R v Jarvis (a pseudonym)

[2020] NSWDC 396

District Court

New South Wales

Medium Neutral Citation:

R v Jarvis (a pseudonym) [2020] NSWDC 396

Hearing dates:

8 April 2020

Decision date:

08 April 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 9 years 9 months. Non parole period of 5 years 5 months.

Catchwords:

CRIME - Persistent sexual abuse of a child.

SENTENCE - Relevant factors on sentence –stepfather- escalating abuse – admissions - early guilty plea - change of law and increase in maximum penalty during course of crime - impact of abuse - delay – remorse - victim acknowledges admissions as aiding her recovery - older offender - COVID 19 - not eligible for early release - special circumstances.

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Court Suppression and Non-publication Orders Act 2010

Crimes (Administration of Sentences) Act1999

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Sentencing Act 1989 (now repealed)

Cases Cited:

Brown v R [2020] VSC 60

Eacott (a pseudonym) v R [2019] NSWCCA 158

IS v R [2011] NSWCCA 142

Markarian v The Queen (2005) 228 CLR 357

Mill v The Queen (1988) 166 CLR 59

MJR v R [2002] NSWCCA 129

R v Cattell [2019] NSWCCA 297

R v DR [2018] NSWDC 405

R v Maclay (1990) 19 NSWLR 112

R v Todd [1982] 2 NSWLR 517

Ryanv The Queen (2001) 206 CLR 267

Siganto v The Queen (1998) 194 CLR 656

The Queen v Pham [2015] HCA 39: (2015) 256 CLR 550

Thompson (2000) 49 NSWLR 383; (2000) 115 A Crim R 104

Weininger v The Queen (2003) 212 CLR 629

Category:

Sentence

Parties:

William Jarvis (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr A Moutasallem (for the offender)
Mr D Coulton, Solicitor Advocate (for Director of Public Prosecutions)

Solicitors:
DGB Lawyers (for the offender)

File Number(s):

2019/00131902

Publication restriction:

1. Non-publication order relating to any information, picture or other material that identifies or is likely to lead to the identification of the child victim, including the identity of the offender: s578A Crimes Act 1900; S15A Children (Criminal Proceedings) Act 1987.
2. Suppression order in respect of offender and complainant. The Offender and complainant will be referred to by a pseudonym: s 7 Court Suppression and Non-publication Orders Act 2010.

SENTENCE – EX TEMPORE REVISED

1. On 29 April 2019 William Jarvis, a pseudonym for the offender, was arrested and after proper charge negotiation procedures accepted his guilt in relation to an offence that as an adult he maintained an unlawful relationship with a child; s 66EA Crimes Act 1900. Jarvis must have the benefit of a 25%reduction of the otherwise applicable sentence to reflect the utilitarian value of that early guilty plea; s 25D Crimes (Sentencing Procedure) Act 1999.

Agreed facts

2. There are agreed facts before the Court. I have read them a number of times. I will not be reading them onto the record. Rather I will set out the short form description of the offences provided to me removing, so far as is practicable, prurient details.

3. The offender was born in 1948. The complainant Ms Kelly, a pseudonym, was born in 1986. The offender had formed a relationship with Ms Kelly’s mother; he was her stepfather. Ms Kelly was born in Wollongong. She was born with spina bifida occulta and through her entire life has suffered constant back pain and other disabilities. To help her deal with this problem she took up dance and for many years continued with that activity. Ms Kelly has a brother. Her natural parents separated and by the time she was 12 there was no contact with the biological father. Her mother’s relationship with the offender provided her with a father, a stepfather.

4. When Ms Kelly was about ten the family moved to a house in a suburb of Wollongong; it was an ordinary suburban house. She and her brother would generally shower off the main bedroom. She noticed that at times the offender would look towards her while she was in the shower. She describes him as an affectionate man who would massage her feet, generally in the presence of her mother. But things changed in August 1997 when he began entering her bedroom at night, waking her and touching her.

5. The particulars set out in the agreed facts note that between 1 August 1997 and 21 March 2012 the offender engaged in the following unlawful sexual acts:

1. The offender kissed the complainant across her cheeks and on her neck in her bedroom at night.

2. He touched the complainant’s breasts by placing his hand underneath her pyjama top in her bedroom. This occurred two to three times a week for about 20 minutes on each occasion.

3. The offender rubbed the complainant on the outside of her underwear, on top of her vagina, near her bum area.

4. The offender from 1998 onwards touched the complainant on her vagina, inside her underwear. This occurred two to three times per week.

5. The offender from 1999 onwards touched the complainant underneath her underwear and on her breasts, the offender making the complainant grab his penis.

6. The offender rubbed his erect penis on the complainant’s stomach and vagina.

7. The offender touched the complainant’s vagina, breasts and body when they were at home alone together during the day.

8. The offender removed the complainant’s pants and underwear, lying on top of the complainant pushed his erect penis against the vagina, but not putting it inside.

9. The offender digitally penetrated the complainant’s vagina three or four times.

6. The complainant says that at the time she felt scared and did not know what to do. She says that she started wearing two pairs of underwear everywhere, including in bed. She says when she was 12 she would bring her dog into the bedroom, but the offender would take the dog outside. She says that on many occasions up until when she was about 14 the offender would take any opportunity to touch her; he would say that he loved her and told her that she would enjoy what he was doing. She noticed, increasingly as she got older, that he would be naked with her, particularly during acts of simulated or actual sexual intercourse. These acts would take place when her mother was not present. The sound of her mother returning into the home, via the garage, would generally give them enough time to dress.

7. The acts of intercourse took place on three or four occasions towards the end of this activity.

8. By the time she was 15 or 16 she would avoid being with the offender. By the time she was 17 or 18 she moved to her grandparents’ house. Although she had contact with the offender and he would drive her to events, as he did the other child, he no longer abused her although he was still affectionate towards her. She says that she was scared of his temper, his behaviour, and that she did not want to confront him; she did not want to say anything to him.

9. Ms Kelly first disclosed the offences to her mother in 2013; after her mother and the offender had separated. The disclosures led to a police investigation. A surveillance device warrant was executed. On 26 April 2019 the complainant called the offender; that conversation was recorded. During the conversation the offender made admissions, he said that he was “not planning on doing it.” He put forward some excuses, but it is important to note he did say, “I apologise and if I could change anything I would. I’ve been waiting for this phone call for ages. Listen, not a day goes past that I don’t think about what we did in a, in a not good way”. He accepted that it should not have happened, he said, “I didn’t have any idea how to, how to, just stop it. It was, it was a bit addictive actually”.

10. He was arrested. He made admissions during his interview with police on 29 April 2019. He accepted it would have been for sexual gratification and that he knew what he was doing was wrong at the time. He told police he became infatuated with the victim as she coming into her sexuality and that he found her attractive. He put forward some other explanations for the escalation of his offending behaviour.

Objective seriousness

11. There is an absolute prohibition on any sexual activity with a child. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual exploitation of a child is serious and is treated seriously by the Court. The guidance offered by the maximum penalties makes that clear.

12. A s 66EA Crimes Act offence involves the accumulation of various crimes committed against the complainant. The offences occurred between 1997 and March 2002. Many of the incidents over those years are not particularised, but those that are show the course of conduct carried out against the complainant by the offender. Using s 66EA was entirely appropriate and was accepted by the defence. It is axiomatic from the use of this section that the offence involves a series of criminal acts and, as with most aspects of s 21A of the Crimes (Sentencing Procedure) Act 1999. Courts have to be careful not to double count matters, for instance s 21A(2)(m). When I review the written submissions care must also be taken not to double count matters set out in s 21A that relate to the objective seriousness of the offending. The number of occasions and the time period over which they occurred is a relevant consideration.

13. Every sentence must ultimately be appropriate and proportional to the gravity of the crime considered in the light of all its subjective circumstances. There is no hierarchy of the seriousness of matters, particularly matters involving sexual intercourse. But, here it is important to note that predominantly the offences committed were indecent assaults of escalating seriousness. The acts of sexual intercourse were the least frequent of the matters particularised. They involved digital penetration which, while of itself serious, does not in all the circumstances here acquaint with penile/vaginal intercourse, if only because of the physical nature of the acts here and the absence of aggravating factors such as the risk of pregnancy and disease.

14. When a criminal act involves touching and actions falling just short of actual sexual intercourse each must be considered individually and, because this is a s 66EA matter, collectively.

15. Important factors here include:

1. the actual character of the acts involved and the degree of physical contact involved,

2. the age of the child,

3. that while every child is vulnerable, and this is inherent in the section, the complainant here was additionally vulnerable because of her spina bifida occulta and the constant pain and psychological stresses she suffered in coping with that pain and other aspects of her disability; a disability that would have been well known to the offender.

4. additionally, it is important to take into account the age difference between the perpetrator and the child,

5. the times over which the acts occurred.

6. the nature of the harm suffered, predominantly here psychological harm.

7. the absence of any physical complaint of pain or physical injury. I will have more to say about the question of psychological harm in a moment.

8. the escalation of the intrusiveness of the acts

9. the acts occurred in the family home, where the child was entitled to feel safe and secure.

10. finally, perhaps most importantly in a matter such as this, the relationship that existed between the child and the offender is an important factor.

16. Stepfathers are expected to protect and nurture, not abuse children in their care. A stepfather is in a particular position of trust and that trust was breached. The child complainant was in a position where she was expected to obey and accept direction from the offender. She was in no real position to do anything else other than submit to his advances. A child in her home in such situations is virtually helpless by someone who exercises parental authority over every aspect of her life.

17. I accept, as Mr Moutasallem for the offender, points out, that there is an absence of aggravating features often found in matters involving indecent and sexual assaults against children in the care of an adult. I accept that the matters of actual sexual intercourse were infrequent and only occasioned at the end. The Court must however take into account the course of conduct, the frequency of the conduct and the all-pervading nature of his offending against this child on what could be regarded as almost a weekly basis.

18. Both counsel accept that were I to try and apportion some range to this matter that it falls below the middle of the range of objective seriousness. I do not believe that I need to make such a finding, but the concession is one that is properly made. I do not have to compare this offence with some other notional offence, but I have to make an appropriate assessment of objective seriousness, which will ultimately be reflected in the penalty imposed.

Maximum penalty

19. The offence pleaded to, s 66EA Crimes Act, was amended in 2018. The term of the section pleaded to this under the heading “Persistent sexual abuse of a child”. The section reads

“An adult who maintains an unlawful sexual relationship with a child is guilty of an offence, maximum penalty imprisonment for life”.

20. Prior to amendment the earlier provision had, since early 1999, read,

“1. A person who on three or more separate occasions occurring on separate days during any period engages in conduct in relation to a particular child that constitutes a sexual offence is liable to penal servitude for 25 years”.

21. In written and oral submissions Mr Moutasallem submits that I must give proper effect to s 19 Crimes (Sentencing Procedure) Act 1999 and sentence this offender on the basis that the maximum penalty is 25 years imprisonment. Section 19 states, relevantly,

“(1). If an act increases the penalty for an offence, the increased penalty applies only to offences committed after the commencement of the provision of the Act increasing the penalty.”

That section reflects a common law rule of some standing. The relevant authorities are set out in Mr Moutasallem’s written submissions and I am very familiar with them.

22. Reference was made to MJR v R [2002] NSWCCA 129. Mr Moutasallem’s submission made reference to the previous provisions which could have applied to the facts here. He said that had the offender been arrested any time between 1999 and 2018, s 19 meant that the maximum penalty for his offending would have been 25 years and not life.

23. Reference was also made to Siganto v The Queen (1998) 194 CLR 656, at [17]. The High Court were there reviewing Northern Territory legislation. The Act was intended to apply to offenders being sentenced for offences committed before the commencement of the Act. Giving effect to that intention produces the result that people who had previously offended, but had not yet been sentenced, would be treated differently from people who had previously offended and had been sentenced.

24. Mr Coulton submits that any common law presumption against retrospectivity does not apply as the new s 66EA is explicitly retrospective.

25. The section to which the offender pleaded guilty, and was adhered to today, criminalises maintaining an unlawful sexual relationship. That section applies today in its terms. In MJR the Court, at 26, noted:

“It is, of course, clear in the context of statutory interpretation that where Parliament manifests an intention that a new sentencing regime operate retrospectively, the courts will give effect to that intention. It may also be the case that the purpose to be served by a change in sentencing practice would require the Court to take into account the new practice even when sentencing for an offence that occurred many years before”.

26. This sentence and its available maximum of life does not create an inequality before the law. The new and higher maximum penalty is a consequence of a change in the law. The circumstances which, in any given case where an offender comes under the new regime could vary greatly.

27. In submission reference was made to R v Maclay (1990) 19 NSWLR 112. Maclay was a case that involved the abolition of remissions following the introduction of the Sentencing Act 1989 (now repealed). There the Court said, “The primary task of the sentencing judge is to apply the new sentencing system according to the terms of the section, paying due deference to established general principles of sentencing”.

28. Section 66EA(7) provides:

This section extends to a relationship that existed wholly or partly before the commencement of the relevant amendments, or the predecessor offence, if the acts engaged in by the accused were unlawful sexual acts during the period in which the relationship existed.

29. Accordingly, Parliament, in 2018, intended that the section have retrospective effect. I am reinforced in that opinion by s 66EA (8) which notes that I must take into account the maximum penalty for the unlawful sexual acts engaged in by the accused during the period in which the unlawful sexual relationship existed. This reflects what is set out in s 19 Crimes (Sentencing Procedure) Act.

30. Accordingly, I propose to sentence the offender on the basis that the maximum penalty is life imprisonment. That said, it is important to note here that appropriate concessions have been made by the Crown and that the resolution of that legal issue is, in many senses, academic because I intend to give full weight to s 66EA(8) and due deference to established principles relating to fairness and proper reliance on the maximum penalties then applying, the substance of which informs s 19.

31. Although important guides, the maximum penalty here does not override a proper consideration of the objective seriousness of the offence. The maximum penalty requires careful attention, but it is only one sentencing measure to be balanced with all the other relevant factors. Greater focus should be on the comparison between the instant case and other cases. But, as the High Court made clear in Markarian v The Queen (2005) 228 CLR 357, it is not appropriate to look first to the maximum penalty and then make some proportional deductions from it.

32. Accordingly, although Mr Moutasallem submitted maximum penalty was a significant factor, in the light of all the material before me my focus must be upon what was done by the offender and appropriate comparisons. Ultimately I do not believe that whatever maximum penalty applied the difference between 25 years and life would not have had any significant influence on the sentence that I intend to impose. Greater reliance must, however, be placed upon s 25A(1) and (3) Crimes (Sentencing Procedure) Act, and the sentencing patterns to which I will later refer.

Victim Impact Statement

33. A Victim Impact Statement was received on behalf of the complainant. It sets out the personal harm suffered by her as a direct result of the offending: s 26 Crimes (Sentencing Procedure) Act 1999. The Victim Impact Statement attests to a harm of the kind that might well have been expected by the Court and should have been expected by the offender. Exact psychiatric diagnoses are not required. There is little difficulty with acceptance of its content, it was in keeping with the expectations and the common experience, unfortunate though that may be, of this Court.

34. Without going into all the details of the statement, which was read by the complainant, it is important that I refer to some salient features of it.

35. Ms Kelly told me how she is still learning the ways the abuse has affected her, the experience of keeping silent for over 19 years, but relieving the nights when she was abused, have had a constant and continuing impact on her. She notes the various difficulties she had had discussing sexual matters with medical practitioners or her husband. She speaks of the problems she had waking in the night and going over what had occurred. She spoke of the compulsive tendencies that she had developed and her anxiety, particularly in social situations. She spoke of her state of heightened alertness and protectiveness so far as children are concerned. At other times she told me that she just felt numb. Told me how she struggled at high school making friends and becoming close to people. She spoke of the many things that cause her to flash back to what occurred to her, and the strain that the secret she was hiding and keeping with her placed on her relationships.

33. She spoke of problems relating to being in Wollongong. She is in conflict as she has both positive memories but also being here means she goes back to the negative things that occurred. She spoke of regaining a sense of control as she told her story, first to the police and then in preparation for the matter for court and in the preparation of the document that was read today. She says, “I have come through stronger and a survivor. No longer a victim, no longer that poor girl in the bedroom, frozen and scared, wondering what will happen next.”

34. If it is any consolation, my experience of dealing with victims of crime in such matters over many decades is that the sooner someone can put these matters behind them, turn down the volume and focus on a future the greater the chances of recovery. I am sure that the complainant will get as much assistance as can be provided to ensure that happens. And I accept, as I will refer to later, that the conclusion of this matter as promptly as possible has assisted in that recovery process.

35. The effects of child sexual abuse depend on many factors, but the frequency and number of events, duration of the abuse experience and the relationship between the child and the perpetrator all tend to exacerbate negative symptoms. Each case will vary, but the Court accepts that the complainant in such matters will suffer significant harm and that is tragically associated with the nature of the offending and one reason for the high maximum penalties. It is not of itself an additional circumstance of aggravation.

36. The social dynamics and impacts of child sexual abuse are now better known by the Courts and, one would hope, by the community. It is a sad but tragic fact that these events still occur.

Delay

40. In some sexual assault cases an offender should not, and does not, benefit from the delay in the revelation of and reporting the offences. These factors were explored by the Court of Criminal Appeal in R v Cattell [2019] NSWCCA 297; but each case and every offender is individual. There is no general principal as to the operation of leniency arising from delay.

41. Here, the very nature of the offending and the relationship between the offender and the complainant made her reluctant to come forward and complain. Studies put before the recent Royal Commission show it is not uncommon for abuse to remain undisclosed for many years, in fact, delay is very common. On the other hand the offender ceased offending in 2002; he did not persist in his abuse of the complainant and has not, so far as the Court is aware, committed any crime since or before the commencement of these offences.

42. Sentencing for stale crimes, long after the commission of the offences, calls for a considerable measure of understanding and flexibility; R v Todd [1982] 2 NSWLR 517 at 519; Mill v The Queen (1988) 166 CLR 59, at [14]. Offenders in any case are entitled to have evaluated in their favour any factors deriving from their conduct that reflects to their advantage. The delay here has operated to the offender’s advantage by providing him with an opportunity to demonstrate his capacity for rehabilitation by not reoffending.

Case for the offender

43. Jarvis gave evidence from Long Bay Gaol. He is subject to the protection regime – he is classified for limited association. He told me he has had no visits since the lockdown following the COVID-19 crisis. He told me that so far as contact with family is concerned he has been effectively “wiped” by his grandchildren, which means he has no contact with his great grandchildren. Other family members have ceased contact with him.

44. He is now 71. He is of an age where he will be increasingly vulnerable, more so as he ages. Most of his opportunity to lead an active life as an elderly person and as a working Australian have been taken from him by his incarceration, that is only proper, but I take into account that much of the active life remaining to him will be spent in custody.

45. There is evidence that he grew up in a close family. His parents died in a motor vehicle accident in 1969. Since leaving school, with a leaving certificate, he has worked continuously. He has worked, and continues to work, as a sweeper in the gaol, cleaning that facility. As an adult he was involved in amateur theatre, a respected community activity.

46. His limited association classification will mean that he is locked down more often and will have less access to programs but, presuming programs will resume post COVID-19, he will have some access to them.

47. He has had four significant relationships during his life. He has one son. The third of his relationships was with the complainant’s mother. He formed a fourth relationship in 2016. His partner wrote a letter to the Court. She told me how shocked she was by the revelation of his offending. She said she had no idea and perceived nothing in her relationship with the offender that gave her any hint that he had offended at all, particularly in this type of crime. Prior to CV-19 she visited him regularly. It is important for any prisoner that they maintain contact with prosocial members of the community. The restriction on actual visits is a matter that I can and should take into account.

48. In her reference she speaks of his kindness and generosity and how out of character his crimes seem. Through her he expresses his sorrow and sadness at the crime he committed and the harm he inflicted, which she said is tearful and heartfelt.

49. A neighbour also wrote a reference. He spoke of the trust he placed in the offender and the respect he had for him.

50. The offender wrote a letter to me and reinforced what was said by his evidence today. Obviously he accepts that it is too little, too late and he cannot restore the harm that he occasioned 20 years ago.

51. He has had the benefit of 20 years of active life in the community as a respected member of the community, and of a reputation he did not deserve. His complainant carried the burden and will carry the burden herself and now, at least, following disclosure, with assistance, for the rest of her life.

52. Dr Woods provided a helpful and professional report. He did not in any way attempt to parrot an exculpatory version, to the contrary. The conclusions Dr Woods reaches are not controversial and can be accepted. He speaks of the offender having minimal insight into why he committed the offence, but recounts considerable insight now into the impact his offence must have had, and has had, on the complainant.

53. Dr Woods notes in his professional opinion the offender has a personality disorder and a paedophilic or hebephilic disorder which he believes to be exclusive, that is, exclusive to the complainant in this matter. He said the offender will need to engage in sex offender programs. I would recommend that he does so and that there be provision of those programs to him.

54. A comprehensive risk assessment was provided using interview techniques. Dr Woods helpfully preferred not to use other inventories where an automatic score would be low. When he made his assessments he found that the risk of further offending, given that the offender is amenable to treatment and a number of protective factors assist, is still low. I note his conclusions at paragraph 24: exhibit 1.

Remorse

55. Remorse is a relevant consideration here. The offender accepts that while the complainant was living with the impact of his offending while he was “living a lie”. He tells me that he had no idea of the consequences to her. He said he was so sorry and devastated at the impact of his offending when he was made aware of the impact of his offending.

56. The bare fact of the plea is itself an expression of remorse. Much greater weight, however, needs to be accorded to statements which confirm a position of genuine and deep felt contrition; Thompson (2000) 49 NSWLR 383; (2000) 115 A Crim R 104, at [118]. At [3] the Chief Justice made the point that early pleas of guilty are of particular importance in matter such as this.

57. While the evidence and sentiments expressed in the letter are easy to make and hard to test I am prepared to accept that, despite the professional opinion about limited insight, the offender has done as much as he is capable of doing to express, both by his words and, more importantly, his actions, appropriate remorse.

58. It is also important that I acknowledge that his actions, admittedly 20 years too late, have attracted the compassion, perhaps undeserved, but the compassion nevertheless of his victim. She says, “I thank William” the offender “for acknowledging the abuse during the phone call and also throughout this process, that was definitely a step towards trying to heal, finding my voice and being stronger than I ever thought possible”.

Record

59. The offender has no other relevant criminal convictions; the matters on his record can, and should be, ignored. But obviously if the truth of what he was doing was known by his then partner, the truth about what he was doing with the complainant, he would not have had the opportunity to commit the offences. Any good character he had was lost in 1997, the first day he went into the complainant’s bedroom and started offending against her.

COVID-19

60. The present crisis will increase apprehension by prisoners about infections in gaol, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This simply cannot happen in a gaol despite the best measures, some of which I referred to during the course of the hearing, being taken by Community Corrections. Social visits have been suspended for an indefinite period although access to telephone calls has been increased.

61. Prisoners are personally unable to implement social distancing to any great effect; they are completely reliant on the authorities who have complete control over their lives. These concerns and considerations apply to every prisoner sentenced and for sentence.

62. I am sentencing this offender today based on current knowledge of CV‑19 and the responses to the crisis advised by Corrective Services New South Wales.

63. If, but or when, CV-19 enters gaols early parole may be given to some prisoners, but this offender does not fall into a category that might be considered for early parole. As a consequence he will remain more vulnerable than most, particularly given his age. The only release provisions available to him are those end of life provisions or exceptional extenuating circumstances provisions in s 160 Crimes (Administration of Sentences) Act1999 or the prerogative powers of the Governor for merciful release; s 160AD.

64. I cannot predict what will happen to this offender should CV-19 enter into the gaol, but I can take into account that the lack of visits will reduce his capacity to remain in contact with prosocial friends and family, with friends, and that heightened anxiety and concerns are relevant and must by synthesised along with all other matters. I have tried to do so based on the particular facts in this individual case: Brown v R [2020] VSC 60. It is also notorious, and I can take judicial notice of the fact that those of us who are in our sixties, seventies or older are more vulnerable to the severe effects of CV-19 than others.

Submissions

65. Mr Moutasallem, for the offender, and Mr Coulton, Solicitor Advocate for the Director, provided written and oral submissions. I have attempted to consider and address them in coming to my determinations as to the appropriate sentence. I hope these remarks do justice to them.

Special circumstances

66. The evidence about the offender’s age, his vulnerability in prison, his low risk of reoffending, his need for treatment in custody and reinforcement of that treatment outside, and follow-up, help into adjusting to normal community life after a lengthy period in custody all provide a basis for special circumstances. The world that he emerges into at the conclusion of his non-parole period will be a very different world than when he went into custody. I make my finding mindful of the requirement that the minimum period of custody must properly reflect the gravity of his offences and the other purposes of sentencing.

Other cases

67. I have been referred to a number of other cases. Both parties referred me to the helpful tables provided by the public defender which are part of MFI 2.

68. I have to apply legal principle consistently. I have to take into account the guidance offered by the appellate courts and other decisions. A pattern of past sentences for an offence can help establish a range and offer some sort of measuring stick against which I can approach the exercise of my discretionary judgment in this case. But every offence and every case is individual and the mix of factors that must be weighed will never be precisely the same as in a past case or cases: The Queen v Pham [2015] HCA 39: (2015) 256 CLR 550.

69. Here at one end of the spectrum I was taken to Eacott (a pseudonym) v R [2019] NSWCCA 158, a case which has some similarities to the present offending although the objective circumstances so far as Eacott were concerned seem to be less objectively seriousness than the present matter. At the other end are cases such as R v DR [2018] NSWDC 405 , a judgment of Judge Berman or IS v R [2011] NSWCCA 142. It is accepted that in a range of offending this offence falls below the middle which is one, but only one, relevant factor.

Synthesis

70. Jarvis ceased offending without formal intervention, but he lost that opportunity when the complainant, as she matured, began to distance, then remove, herself from his presence.

71. Any disorders that he had are classified as exclusive and, on release, any risk, and it is low, can be managed. He retains strong prosocial supports and while any term in prison might erode that support I am reasonably confident that he can resume normal community life on release. Any paedophilic disorders he may suffer from are classified as “exclusive” to his victim when she was young.

72. The maximum penalty, whether it be life or, frankly, 25 years ( should I have erred in my interpretation of s66EA), is an indication that retributive sentences must be imposed. Retribution is a notion that reflects the community’s expectation an offender will suffer punishment and that particular offences will merit severe punishment; Ryanv The Queen (2001) 206 CLR 267. Child sex offences fall into that category.

73. A proper sentence marks the Court’s view of the seriousness of a crime and let other wrongdoers know the retribution which will fall upon them if they commit similar crimes. The term retribution is sometimes used interchangeably with deterrence although they in fact separate considerations.

74. Here, I do not believe any further imprisonment is required to specifically deter the offender nor do I believe that the community needs to be protected from him. But his crimes are such that he must be removed from the community for a period. I have sought to make that period the minimum necessary to meet the objective seriousness of his crime. And to that crime I have to return.

75. Jarvis exploited his stepdaughter’s age; he exploited her childhood; he exploited her particular vulnerability; he exploited her innocence. He showed a callous disregard for her physical and mental wellbeing, in fact, he showed no regard for her as a child and showed no understanding at the time of the possible impact on her of his crimes.

76. There are, unfortunately, worse examples of such offending, but that does not diminish the seriousness of the matter for sentence. Courts are required to analyse and compare horrors inflicted on others as part of a calculus for converting human behaviour in all its forms into units of punishment: Weininger v The Queen (2003) 212 CLR 629.

77. The sentence imposed is only one indicator of the seriousness with which the Courts view the crime committed against the child. The Court in sentencing the offender must take into account all relevant considerations. This means a direct correlation between the harm done and the time to be served is impossible. A victim of sexual offences should never equate or measure her injury, her harm, with the punishment actually inflicted on the offender.

78. Each survivor of child sexual abuse is in need of, deserving of, and requires such protection and, importantly, vindication as the criminal law can provide. There is a need and an obligation in sentencing to do so and to express the community’s disapproval at the offending. I hope that such harsh punishments will avoid repetition of the crime against others.

79. In relation to the matter the offender is formally convicted. Had it not been for the utilitarian value of the plea of guilty a sentence of 13 years would have been imposed.

Orders

80. There will be a non-parole period in this matter of five years and five months which will commence on 29 April 2019. The offender will become eligible for release to parole on 28 August 2024. There will be a parole period of four years and four months reflecting a finding of special circumstances. The sentence will expire on 28 January 2029, a total sentence of nine years and nine months.

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Decision last updated: 29 July 2020