clean his house. In short summary:

1. Count 1 – Guevara was minding the child while her mother went to get take away food. He rubbed her breast and vaginal area over her clothes.

2. Count 2 – On the same occasion, he pressed his penis against Pearl 's back, over her clothes.

3. Count 3 – On another occasion while her mother was cleaning at his house, the offender touched Pearl 's breast, over her clothes.

11. The accused was acquitted of Counts 4 and 5. Pearl had alleged further touching occurred while she was outside her home. I accept that the evidence of Pearl’s mother may have raised a doubt as to these allegations; which related to something that was said to have occurred after she had been kicking a ball around.

June’s allegations

12. June's allegations were each charged as assault and an act of indecency of a child aged under 16. They relate to an incident where the offender invited June to go for a ride in his small motorboat off the coast of Wollongong. In short summary:

13. Count 6 – The offender rubbed June's breasts under her clothes.

14. Count 7 – The offender rubbed June's genital area over her clothes and then kissed her cheek.

Mallory’s allegations

15. Mallory's allegations were charged as counts of indecent assault of a child aged under 16 and one count of sexual intercourse with a child aged between 10 and 14 years. In short summary:

• Count 8 – At Fairy Meadow, while in her mother's bed, Guevara touched Mallory’s genital area; first instance.

• Count 9 – Guevara following that first incident while still in the child’s mother's bed, he moved her hand onto his penis.

• Count 10 – The offender and the child were again in her mother's bed. He touched her and then placed a finger inside her genital area. It caused her discomfort. It caused her pain. She asked him to stop. He did not stop. The penetration was of the outer area of the genitals.

• Count 11 – Following that incident, he moved Mallory’s hand onto his penis.

Tiffany's allegations

16. In short summary:

• Count 12 – While she was sitting on his lap he touched her breast under her shirt.

• Count 13 – On the next occasion he touched her inner thigh while she sat beside him in his car as he was driving her home after a netball gala.

• Count 14 – When they got home, after the netball gala, the offender straddled and rubbed against her while she was lying on the floor.

• Count 15 – On another occasion Guevara went to her family home after playing sport to get ready to go to the movies with Tiffany’s mother. He had a shower and came out of the bathroom wearing only a towel. He opened the towel showing Tiffany his penis.

Objective seriousness

Parties’ submissions

17. There was some agreement and some dispute as to where, on the scale of objective seriousness, each of the offences occurred.

1. Count 1 – The Crown submits it was towards the middle of the range – the defence, below middle of the range.

2. Count 2 – Crown say toward the middle; the defence, below the middle of the range.

3. Count 3 – Crown, lower end; defence below the middle.

4. Count 6 – Crown towards the middle; defence below the middle.

5. Count 7 – Crown towards the middle; defence below the middle.

6. Count 8 – The Crown say this matter falls squarely within the mid-range. The defence submit it was lower than mid-range.

7. Count 9 – The Crown submit this is well within mid-range. The defence submit it was lower than mid-range.

8. Count 10 – The Crown say well within mid-range. As I interpret the defence submissions, this is offence lower in the range than mid-range because of the limited degree of penetration of the genital area and not of the vagina.

9. Count 11 – The Crown submit this is well within mid-range. The defence submit it was lower than mid-range.

10. Counts 12 – The Crown say middle of the range; the defence submit it falls below mid-range.

11. Count 13 – The Crown and the defence agree this is low in the range.

12. Count 14 – The Crown submit mid-range; the defence submit low.

13. Count 15 – Both parties accepted it is low in the range.

A dispute about where in the range a matter falls

18. All but the s 66C and s 61N Crimes Act offences carries standard non-parole periods. I am required to give content to the standard non-parole period. In such matters, I am required to assess the objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. However, as the High Court in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 made clear, in doing so, I cannot engage in a staged approach to sentencing.

19. The process of comparing and contrasting the actual offence with an abstract one is in my opinion, not necessary, 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: Tepania v R [20018] NSWCCA 247 at [103]-[120].

20. In matters such as this, the courts have two legislative guideposts. The maximum sentence and the standard non-parole period. I must admit to having some difficulties in giving a subjective opinion about where any crime might fit in a range of objective seriousness. Such assessments can encourage judges to engage in a staged sentencing calculation.

21. As the Court of Criminal Appeal in New South Wales made clear in Regina v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [131] it:

“… is not appropriate … for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender's guilt was established after trial or … plea), at the standard non-parole period, and then oscillate about it by reference to aggravating and mitigating features. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved ...”

22. Unlike statistical or distance calculations, there are no objectively fixed points to measure a range of objective seriousness of crimes.

23. Referring the NSW standard non-parole period requirements, the High Court said, in Muldrock at [29].

“A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to ‘mak[ing] a record of its reasons for increasing or reducing the standard non-parole period’ is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences.”

24. Sentencing is intuitive. It is not always strictly logical. It is not a mathematical process. Not every matter urged on a judge can be fitted into categories. Human behaviour and human characteristics are too varied. The sentencing exercise involves a synthesis of competing features which attempt to translate the complexity of the human condition and human behaviour to the mathematics of human punishment. They are usually expressed in time or money: Weininger v The Queen (2003) 212 CLR 629.

25. One Court of Appeal has noted that if an issue about where a matter fits in range is contested, and it could form a significant part of the evaluation of what would be the appropriate sentences, Judges “are obliged to resolve the disputed issue as to where this particular offence fell on the spectrum of objective seriousness”: Owen v R [2022] NSWCCA 214 at [49].

26. This creates a dilemma because for the reasons outlined above and because sentencing is, ultimately, intuitive. A judge has to make a sentencing judgment and an intuitive judgement could never resolve every issue put in dispute. Rather a judge must give reasons and expose their reasoning. To do so, assists in the public awareness of the sentencing process.

27. Where labels are allowed to dominate and where one is asked to deal with something on a hypothetical range which has no inherent meaning, I do not believe the public could glean much understanding by the labels suggested by the parties. Rather, one has to look at the particulars of the case not the labels or descriptors used: R v R E [2023] NSWCCA 184 at [35].

28. As Justice Button once noted that: “Fine distinctions based on artificial segmentation are in my respectful opinion unnecessary; [and] apt to confuse”: Decision restricted [2023] NSWCCA 10 at [52] (Button JA).

29. I agree with Button J.

Assessing objective seriousness

30. That said, assessment of objective seriousness of each offence is, and has always been, a critical component of the sentencing process: Campbell v R [2014] NSWCCA 102 at [27]; Markarian. I trust that my assessment of the relative offences will be able to be readily apparent from these sentencing remarks.

31. I start with a fundamental proposition. Every act that involves the sexual exploitation of a child is a serious offence. There is an absolute prohibition on sexual activity with children. That prohibition is “intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity”: Clarkson v R [2011] VSCA 152, cited with approval in R v Gavel [2014] NSWCCA 56. That is one important reason for the high maximum penalties fixed for offences now before me and the standard non-parole periods.

32. In every sentencing exercise I must consider:

1. The actual character of the assault: R v Van Ryn [2016] NSWCCA 1.

2. The degree of physical contact involved: Corby v R [2010] NSWCCA 146 at [72].

3. The part of the body touched, and the part of the body used for the touching.

4. Whether there was skin-on-skin contact, and the degree of that skin-on-skin contact and the nature of that skin-on-skin contact: GSH v R; R v GSH [2009] NSWCCA 214.

5. I must consider the age differential between the perpetrator and the child: Corby at [77].

6. I have to consider the age relative to the age range encompassed by the offence; “The younger the child the more serious the offence”: R v KNL [2005] NSWCCA 260 at [42] (Latham J); RJA v R [2008] NSWCCA 13 at [13].

7. Any relationship between the child and the offender.

8. Where the offence occurred.

9. And, what efforts the offender made to gain access to the child.

33. Here, in each matter, the offender was trusted by the mother of the child to be with that child and alone with that child.

34. So far as Tiffany was concerned, the occasions when he went to the netball game and picked her up and drove her home and then looked after her at the home, he was in a formal position of trust as her babysitter. That is a specific aggravating feature in s 21 A(2) Crimes (Sentencing Procedure) Act. My focus will be primarily upon the trust that was placed in him as an adult who was looking after her child.

35. So far as each of the children was concerned, rather than apportioning a label to his behaviour I find that he exploited the trust that had been shown in him by the mothers of the children. He was a trusted friend, and he abused that trust.

36. Guevara presented, and was to everyone, and particularly the girls’ mothers, a man of good character, a man who cared about people, who cared about the mothers and cared about their children. He led a second life which included the exploitation of those children.

37. The events occurred either in the home of the child or at a place where he had, with parental permission, the child, either a boat or a car. In every one of those situations, particularly in their homes, the child was entitled to expect safety and security, not abuse.

38. Turning specifically to the various complainants and the charges.

Pearl

39. Guevara exploited his friendship with Pearl 's mother. In the first two offences, he manufactured excuses to be alone with her. In another, he took advantage of her presence at his home. His actions were designed to give him satisfaction and exposed her prematurely to sexual activity. While his actions were, relative to many such crimes, low, given the level of physical assault contemplated by the offence, my focus must be on the impact on the child and the impact of the child was one that deeply disturbed her. She was, at the relevant time, about 10 years old.

Mallory

40. The general principles I have set out apply both to indecent assaults and sexual intercourse. So far as sexual intercourse is concerned, there is no hierarchy of types of intercourse. That is because courts focus not on the object used to penetrate a child, although, in some cases it can be of particular relevance, but rather, on the interference with the bodily and physical integrity of the child.

41. Here, Mallory was caused discomfort and pain. She asked Guevara to stop. He did not stop. There was a physical invasion of the child who was in her mother's bed. The degree of penetration, however, in this matter, was relative to most acts of intercourse, less intrusive, but my focus must be on what did occur as opposed to the absence of more aggravating features. In this matter (Count 10), to resolve that apparent controversy, I cannot accept the defence submission that the matter falls below the mid-range.

40. So far as the indecent assaults are concerned, each indecent assault focused on the child's genital area. Guevara then used her as an object, using the child to touch him for his own sexual satisfaction. In doing so, he grossly abused the trust her mother had placed in him and exposed a vulnerable child to premature sexual activity by skin-on-skin contact. She was only young, just 10. She was in her own home, and she was taken advantage of, preyed upon. The incidents were not isolated.

June

43. June was older than the other victims, but still a child. She, however, was isolated and vulnerable on a boat. There, she was totally dependent on Guevara for her safety and wellbeing. He manufactured the event. He exploited her isolation. He exploited his relationship with her mother, presuming correctly, and he exploited his relationship and knowledge of the child, presuming correctly, that she would not complain. His actions in the first incident, involved skin-on-skin contact. In both, he used this child for his own ends.

Tiffany

44. Tiffany's mother trusted Guevara to pick up and look after her daughter. He abused that trust. She was initially young, and the events persisted as she got older. She was exploited. He acted on apparent attraction to her on a number of occasions. She made it clear to him that his actions upset her, yet he persisted. While each act itself might be lower in the range of offences of its type, each event charged was in all the circumstances, serious.

Assessment

45. I do not believe it is necessary to go any further, except to say that each of these matters involved serious offending. Each of these matters requires custodial sentences of some length. I have sought in the sentences to be imposed, to reflect relativities between what was done for each type of offence.

46. Penalties require consideration of a vast number of other matters and principles. So far as the complainants are concerned, they should not seek to weigh the harm that they suffered against the penalty that must be imposed.

Maximum penalties and standard non-parole periods

47. Section 61M(1) at the relevant time had a maximum penalty of 7 years and a standard non-parole period of 5 years. Section 61M(2) at the relevant time had a maximum penalty of 10 years and a standard non-parole period of 8 years. Section 66C(1) carried a maximum penalty of 16 years and s 61N(1), 2 years.

48. Careful attention to maximum penalties, and where applicable, the standard non-parole period is required, not just because Parliament has legislated for them, but because both provide sentencing measures which must be balanced with all other relevant factors.

49. Content must be given to the standard non-parole period, where applicable. Section 61M(1) and s 61M(2) have now been repealed. At the time they operated the relativity or ratio between the maximum penalty and the standard non-parole periods was described by judges of the Supreme Court as “absurd” or “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. However, another court noted, speaking of s 61M(2): "Nevertheless, an eight year standard non parole period has been prescribed by the Legislature and the courts must give effect to it": R v NJK [2011] NSWCCA 151 at [40].

Criminal Record

50. The offender had one matter on his criminal antecedents during the course of the offending, but no conviction was recorded. Were it not for the commission of these offences, he would have been regarded as a person of good character. After these offences, he was convicted of a number of drug matters in Queensland and served a period on remand which was counted as the non-parole period of his sentence, using New South Wales terminology.

Victim impact

51. There was no Victim Impact Statement received from June or Tiffany. The absence of a Victim Impact Statement does not give rise to any inference the offence had little or no impact on the child complainant: Crimes (Sentencing Procedure) Act, s 30E (5). It certainly does not mitigate the sentence.

52. The absence of a Victim Impact Statement is completely understandable. It is for the complainant to make the decision as to whether to provide such a statement and, in my experience, the drafting of such statement can trigger or bring back memories that people would rather not revisit. In my experience, the conclusion of a trial or plea or guilty to matters such as this and then the sentencing, enables the complainants to, in a sense, turn down the volume and focus, not on the Court process, but on their own recovery.

53. I have a Victim Impact Statement from Pearl. It was read by her godmother. She speaks of how badly her life was affected and her anger. She speaks of the years she has suffered, particularly, her teenage years. She speaks of mental health issues due to the traumatising experience and the destruction of trust, particularly when it comes to men, but she says and concludes; "Today I have become a much stronger and independent young woman who has more control over her life. From this day forward, my life will no longer be based around this situation."

54. I also have a Victim Impact Statement from Mallory. She asks that I not read it out or repeat in the judgment. She notes a number of serious consequences to her of these assaults.

55. It is not submitted that the evidence in the Victim Impact Statements goes to the level of being an aggravating circumstance being substantial: Crimes (Sentencing Procedure) Act, 21(2)(g). Courts do not ignore the impact of other non-charged acts on a child, but it is impossible for me to make any finding as to the extent of those other acts or take into account their impact. My focus has to be on the offences for sentence.

56. The Victim Impact Statements I have received attest to the personal harm suffered as a direct result of the offences committed. They serve the very practical purpose of drawing to the Courts', the community's and the offender's attention, the personal harm caused by what he did. They will be taken into account.

Subjective case

57. I have as Exhibits 1 and 2, material going to the personal situation of the offender. There are references from partners, present and ex, relatives and others who have known him for a long time, including a number of young women who had contact with him during the relevant period. They find it hard to believe that the man who committed these offences is the same man they know.

58. The referees speak of; a hardworking, supportive person who goes beyond what is needed to help others, who is self-less and giving of his time, who is a person of good humour, a talented musician who enjoys entertaining, has provided support to others in his home country and radiates positivity. Guevara is described as a hard-working man who ran his own company and who provided work experience to others, who worked and provided services to people in not dissimilar ways he did to mothers of the children involved.

59. I also have material about to his personal background. It is referred to in the references and is carefully set out in the affidavit of his sister. This background is uncontroversial.

60. Guevara’s family were from El Salvador. He was born in 1974. There were a number of children in the family. The offender was the youngest boy and the fifth born child. The family did not have much food, stable accommodation or access to clean drinking water. Their father, who was both a Minister and a truck driver, was away from home a lot. He did all he could to ensure the children got good schooling and were given new schoolbooks.

61. The family was significantly impacted upon by a natural disaster which killed an older sister and the El Salvador civil war. Many people they knew were killed. There were very strict curfews. During the civil war, male children, including this offender, were regularly picked up on the streets and taken away by the army and inducted into the armed forces. The offender made a number of attempts to escape El Salvador. On one occasion he was returned from Mexico sickly and unwell. He was taken multiple times by the army and each time it became harder for him to escape them. Threats were made to the family who resolved to leave the country. They left, as refugees, with the clothes they were wearing. One brother who was serving in the army remained.

62. They arrived in Australia in 1991 and lived in Southern Wollongong. None could speak English. They engaged with local schools and intensive English courses. His sister recalls her brother struggling to adjust to life in Australia. She says that the first years in Australia were very isolating, particularly given their lack of English fluency. She recalled at time when the offender and his father argued. He moved out of home when he was in Year 11 or 12. He pursued successfully a career as a builder.

63. She notes that he has travelled back to El Salvador to visit family. He has performed, as a musician both here and El Salvador. He also spent some time in the United Sates, where he has a son. She describes her brother, consistent with the other references, as “incredibly generous, always willing to help, and the man who has done his best to take care of his family and friends”. He is she says “respectful and hardworking” despite everything he went through as a child.

Submissions

64. I am indebted to both Ms Ratcliffe, the Crown Prosecutor, who appeared at trial, and Ms Doosey, for the defence, who also appeared at trial, for their written submissions. I have, in the course of this judgment, sought to deal with matters of significant dispute between them.

65. Ms Doosey submitted that the offender's time in custody would be harsher because he would be placed on protection. I cannot make that finding. Much will depend upon where he is classified to and who he is classified with. I do not ignore the lived experience of gaol. He spent some time, subject to COVID-19 restrictions, although they have been lessened. His time in gaol will not break community ties but will mean that he is not subject to the same prosocial support of friends and family. He will be removed from the community for a period. He will need time and assistance in readjusting to normal community life.

66. The particular traumatic events detailed in his sister's affidavit are not in dispute. A background such as that is, is always relevant when it comes to determining an appropriate sentence. Just as I do not undervalue the trauma suffered by victims of sexual assault, nor do I in any way undervalue the trauma suffered by those who are impacted on by civil war and fleeing a country with the clothes they are wearing and coming to another country as refugees.

67. The effects of childhood deprivation should be given full weight in every sentencing exercise, and I will do so. But that does not mean that a person's moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the sentencing process known as instinctive synthesis. There is no evidence before me from which I can draw a conclusion about a lack of, or lesser, moral culpability because of this offender's experience of trauma. Nor is there any evidence that the particular traumas he suffered will make his life in custody any harder, or of any underlying psychological or psychiatric difficulties.

68. In part, this is as a result of his right to say in Court that he is not guilty of the offences and that right must be respected. He is not punished for going to trial. In fact, he gets some advantage because of the expeditious way in which the trial was conducted, but he does not get the advantage often given when people plead guilty. Generally, that benefit must be given if someone enters an early guilty plea and earns what is called the ‘utilitarian value discount’.

69. It also means that he has not accepted responsibility and he has not expressed any remorse. Again, he is not punished for those facts, but he does not get the benefits often given if they are genuinely expressed.

70. His good character, up until he started committing these offences, is a matter that must be taken into account in mitigation of penalty. The statutory exception to this rule does not apply, but there are some cases, classes of offences where good character carries less weight than others. That is because they are often committed by persons of otherwise good character, and they include child sexual assault offences (where s 21A(5)(a) does not apply on the facts). This particular category includes matters such as this where there is repeat offending and repeat victims.

71. As Justice McHugh J said in Ryan v The Queen [20011] HCA 21; (2001) 206 CLR 267 at [23]:

"When considering the element of prior good character, the Court needs to distinguish two logically distinct stages.

(1) He must determine whether the prisoner is otherwise of good character. In making this assessment, the judge must not consider the offences for which the prisoner is being sentenced;

(2) If the prisoner is otherwise of good character, the sentencing judge is bound to take that fact into account."

72. The weight given to it will vary in the circumstances. Here, as I remarked during the course of submissions, the evidence establishes that there were two very distinct sides to Guevara. The first, is a man who has overcome a significant difficulty in his life to establish a business and establish himself in the community, who is respected and has given things back to individuals and the community, both here and in his home country, a man who has an opportunity to lead a law-abiding life and a positive law-abiding life in the community. The second is a man, who at the same time, was exploiting children for his own sexual gratification.

Synthesis

73. It is clear from the material before me, that the offender suffered significant trauma as a child in his home country. Having come to this country as a refugee from a violent war-torn country, he struggled for a period to adjust, but he was able to adjust. He was able to obtain a position of respect. The evidence at trial noted his sporting prowess for local football teams, his community activities. The evidence shows he is a talented musician. He was able to provide work, not just for himself, but for others. He was a good and respected worker.

74. When it comes to his future, the Court must be guarded, because those who speak highly of him, even until today, were not aware of the other side to him and those who experienced the other side of him have been damaged by what he did.

75. One of the purposes of sentencing is by the harshness of penalty imposed to cause an offender to think and change their ways. It is hoped that the length of the sentence and the prospect of even greater sentences if he offends again will achieve that aim.

76. Another purpose of sentencing is to let other would-be offenders know the punishment that is inflicted on those who offend against children. The more severe the punishment, it seems, sadly, the more people tend to defend such matters, but courts have to, as I have already indicated, take into account both the maximums and, where applicable, the standard non-parole periods.

77. Guevara has demonstrated, at least until he started committing these offences, that he can lead a lawful life in the community. It is hoped that, if released to parole, and subsequently he will learn from the salutary experience of years in gaol and take up what assistance is offered to him in gaol by way of sex offender courses. He must prove to the State Parole Authority and the community that it is safe to release him to the community.

78. There are courses available for offenders who deny their offending. He would be advised to engage in every program offered to him because his release to parole will be determined, not by me, or the date I fix, but by the State Parole Authority.

79. Accordingly, given his prior good character and guarded though I must be, there will, and should be, a period of time for him to be supervised in the community. I recognise the various matters raised in mitigation, particularly trauma as a child, that also require a modest finding of special circumstances. That said, the minimum term he must serve must be appropriate for the nature and seriousness of each of the offences for which he has been convicted.

80. There are a number of distinct offences here, committed against four girls. Public confidence in the administration of justice requires sentencing courts avoid any suggestion there is some sort of discount for multiple offending.

81. There will be an aggregate sentence. I am required to indicate an appropriate sentence for each offence and to structure the sentences such that the overall sentence is “just and appropriate to the totality of [Guevara's] crimes”: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 (McHugh J); Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Cahyadi v R [2007] NSWCCA 1.

82. There must be cumulation of penalty between the offences committed against each child and between the groups of offences themselves. Cumulation also reflects the period of seven years, over which this offending occurred and, of course, to allow independent recognition of the harm done to each child.

83. When considering cumulation and concurrence much depends on the discrete act of criminality. Where something followed directly on from another there can be much greater concurrence. Here perhaps, the best example of the offences is committed on June. While they are separate and distinct, there were many, many common features to them, one just continued on from the other. By contrast, while it is part of the same incident, Counts 10 and 11 involved quite different sexual acts, requiring greater cumulation.

84. I have sought, insofar as practicable, in an aggregate sentence, to reflect appropriate cumulation with some significant concurrence so far as each incident is concerned and then appropriate cumulation, as between each of the children.

85. But courts do not, when aggregating a sentence, simply add them all up one upon another. A judge, in a situation such as this, faces a number of practical problems. The simple arithmetical addition of the sentence appropriate for each offence, if considered separately, can result in a degree of punishment which is not called for in all of the circumstances. The totality principle recognises that sometimes this can lead to an unduly harsh or “crushing” sentence. That is because the severity of a sentence does not increase simply at the same rate as the length of the sentence increases. A sentence of two years has a greater impact punitively than one: R v Clinch (1994) 72 A Crim R 301 at [306], approved in MAK v R [2006] NSWCCA 381.

86. A sentence should not operate to destroy prospects of rehabilitation and reform or crush or cause an offender to feel hopeless or destroy expectation of a useless life after release. There is some prospect of rehabilitation and reform here, but what might be seen as, often the word used is ‘crushing’, really depends on the perspective of the observer, victim or offender, community or appeal court: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.

87. Parole supervision and support will be necessary. The evidence produced by the Bureau of Crime Statistics seems to indicate that the more a person is supervised and the longer they are supervised, the fewer offences they commit as opposed to those who are released unconditionally: W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497.

88. Synthesising all those matters. I have sought in this judgment to identify all of the factors that are relevant to my sentence. I have sought to discuss their significance, but ultimately, I have to make a value judgment about the penalty appropriate to each sentence to be indicated and the appropriate overall sentence, and its structure and weight and how it is divided between parole and parole period. Although the evidence was limited in scope, I have to give weight to the case made for the offender.

73. In each case, and each matter for sentence today, there is a community expectation that offenders will suffer severe punishment. A proper sentence marks the court's view of the seriousness of the crime, should let other wrongdoers know what will happen to them, the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205].

74. The sentences, individually and collectively, have to attempt to vindicate the dignity of each child complainant and to express the community's disapproval of the offending. The offender must be removed from the community for a period and that, for that limited period, removal will protect the community from him, but he must be returned to the community, and he must be returned to the community, not a worse individual but hopefully, a better individual than when he went into gaol. He will know well the retribution that will fall upon him if he commits similar offences against other children.

Orders

91. I have to indicate a sentence for each matter and where there is a standard non-parole period, a parole period:

1. Count 1 – I indicate a sentence of 1 year, non-parole period, 7 months.

2. Count 2 – I indicate a sentence of 2 years, non-parole period, 1 year, 3 months.

3. Count 3 – I indicate a sentence of 1 year, non-parole period, 7 months.

4. Count 6 – I indicate a sentence of 2 years, non-parole period, 1 year, 3 months.

5. Count 7 – I indicate a sentence of 1 year, 6 months, non-parole period, 11 months.

6. Count 8 – I indicate a sentence of 3 years, non-parole period, 1 year, 11 months.

7. Count 9 – I indicate a sentence of 3 years, non-parole period, 1 year, 11 months.

8. Count 10 – I indicate a sentence of 5 years, non-parole period, 3 years, 3 months.

9. Count 11 – I indicate a sentence of 3 years, non-parole period, 1 year, 11 months.

10. Count 12 – I indicate a sentence of 1 year, non-parole period, 7 months.

11. Count 13 – I indicate a sentence of 1 year, non-parole period, 7 months.

12. Count 14 – I indicate a sentence of 1 year, 6 months, non-parole period, 11 months.

13. Count 15 – I indicate a sentence of 3 months.

92. Those sentences, where non-parole periods are indicated, reflect a finding of special circumstances. That finding is also carried over into to the aggregate sentence.

93. The aggregate sentence in this matter will commence on 23 July 2023, backdated to take into account time in custody. The term of the sentence is 11 years' imprisonment. The non parole period is 7 years and 2 months' imprisonment which will commence on 23 July 2023, making the offender eligible for consideration for release to parole on 22 September 2030. The balance of the term of 3 years and 10 months will commence on 23 September 2030.

94. The total sentence will expire on 22 July 2034. Aggregate sentence, 11 years. Non-parole period, 7 years, 2 months. Probably eligibility date, 22 September 2030. Total sentence expires, 22 July 2034. Release to parole will be dependent upon the State Parole Authority, making a find that community safety would not be jeopardised by his release: Crimes (Administration of Sentences) Act 1999 (NSW), s135.

High Risk Offender Caution

95. Mr Guevara, the offences for which you have been convicted make you classified, according to law, as a high-risk offender. You have to be advised that if you pose a risk to the community, when you become eligible for parole or even at the expiry of your sentence, conditions, including further custody may be placed upon you. Judges are required to advise you to cooperate with Community Corrections and do everything in your power to ensure that you are not a risk when you come up for release, either at the end of your non-parole period, at the end of your sentence. If you do not you could be detained for longer or subject to additional conditions on release.

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Decision last updated: 29 October 2024