R v Idaho (a pseudonym)

[2025] NSWDC 427

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Idaho (a pseudonym) [2025] NSWDC 427

Hearing dates:

23 October 2025

Date of orders:

23 October 2025

Decision date:

23 October 2025

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

(1)   The Offender is sentenced to a term of imprisonment of 16 years, to commence 7 August 2025 and expire 6 August 2041.

(2)   The Offender will be first eligible for parole after 11 years on 6 August 2036.

(3) Pursuant to s 3C of the Child Protection (Offenders Registration) Act 2000, the Offender is to be a registrable person required to be recorded on the NSW Child Protection Register for a period of 15 years commencing from 6 August 2036, to expire 5 August 2051.

Catchwords:

CRIME — Child sex offences — Maintaining an unlawful sexual relationship with a child — Father sexually abused daughter over period of 8 or 9 years from when she was about 6 or 7 years old — No remorse or contrition — Impact on victim — Ripple effect on family — Specific and general deterrence together with protection of community

CRIMINAL PROCEDURE — Registrable Persons Order — Proper construction of amended Act — How required procedure is to be implemented in a practical way

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW) s 3C; s 3I

Crimes Act 1900 (NSW) s 66EA

Crimes (Sentencing Procedure) Act 1999 (NSW) s 24A(1)(b)

Cases Cited:

R v Fisher [2024] NSWCCA 191

Xerri v R [2021] NSWCCA 268

RA v R [2024] NSWCCA 149

Category:

Sentence

Parties:

Rex (Crown)
Mr Idaho (a pseudonym) (Offender)

Representation:

Counsel:
R Cooley (Crown)
B Royce (Offender)

Solicitors:
ODPP (Crown)
Nelson Kurucz Lawyers (Offender)

File Number(s):

2023/191422

Publication restriction:

Statutory non-publication and suppression orders made of the names of the Offender, child victim, or of any other thing that might, directly or indirectly, identify either of them.

JUDGMENT; ex tempore

Overview

1. After a 4-day hearing before myself and a jury of 12 at Penrith District Court on 15 August 2024, the jury found the Offender, guilty of one count pursuant to s 66EA of the Crimes Act 1900 (NSW). That is the jury found the Offender maintained an unlawful sexual relationship with a child. The Complainant is the Offender’s daughter and the alleged offending conduct occurred over a period of about 9 years, starting when she was about 5 or 6 years’ old.

2. The maximum penalty for an offence contrary to s 66EA is life imprisonment. It now falls to me to sentence the Offender.

3. Section 66EA is in the following terms (my emphasis):

“(1) An adult who maintains an unlawful sexual relationship with a child is guilty of an offence.

(2) An "unlawful sexual relationship" is a relationship in which an adult engages in 2 or more unlawful sexual acts with or towards a child over any period.

…

(4) In proceedings for an offence under this section, the prosecution—

a) is not required to allege the particulars of any unlawful sexual act that would be necessary if the act were charged as a separate offence, and

b) is required to allege the particulars of the period of time over which the unlawful sexual relationship existed.

(5) In order for the accused to be convicted of an offence under this section—

a) the jury must be satisfied beyond reasonable doubt that the evidence establishes that an unlawful sexual relationship existed, and

b) the jury is not required to be satisfied of the particulars of any unlawful sexual act that it would have to be satisfied of if the act were charged as a separate offence, and

c) the members of the jury are not required to agree on which unlawful sexual acts constitute the unlawful sexual relationship.”

4. The Crown case as to the “relationship” and the “unlawful sexual acts” depended almost entirely on the evidence of the Complainant. To convict, the jury must have substantially accepted her evidence. For my part, I found her to be an honest and reliable witness. The jury must have also been so satisfied.

5. In R v Fisher [2024] NSWCCA 191 (“Fisher”) there is some guidance as to fact finding by a sentencing judge following a s 66EA guilty verdict. After discussing the significant difference between the current form of the offence and the predecessor offence at [76] her Honour Rigg J adopted the observations of Price J in Xerri v R [2021] NSWCCA 268 (“Xerri”) at [97] where his Honour stated:

“Accordingly, it is unnecessary for the prosecution to identify ingredient offences’ an uncharged acts. It is the whole of the evidence of the relationship between an accused person and the child that may be put before the jury to establish that an unlawful sexual relationship existed and for an offender to be sentenced for all of an offender’s sexual misconduct whilst he maintained that unlawful sexual relationship.”

6. At [114] of Fisher, Rigg J explained further:

“Once the sentencing judge was satisfied beyond reasonable doubt of the totality of the evidence of both victims, the respondent was to be sentenced for all of it. Although his Honour was required to address the nature and extent of the offending, there was no need in this case for his Honour to determine specifically the number of discrete offences. There was no need to look for “ingredient offences”, or “representative offences” or to contrast these with “uncharged offences” or “other offences” which would have a role only in showing the ingredient offences were not isolated. There was no reason to focus on the unlawful sexual acts which corresponded with the alternative counts. Sentencing for maintaining these unlawful sexual relationships was different to sentencing for the same course of conduct had it crystallised into convictions for representative offences.”

7. Wilson J, in RA v R [2024] NSWCCA 149 (“RA”), stated pithily and consistently with earlier authority, at [101] that:

“Section 66EA criminalises the maintenance over a designated period of an unlawful sexual relationship by an adult with a child.”

8. At [102], her Honour provided the following non-exhaustive list of common features to be considered by a sentencing court when considering the gravity of a particular offence:

“(1) The length of the period over which the unlawful sexual relationship was maintained;

(2) The nature of the relationship in which the unlawful sexual acts were committed, such as a parental relationship, or that between a coach and player;

(3) Whether the relationship placed the offender in a position of authority over or trust towards the child;

(4) The age of the child at the commencement, and during the period, of the unlawful sexual relationship, and how far below 16 years of age the child was;

(5) The age differential between offender and child;

(6) The extent of the commission of unlawful sexual acts against the child above the statutory threshold of two;

(7) The frequency with which unlawful sexual acts were committed;

(8) The nature of the unlawful sexual acts that were committed within the period averred; and

(9) Where the unlawful sexual relationship existed wholly or partly before the commencement of the relevant amendments, being 2018, the maximum penalties applicable to particular unlawful sexual acts committed within the period of the relationship.”

9. The Crown has identified the key factors in this case that weigh on the objective seriousness of the offending as follows:

1. The unlawful relationship was maintained over the course of approximately nine years from on or about 10 December 2002 until 26 December 2011, which is a significant time period;

2. The offending is a significant breach and abuse of the trust and fiduciary duty that a parent owes their child;

3. The victim was about 5 to 6 years old at the commencement of the unlawful sexual relationship which is remarkably below 16 years of age;

4. There is an age gap of approximately 35 years between the Offender and the victim;

5. The complainant's evidence was that the commission of unlawful sexual acts were committed by the accused "so often that I couldn't keep count anymore". The Complainant would stay at her father's house at least every second weekend until the age of 14.

10. Consistent with Wilson J identifying a list of common features to be taken into account when considering the objective seriousness of this offence, findings must ordinarily be made on sentence as to those and any other relevant matters so as to come to a sensible view as to the objective seriousness of the offending.

11. It must follow as a matter of logic, and consistent with Wilson J’s observations, that it is necessary, therefore, on sentence, for a finding to be made as to when the first incident of sexual misconduct occurred, when the relationship ceased, how frequent the conduct was, and the general nature of the conduct itself.

12. There is no inconsistency between this approach and the observations in Fisher and Xerri to which I have referred. The legal position is the offence is proved by a finding of an unlawful relationship. Therefore, there is no need for a sentencing judge to delve below that finding to try and work out, with any sort of precision, which of the alleged incidents about which there was evidence the jury may have accepted or did not accept as if they were each individual charges.

13. However, for the purpose of sentencing, it is necessary for the sentencing judge to come to an overall view as to the general nature of the offending and its frequency, together with roughly when it started and finished.

14. In the trial, the Crown particularised four specific instances. Each was also relied on individually as proof of “back up” charges. The first was a time when the Complainant was very young, probably about five years old, which involved the Offender lying behind the Complainant whilst rubbing his erect penis into the rear of her body.

15. The three other instances were specific and more serious allegations of sexual assault involving the Offender touching the Complainant’s vagina, masturbating in front of her, and putting the Complainant’s hand on his penis so as to masturbate it.

16. The Complainant also gave evidence of unlawful sexual acts being committed upon her by the Offender “so often that I couldn't keep count anymore." The clear impression from her evidence was that, for a significantly lengthy period of about 9 years, at least every second weekend, the Offender sexually mistreated her in an unlawful way. On behalf of the Offender, it is submitted that this evidence in context was limited to acts of touching the Complainant’s vagina. I reject that submission but, even if it be correct, do not understand how that could assist the Offender.

17. As I have said, I found the Complainant to be a compelling, in the sense of honest and reliable, witness. However, if it was me determining the question, I did have some considerable doubt as to the reliability of her evidence as to the first specific incident relied upon by the Crown. She was remembering events from long ago when she was very young overlaid by her memory of many similar instances over subsequent time.

18. I am satisfied beyond reasonable doubt as to the other three incidents and I also am satisfied beyond reasonable doubt that there were many other similar instances that occurred on a regular basis over a period of many years.

19. For the purpose of determining the length of the relationship, I am satisfied that it commenced sometime around when the Complainant was six or seven years old and continued thereafter for eight or nine years, which is substantially in line with the submissions of the Crown.

20. As to the frequency of unlawful sexual acts, I am satisfied beyond reasonable doubt that they occurred roughly every two weeks, and as to the nature of the conduct, I am satisfied beyond reasonable doubt that they each involved similar conduct to that described by the Crown as to the last three of the four specific acts.

21. I am also satisfied that the statutory aggravating factor of the offence being committed in the Complainant’s home is engaged. In substance, the premises were her home, although she spent more time at another address.

Objective seriousness of the offending

22. The Crown submits that, relevant to the assessment of the Offender’s moral culpability is his motive. It is clear that his motive was perverted sexual gratification. The Offender contents this is an inherent feature of this type of offending and is one of the many reasons for the maximum penalty being life imprisonment. I accept that submission. However, all that means is that this type of offending is rightly regarded as very serious criminal conduct.

23. Taking into account the indicia identified by Wilson J in RA, I consider the offending to be a very serious example of this type of offence. The conduct was between a father and a daughter and thus a gross breach of trust. The unlawful relationship continued over a period of nearly a decade, commencing when the Complainant was extremely young, and was so consistent that it became almost commonplace and was a part of their relationship. The nature of the specific events could have been worse in the sense that there was no penetration or ejaculation involved, but that is not to minimise their seriousness.

24. The offending carries a maximum penalty of life imprisonment. This stands as a stark reminder of the community’s, through Parliament, position that conduct of this type is entirely unacceptable, reprehensible, and extremely serious criminality. It is difficult to find words appropriate to capture the depraved nature of conduct where a father repeatedly and systematically sexually abuses his own daughter.

25. Any judgment as to objective seriousness of a particular unlawful sexual relationship suggesting that the criminality is not towards most serious it might be ought not be taken, and cannot be taken, as some acceptance that what is involved here is not extremely serious criminality.

26. That all being said, I proceed upon the basis that the objective seriousness is high, well above the middle of some sort of notional scale but is not in the category of the most serious examples of this type of offending.

Aggravating/Mitigating factors

27. The Offender has a reasonably substantial criminal record, mostly involving drug offences. However, in 2014, the Offender was convicted of stalk/intimidate, intend fear physical harm and was sentenced to a two-year good behaviour bond.

28. In 2022, the Offender was again convicted of stalk/intimidate intend fear physical harm and the use of a carriage service to menace, harass, or offend. He was placed on a Community Corrections Order for 12 months. In 2023, he was called up for breach of that bond and for contravention of an Apprehended Violence Order and was sentenced to an aggregate period of imprisonment of eight months, expiring 4 August 2024.

29. I am not here punishing the Offender for any of his previous criminal activity. However, it is clear that his past history of criminality disentitles him to leniency. It also does not bode well to his prospects of rehabilitation.

30. Because of the recent amendments to the Child Protection (Offenders Registration) Act 2000 (NSW), to which I will come, it is mandatory for the Offender to become a registrable person under that Act as a consequence of this offence. This is not a mitigating factor under s 24A(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

31. As I have said, the offending occurred in the home of the Complainant.

The Offender’s subjective case

32. The Offender is 63 years’ old.

33. He has a relatively good work history and purchased his own home in 1995.

34. As I have said, he has a criminal history which does include some sexual misconduct. This was the 2022 offence, which involved him repeatedly sending sexually explicit material over Facebook to a 16-year-old girl.

35. The Offender continues to deny the offending and contends that his son has manipulated his daughter into making false allegations. In the context of the evidence in the trial, this makes little sense. For many years after the Complainant complained to her brother, he did not believe her and stood by his father, and they became estranged. It was only in recent times that he came to accept her.

36. The Offender has an acquired brain injury from injuries he sustained in a motor vehicle accident when he was a teenager.

37. A Sentencing Assessment Report identifies his risk of reoffending as medium. My own view is that, whilst he is dangerous and would reoffend if given the opportunity, he is unlikely to have opportunity in the future. Nonetheless, there is a real need here for specific deterrence and protection of the community.

38. Because he continues to deny any wrongdoing, which is his right, he has shown no remorse or contrition. Unless he acknowledges what he has done and why it is wrong, it is my view that he has very little prospect of rehabilitation.

Victim Impact

39. It is well understood that the Complainant will inevitably have suffered and will continue to suffer profound consequences as a result of the offending. The breach of trust by her father is unfathomable. Moreover, the conduct caused for many years a breakdown in her relationship with her brother, who she loves. I had the opportunity to observe her giving evidence. She is a brave and very impressive young woman, but there were times in her evidence when she had a visceral reaction to photographs of her childhood home. I am satisfied that there has been profound and ongoing trauma suffered by her, and she will continue to suffer, possibly for the rest of her life. Moreover, the ripple effect on her siblings, especially her brother cannot be ignored as are the likely generational consequences.

Resolution

40. Taking into account the serious objective circumstances that make up the offending, the fact that the offence carries a maximum penalty of life imprisonment, the clear impact on the Complainant, which undoubtedly will be with her for her life, the lack of any contrition, remorse, and/or insight by the Offender, and what I consider to be a very significant need for both specific and general deterrence, together with the need to protect the community from the Offender who has little prospects of being rehabilitated, I consider a sentence of imprisonment of 16 years to be appropriate.

Special circumstances

41. I then turn to the question of the minimum non-parole period. The Offender is 63 years’ old. He will struggle in gaol. Whilst he does not accept any wrongdoing at this stage, it is possible that will change. He will need assistance to reintegrate into the community upon his release and for those reasons I find special circumstances and will adjust the usual proportion slightly in the Offender’s favour. The Offender will be first eligible for parole after serving 11 years in custody.

Time in custody

42. The Offender has spent 77 days in custody solely referable to this offence and the sentence will be backdated so as to commence 77 days ago to give him the benefit of that period already served.

Orders

43. For those reasons, my orders are as follows:

1. For Count 1, the Offender is sentenced to a term of imprisonment of 16 years, to commence 7 August 2025 and expire 6 August 2041.

2. The Offender will be first eligible for parole after 11 years on 6 August 2036.

3. Pursuant to s 3C of the Child Protection (Offenders Registration) Act 2000, the Offender is to be a registrable person required to be recorded on the NSW Child Protection Register for a period of 15 years commencing from 6 August 2036, to expire 5 August 2051.

4. Direct the Court Registry to provide a copy of the Registrable Person Order and Form 3 Document to Corrective Services and direct Corrective Services to then provide a copy of the Registrable Person Order and the Form 3 document to the Offender.

5. Direct the Court Registry to provide a copy of the Registrable Person Order and the Form 3 document to the NSW Commissioner of Police and to the supervising authority of the Offender.

1. A non-publication and suppression order is in place in relation to the names of the Offender, child victim, or of any other thing that might, directly or indirectly, identify either of them.

Child Protection (Offenders Registration) Amendment Act 2024 (NSW) – The proper construction of the amended Act – How is it to be implemented?

44. The Child Protection (Offenders Registration) Amendment Act 2024 (NSW) came into effect on 29 September 2025. This Act made significant amendments to the Child Protection (Offenders Registration) Act 2000 (NSW).

45. Relevant to this case, s 3C, as amended, requires a sentencing court to make a registrable person order in respect of people sentenced for a registrable offence on or after 29 September 2025. Section 3-I requires that the Court's order must specify a reporting period calculated in accordance with s 3-I depending on the class of registrable offences for which a person is sentenced and other matters.

46. Here, the offence was committed prior to 29 September 2025 and was a registrable offence prior to the commencing of the amending Act. It follows that, the Offender having been found guilty and a sentence having being passed, I must make a registrable person order against the Offender, as it is a class 1 offence. Section 3-I provides that, it being a class 1 offence, the reporting period must be fifteen years.

47. For that reason, I have made such an order specifying a period of 15 years to commence on the first day the Offender becomes eligible for parole.

48. Section 3J is in the following terms (my emphasis):

3J Notice requirements

(1) This section applies to a court that makes a registrable person order or child protection registration order in relation to a person.

(2) The court must—

(a) arrange for the following to be given to the person, including if the person is not physically present in the court—

(i) a copy of the order,

(ii) written notice of—

(A) the person’s reporting obligations, and

(B) the consequences of failing to comply with the person’s reporting obligations, and

(b) verbally explain the matters specified in subparagraph (a)(ii) to the person in language the person is able to readily understand.

(3) The notice referred to in subsection (2)(a)(ii) must comply with the requirements of the regulations in relation to the form of the notice.

(4) The court may require the person—

(a) to remain in court or otherwise on the court premises until subsection (2) is complied with, or

(b) to collect the copy of the order and the written notice required under subsection (2)(a) from the court registry or another place on the court premises before leaving the premises.

(5) A registrable person order or child protection registration order is not invalidated by a failure to comply with subsection (2)(b).

(6) The regulations may make provision about the arrangements for giving the person a copy of the order or written notice under subsection (2)(a) if the person is not physically present in the court when the order is made.

Example—

a person attending court by audio visual link

(7) As soon as practicable after the order is made, the court must give a copy of the order to—

(a) the Commissioner of Police, and

(b) the supervising authority for the person.

49. There is a difficult question as to what s 3J actually requires the Court to do in circumstances where the offender is in custody and present in the court room at the time the order is made. The position, however, is clear enough when, as here, the Offender is present in Court via an audio-visual link.

50. Dealing first with subs (2), the provision is mandatory and applies in circumstances “including" when a person is not physically present in the court.

51. Ordinarily, the word “including" is not a word of limitation but is rather a word directing an expanded meaning. In other words, as a matter of construction the use of the word “including” does not necessarily mean that subs (2) does not apply to circumstances where the person is physically present in the court room.

52. Whilst it is possible to verbally explain the relevant matters to an offender who is not physically present in the courtroom but rather is “present” by audio visual link or telephone, it is not possible to actually give a copy of the order and the relevant written notice to the person whilst they are in court. So, the primary purpose of subs (2) in requiring the Court, in those circumstances, is to “arrange” the provision of documents is clear.

53. There is a form of order prescribed, and the Registry of the Court is able to generate such a form (Form 3). It also has a significant amount of information contained as part of the form as to the requirements of the order and a space for an offender to acknowledge that the notice has been provided and that they will attend a police station within five days of release.

54. There is also a document called a “Results Sheet” used by the Court. I am told there is another form of order which is administratively produced by the Court Registry once the orders are entered into the JusticeLink system. There is also the “Form 3” document which notifies the Offender of much information. The form of this document is mandated by the legislation. All this paperwork, in a practical sense, will take some time to prepare. There is a limited number of Court staff authorised to check and issue those documents. A Judge of the Court is not one of those people.

55. It seems to me that the legislation, whilst awkwardly drafted, has an obvious purpose and intent. That is there is a requirement for the Court to verbally explain matters to a person and to do what it can to make sure that such a person receives a copy of the order and written notice of it in the form of the “Form 3” document.

56. If the person is not physically present in court, but is rather attending by AVL, the Court must arrange by whatever means seems most appropriate for the person to be given a copy of the documents.

57. I propose to satisfy the requirements of the Act by verbally explaining to the Offender’s his reporting obligations as required by s 3J(2)(b) and then direct the Registry to provide the formal documentation to Corrective Services, so that Corrective Services can then provide that form of the order and other written information to the Offender. I will now provide the Offender my verbal explanation so as to comply with s 3J(2)(b).

Registrable Persons Order – reporting obligations

58. I have made a registrable person order under the CP(OR) Act, making you a person required to be recorded on the NSW Child Protection Register for a period of 15 years commencing from 6 August 2035. The end date of the reporting period may be automatically extended for a number of reasons, including if at any time you are in custody.

59. You will be subject to reporting obligations throughout your reporting period, under which you will have an ongoing obligation to make reports of particular information to police within a particular time period.

60. A written notice of your reporting obligations will be provided to you to sign, acknowledging that you have been notified of your various reporting obligations. You should read the document carefully and seek legal advice if you do not understand it. It is very important that you clearly understand your obligations.

61. Your reporting obligations include that you will need to make an initial report to a police station, attending in person with identification documents, within 5 days after your release from custody or otherwise after the date of sentence. You must complete an initial personal information report, providing various personal information, including with respect to your address, tattoos or identifying marks, your work, your club or organisation affiliations, vehicles you use, your use of communication devices and communications services, any prior criminal record or time in custody in NSW or elsewhere, your passport details, any travel outside NSW and any contact or residence with a child.

62. Throughout your reporting period you must then further report in person to a police station within a specified period of time if there are any changes to relevant reportable circumstances. You must also report in person to a police station to complete an annual report each year.

63. You must also report information to police with respect to any intended international travel, or travel within Australia outside NSW, and after returning to NSW.

64. During the reporting period, you may also, without notice, be subject to checks by police to ascertain if you are complying with your reporting obligations. Under s 16C of the CP(OR) Act, police hold powers to enter properties or vehicles to conduct these checks and may require you to cooperate in police gaining access to data held in any electronic devices.

65. Sections 17 and 18 of the CP(OR) Act provide for offences of failing, without reasonable excuse, to comply with reporting obligations, or of furnishing false or misleading information in connection with complying with reporting obligations. Such offences are punishable by imprisonment of up to 5 years or a fine of $50,000, or both.

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Amendments

24 October 2025 - Fixed Case name

27 October 2025 - Amended [30].

Decision last updated: 27 October 2025