R v JDS (No. 2)

[2022] NSWDC 103

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v JDS (No. 2) [2022] NSWDC 103

Hearing dates:

11 March 2022

Date of orders:

8 April 2022

Decision date:

08 April 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [104].

Catchwords:

Historical child sexual offences; aggregate sentence.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

Aryal v R [2021] NSWCCA 2

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Carrol v R [2019] NSWCCA 243

Droudis v R [2020] NSWCCA 332

Fisher v R [2008] NSWCCA 129

GP v R [2017] NSWCCA 200

Jonson v R (2016) A Crim R 268

Merkel v R [2019] NSWCCA 212

R v Cattel [2019] NSWCCA 297

R v Edwards (1996) 90 A Crim R 510

R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56

R v JJ [2019] NSWCCA 148

R v King [2009] NSWCCA 117

R v KNL [2005] NSWCCA 260

R v Mailes (2003) 142 A Crim R 353

R v T (1990) 47 A Crim R 29

R v Tangi (No 12) [2020] NSWSC 547

R v Van Ryn [2016] NSWCCA 1

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
JDS (Offender)

Representation:

Counsel:
L. Lungo (Crown)
J. Ellis (Offender)

File Number(s):

2020/20534

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900, the publication of any material which may identify or is likely to lead to the identification of the complainants in the proceedings is prohibited.

remarks on sentence

1. Following a trial by Judge alone, the offender was found guilty of Counts 1 to 5 on the Indictment as follows:

1. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years of age, being a person under the authority of JDS.

This was an offence pursuant to s 66C(2) of the Crimes Act 1900, and carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period prescribed.

2. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years, being a person under the authority of JDS.

This was an offence pursuant to s 66C(2) of the Crimes Act 1900, which carries a maximum penalty of 10 years imprisonment. There is no standard non-parole period prescribed.

3. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, incited DSE a person then under the age of 16 years, namely, between 5 and 7 years of age, who was under the authority of JDS, to commit an act of indecency towards JDS.

This was an offence pursuant to s 61E(2A) of the Crimes Act 1900, which carries a maximum penalty of four years imprisonment. There is no standard non-parole period prescribed.

4. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, assaulted DSE and at the time of the assault, committed an act of indecency on DSE, a person then under the age of 16 years, namely between 5 and 7 years of age, being a person under the authority of JDS.

This is an offence pursuant to s 61E(1A) of the Crimes Act 1900, which carries a maximum penalty of six years imprisonment. There is no standard non-parole period prescribed.

5. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DSE, a child then under the age of 10 years, namely between 5 and 7 years of age.

This was an offence pursuant to s 66A of the Crimes Act 1900, which carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period prescribed.

2. The offences occurred between 31 December 1989 and 10 April 1992. The offender was arrested on 21 January 2020 and was bail refused from 22 January 2020 to 25 March 2020. He had been concurrently serving a sentence imposed on 11 June 2019 at Campbelltown Local Court and confirmed on 8 August 2019 at Campbelltown District Court for an offence of common assault (DV), for which he was sentenced to a term of imprisonment of 13 months and 2 weeks commencing on 11 September 2019 with a non-parole period of 8 months, commencing 11 September 2019 and concluding on 10 May 2020. That sentence was partly concurrent with the sentence imposed on the same date of intentionally choking a person without consent (DV), for which he was sentenced to 15 months imprisonment commencing on 11 June 2019 with an 8-month non-parole period concluding on 10 February 2020. Following verdict in the Judge alone trial, he was bail refused from 27 October 2021.

The sentence hearing

3. The sentence hearing took place on 11 March 2022. The Crown Sentence Summary became Exhibit A. It included the criminal antecedents of the offender, which included the following offences:

1. 11 January 1989 – high range PCA, for which he was fined and disqualified for six months.

2. 12 October 1989 – assault occasioning ABH and malicious damage, for which he was sentenced by way of a recognizance order to be of good behaviour for three years.

3. 21 October 1991 – assault police, resist arrest, hinder police, remain on enclosed lands and offensive language, for which he was sentenced by way of four months periodic detention, together with fines and a recognizance order to be of good behaviour for a period of three years.

4. 20 March 1991 – assault occasioning ABH, for which he was sentenced to six months periodic detention.

5. 25 February 1993 – mid-range PCA, for which he was fined and disqualified for 12 months.

6. 16 March 1994 – disqualified driver, for which he was fined and disqualified for six months.

7. 15 February 1999 – use offensive language, for which he was fined.

8. 9 October 2000 – high range PCA, for which he was given a s 10 bond to be of good behaviour for a period of 18 months.

9. 18 July 2001 – common assault, for which he was sentenced to a Community Service Order for 50 hours.

10. 12 February 2002 – breach of Community Service Order, for which he was sentenced to periodic detention for three months. On appeal, a s 9 bond to be of good behaviour.

11. 9 June 2009 – maliciously inflict grievous bodily harm in company, for which he was sentenced to 16 months imprisonment, reduced to a 12 months suspended sentence pursuant to s 12, on appeal.

12. 11 June 2019 – common assault (DV) and intentionally choke person without consent (DV), for which he was sentenced to 13 months and 15 months respectively. Orders confirmed on appeal.

4. Exhibit A also included the offender’s custodial record.

5. Exhibit A also included Victim Impact Statements (“VIS”) from DE and DSE, which I refer to below. Finally, it included an Interim Apprehended Domestic Violence Order made on 25 March 2020, protecting DE, DSE and JE. The Crown sought a final order excluding JE as a protected person.

6. The circumstances of the offending are set out in my judgment on verdict, delivered on 27 October 2021 (see R v JDS [2021] NSWDC 579), which should be read in conjunction with these remarks on sentence. My findings of fact were set out in [67] and [278] of that judgment.

7. In [67], I set out the following relevant agreed facts:

1.   In September 1981, DE was born.

2.   In July 1984, DSE was born.

3.   In 1987, DE attended Kindergarten.

4.   In 1988, the accused and ME met.

5.   In November 1988, the accused and ME married.

6.   In late 1988, ME, her three sons and the accused moved into premises at [M].

7.   In 1989, DSE attended kindergarten.

8.   In 1990, the accused, ME and the children move to [A].

9.   In July 1990, DSE turned 6.

10.   In September 1990, DE turned 9.

11.   In July 1991, DSE turned 7.

12.   In September 1991, DE turned 10.

13.   On 21 January 2020, the accused was arrested and charged.

8. In [278] I set out my relevant factual findings:

1.   At all relevant times when the accused was married to ME, he had a problem with alcohol and drank alcohol on a daily basis.

2.   At all relevant times the accused was quick to anger and had a bad temper.

3.   The accused was often physically violent towards ME, and towards the complainants DE and DSE.

4.   I accept each of the complainants’ evidence as to the physical violence meted out to them. In the case of DSE, that included being belted numerous times with a skipping rope so as to cause bruising to the legs and back as depicted in the photos in Ex A4, when DSE was six years of age. In the case of DE, it included corporal punishment and at times being struck when he stepped in to protect either ME or the other children.

5.   I find that each of the complainants were exposed during the relevant times to domestic violence directed by the accused to their mother ME.

6.   I find that although both the accused and ME worked in 1990 and 1991, it was probable that ME worked on a part-time basis, particularly when she became pregnant with AS.

7.   I find there was ample opportunity for the accused to be left alone with the children, either individually or together, during the period May 1989 to December 1991.

8.   As set out above, and consistent with the agreed facts, I find that ME became aware of the disclosure by DE to a prison psychologist in August 2018 of sexual abuse by the accused. I further find that ME was not aware of the detail of the abuse but forwarded the information known to her to Ms Perkins, the counsellor of DSE. At the time of the making of the statement dated 12 November 2018, DSE was aware DE had made allegations of a sexual nature about the accused, but not the details of those allegations.

9.   On all of the evidence, I am not satisfied that there was any collusion between the three complainants in the making of their separate allegations to the police about the conduct of the accused. There could be no finding of contamination of the evidence of each of the complainants. Rather, to the extent that the allegations may contain similarities, that is more likely to reflect on the modus operandi of the accused and his conduct towards the three stepsons, rather than any collusion between them.

10.   I am also not satisfied that each of the complainants were motivated to make allegations against the accused so as to ground claims for compensation. Each of the complainants denied this was the case and there was no evidence whatsoever upon which the claim could be made out.

11.   Nor am I satisfied that DE disclosed the allegations of sexual abuse to a prison psychologist in order to have his parole approved. There is no evidence on which that claim is based.”

9. As set out in my judgment at [293], the context evidence at the trial was important in that the evidence of violence meted out to the complainants explained why they did not complain earlier in time and also why they complied with the demands of the accused.

10. Count 1 concerned an occasion when the offender entered his bedroom and required DE to massage his back, feet, legs and buttocks. DE, who was aged between 7 and 11 years, gave evidence that the offender “rolled on the side and then sucked my dick – he pulled my pants down”.

11. In relation to Count 2, DE gave evidence that the offender, “rolled me on my side and penetrated me… he came into the room, he rolled me on my side… I was playing with his penis, he rolled me on my side and then he put his penis in my anus… for a few minutes… it was hurting… I felt like I got ripped… he sucked my penis first before he done anything.”

12. Count 3 involved an occasion when DSE was between 5 and 7 years of age. He gave evidence that the offender called him into his mother’s room and that he was laying on his stomach and asked DSE to massage his buttocks. DSE gave evidence “I didn’t think anything of it, so I did what he said. If not, I would have copped a flogging.”

13. Count 4 involved an occasion about three days later when DSE gave evidence that the offender called him into the room again to play a game of doctors and nurses. The offender pointed to his penis and asked him to pull his penis and he showed it to him. DSE gave evidence that “I was just scared, frightened.”

14. Count 5 involved the same occasion, in which DSE gave evidence that “I pulled his penis for about 10 to 15 minutes and within that time-frame he stuck his fingers in my bum.”

The offender’s evidence

15. The offender relied on a report of Mr J. Borkowski dated 10 February 2022 (Ex 1). Mr Borkowski, a Forensic Psychologist, interviewed the offender via audio visual link for two hours and 30 minutes on 3 February 2020. He was qualified with the Crown Case Statement and a copy of the offender’s NSW criminal history, but not my judgment on verdict delivered on 27 October 2021. He noted, incorrectly, that the offender had been convicted of four offences, omitting one of the offences pursuant to s 66C(2) of the Crimes Act 1900. He also incorrectly described Count 3 as an offence pursuant to s 61E(1A) of the Crimes Act 1900.

16. Mr Borkowski took a history that the offender was born in Fiji, where he lived until 17 years of age, before coming to Australia in 1987. The offender spoke of positive relationships with his parents and siblings, describing them as a “good family”. Mr Borkowski recorded that the victims of the current offences were the three children of the offender’s first wife, and they had conceived two more children during their relationship. Following that relationship, he had a subsequent relationship in his late 20s which lasted for approximately three to four years, during which three further children were born. A third relationship in his early thirties produced another two children, however, the offender acknowledged the relationship was impacted by his excessive alcohol use and associated dysfunction. Following the breakdown of that relationship, the offender returned to Fiji where he again married, and he and his wife have been together for approximately 21 years. He has four children from his current relationship who are aged between 3 and 18 years of age.

17. Under the heading, “Psychosexual Development”, the offender denied any paedophilic sexual interests or any other deviant or paraphilic sexual preferences.

18. The author took a history of a stable employment during the offender’s adult life. He had sustained work-related injuries to his back and shoulder and described several age-related medical issues concerning hereditary heart conditions, his kidneys and blood pressure. He denied any prior diagnosis of mental health conditions.

19. The offender acknowledged that he had started drinking alcohol in his late adolescence and that use increased to problematic levels, describing patterns of binge drinking which had continued up until recently in the community. He had attended Alcoholics Anonymous meetings in the past but denied engaging in any other alcohol treatment or rehabilitation programs. He maintained that all of his past criminal offending was related to his alcohol abuse, however in a 10-year period between 2009 and 2019 he did not incur any charges or convictions.

20. The offender maintained his innocence in relation to the offences of which he was convicted.

21. The offender was assessed as an average risk of sexual reoffending, however the absence of sexual offending over a period of 30 years would reduce his risk rating.

22. Mr Borkowski diagnosed the offender with an alcohol use disorder together with an adjustment disorder as a result of the current legal proceedings.

23. Mr Borkowski opined that the offender’s history was notable in that a pattern of increasing binge alcohol abuse had developed since his late adolescence, which contributed to behavioural concerns including violence and other irresponsible behaviours such as drink driving, as well as contributing to difficulties in some of his past relationships. He further opined that the offender was unable to provide any insights into the possible underlying factors for his alcohol abuse. Given his continuing denial of the offending conduct, there was no opportunity to explore the possible contributing or causal factors that led or contributed to the offences.

24. Mr Borkowski outlined a recommended treatment plan with both community- based and custody-based options.

25. Exhibit 2 was a letter addressed to the court by the offender’s wife, Vikashni Singh, dated 17 February 2022. In it, she described the offender as her “loving husband of 22 years of marriage” and as “the glue to my home”. She also outlined the effect that the offender’s incarceration and consequential withdrawal of his financial and emotional support had on her and her children. Mrs Singh also outlined that the offender had been a good father to his children and had never displayed the characteristics of someone who would sexually harass kids. She described him as “the most loving father, uncle and grandfather”.

The Crown submissions on sentence

26. The Crown relied on a thorough and detailed written outline of submissions in which it set out the general principles of sentencing. Having recorded the relevant maximum penalties for each of the five offences, the Crown referred to s 25AA of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”), which provides that a court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentence, not at the time of the offence. In R v Cattel [2019] NSWCCA 297 at [125], Price J observed that the sentencing court should expressly state that the offender has been sentenced in accordance with s 25AA(1) and explain how the court has had regard to the trauma of sexual abuse on the child victim.

27. The Crown referred to the findings of fact set out above, including the agreed facts, and set out a number of comparative sentences, namely, Merkel v R [2019] NSWCCA 212, Carrol v R [2019] NSWCCA 243 and GP v R [2017] NSWCCA 200.

28. The Crown submitted that the court would take into account the offender’s time in custody, which as at 18 February 2022 when the matter was first listed for sentence but was unable to proceed, was 115 days.

29. The Crown noted that an aggregate sentence may be imposed pursuant to s 53A(1) of the CSPA and set out the following aggravating factors pursuant to s 21A(2) of the CSPA as follows.

Section 21A(2)(b) – the offence involved the actual or threatened use of violence

30. The Crown referred to the evidence of DSE in relation to Count 3. When asked by the offender to massage his buttocks, DSE said in evidence, “I didn’t think anything of it, so I just done what he said. If not, I would have copped a flogging… because he used to threaten me and beat me up all the time.”

Section 21A(2)(eb) – the offence was committed in the home of the victim

31. The Crown submitted this was an aggravating factor notwithstanding that the offender also lived in the home, relying on Jonson v R (2016) A Crim R 268.

Section 21A(2)(g) – the injury, emotional harm, loss or damage caused by the offence was substantial

32. The Crown referred to the evidence of DE in relation to Count 2, which involved the offender penetrating DE’s anus with his penis. DE said, “I felt like I got ripped”. DE gave further evidence that two weeks later he was still sore and had a scab in the area of his anus.

Section 21A(2)(j) – the offence was committed whilst the offender was on conditional liberty in relation to an offence or alleged offence

33. The Crown submitted the offences occurred between 31 December 1989 and 10 April 1992, during which period of time the offender was subject to two recognizance orders. On 12 October 1989, the offender was sentenced for an offence of assault occasioning actual bodily harm and placed on a recognizance for three years. On 20 March 1991, he was convicted of an offence of offensive language and placed on a recognizance for three years.

34. The Crown submitted that the objective seriousness of the offending for Count 1 and 2 fell above the mid-range for an offence pursuant to s 66C(2) of the Crimes Act 1900 for the following reasons:

1. DE was between 7 and 11 years of age, which was substantially less than 16 years. In R v KNL [2005] NSWCCA 260 at [42]-[43], the court observed, “it is also the case that, in terms of the position occupied by a given offence on the spectrum of offences of this kind, the younger the child the more serious the offence; R v T (1990) 47 A Crim R 29.”

1. The violence meted out to DE, which not only explained why he did not complain at the time, but also why he complied with the sexual acts. DE gave evidence that the offender was “very violent. He’d bash mum, me, the kids. I tried to stand in front of him to stop him hitting the other kids. He was just violent. Very violent… he’d flog me with belts, the belt strap, his fists and other things.”

35. The Crown submitted the objective seriousness of each of the offences in Counts 3, 4 and 5, fell above the mid-range of objective seriousness for the following reasons:

1. The age of DSE being between 5 and 7 years, which was substantially less than the ages relative to the offences in particular Counts 3 and 4, being 16 years.

2. The violence meted out to DSE, which not only explained why he did not complain at the time but why he complied with the sexual acts.

36. The Crown submitted that the only appropriate sentence was a custodial sentence.

37. The Crown relied on a further supplementary submission in response to submissions made on behalf of the offender. In it, the Crown submitted that the Victim Impact Statements filed on behalf of DE and DSE provided a basis for a finding of an aggravating factor pursuant to s 21A(2)(g), namely that the injury, emotional harm, loss and damage caused by the offence was substantial. The VIS are referred to below. In response to the offender’s subjective factors as set out in the report of Mr Borkowski (Ex 1), the Crown noted that the psychologist had not been provided with a copy of my judgment dated 27 October 2021. The Crown submitted that had he been aware of adverse findings made against the offender, the author may have been more guarded in his assessment of the offender. The Crown noted that the offender continued to deny the offending, had shown no remorse and that his prospects for rehabilitation must be viewed as poor.

38. In relation to a submission made on behalf of the offender that a finding of special circumstances should be made, the Crown submitted that this will not be the offender’s first period of full-time custody. Further, there was no evidence in regard to the offender’s health and medical condition whilst in custody, and no evidence in relation to his custodial conditions whilst in protective custody. The Crown accepted that there had been restrictions placed on visitors to prisons as a result of the pandemic.

39. In relation to whether the offender had facilitated the administration of justice by electing to proceed to trial by way of Judge alone, the Crown referred to Droudis v R [2020] NSWCCA 332, where the court held that if a sentencing Judge had treated assistance during a trial to be a mitigating factor rather than a discount on sentence, he was not in error in doing so.

40. In his oral submissions, the Crown relied on its two sets of written submissions. The Crown also noted that the domestic violence related offences of assault and intentional choking, for which the offender was sentenced in April 2019, involved his wife as the victim. Further, the VIS of DE and DSE were not to be read in open court, but should be taken into account.

The offender’s submissions

41. Counsel for the offender also relied on a detailed written outline of submissions.

42. Counsel submitted that the fact that Counts 1, 2, 3 and 4 were committed whilst the victims were under the authority of the offender will not aggravate the offences, given that this feature is an element of the offences. It was further submitted that the victims’ ages at the time of the offending can be taken into consideration in assessing the objective gravity of the offences, but will not constitute an aggravating factor under s 21A(2).

43. It was submitted that the evidence relating to the offender’s alcohol abuse and physical violence directed towards the victims’ mother and the victims themselves, will not aggravate the offences under s 21A(2)(b) because:

“a.   The victims also complied, we submit, because the offender was their stepfather and because they were under his authority – which as discussed is already an element of the offences (except for Count 5);

b.    There was no evidence that the offender used actual or threatened violence or force immediately before or during the sexual acts to coerce the victims;

c.   The threats made to DSE after the sexual acts (Counts 3-5) were not made to coerce DSE into massaging the offender’s buttocks or to coerce him into touching the offender’s penis; but rather to discourage DSE to tell anyone about the acts.”

On that basis, it was submitted the court will find that there was no violence or threats used by the offender to commit the offences against either DSE or DE.

44. In respect of the objective seriousness of the offending in Counts 1 and 2 against the victim DE, it was submitted that evidence of uncharged acts, namely, of the offender touching DE on the penis on a daily basis, may be taken into account to rebut a suggestion that the charged misconduct was an isolated incident, but not so as to aggravate the offences, relying on R v Mailes (2003) 142 A Crim R 353 at [51]; Fisher v R [2008] NSWCCA 129 at [19].

45. It was submitted that the objective seriousness of the offending in Count 1 was below mid-range for an offence pursuant to s 66C(2) as:

“a.   There is no evidence of any coercion or threats;

b.   The act was short in time;

c.   There was no evidence that the victim was physically hurt during the act;

d.   The act of fellatio is in general terms, less serious than a penile penetration.”

46. Counsel submitted that the objective seriousness of the offending in Count 2 was within the mid-range of objective seriousness for an offence pursuant to s 66C(2) as:

“a.   There is no evidence that the victim was threatened or coerced; and

b.   The violence or the pain inflicted were not more than the ordinary and expected result of penetrating a child anus with an adult penis.”

47. Counsel submitted that the offending in Count 3, which involved the victim DSE massaging the offender’s buttocks for 10 to 15 minutes, was within the lower range of objective seriousness and did not warrant a custodial sentence. It was submitted that there were no threats or violence used on this occasion.

48. In respect of Counts 4 and 5, which referred to a single episode of criminal conduct, Count 4 involved DSE pulling the offender’s penis for about 10 to 15 minutes, and Count 5 involved the offender putting his finger into DSE’s anus. The offender told DSE not to say anything. Counsel submitted that the offending in respect of both Counts 4 and 5 was within the mid-range for an offence pursuant to s 61E(1A) and s 66A, because:

“a.   There were no threats or violence;

b.   The victim complied because he was under the authority of the offender; and

c.   There is no evidence that the offender ejaculated or caused any physical pain to DSE.”

49. Counsel accepted that general deterrence is paramount in sentencing offenders for historical child sexual offences and that s 25AA(1) of the CSPA applies. The court will therefore sentence the offender in accordance with the sentencing patterns and practices at the time of sentence, not at the time of the offence. Counsel further accepted that the offender was subject to two recognizance orders at the time of the offending and that he has a record of previous convictions for domestic violence offences and drink driving offences. It was submitted he had no conviction for sexual offences. It was therefore submitted his criminal record would deprive him of any leniency he could have expected in the absence of any prior convictions.

50. Counsel further accepted that the offender abused his position of trust and authority in relation to DSE for Count 5, pursuant to s 21A(2)(k). It was submitted the offending was opportunistic and most likely linked to the offender’s alcohol abuse.

51. It was submitted that for the court to be satisfied that it was an aggravating feature of the offences that they occurred in the victim’s home, it must be shown that that fact actually aggravates the offences. Counsel submitted that this was not the case here. Rather, it was the fact that the victims were left under the authority of the offender and the offending involved a breach of trust which added to the criminality involved. It was further submitted that the court would not find that the harm caused by the offences, of which the offender has been found guilty, is substantial.

52. Counsel submitted that in relation to the VIS of DSE, the harm did not relate to the offences under consideration, but essentially to incidents of domestic violence. It was submitted that the symptoms DSE described could not be said to result from the sexual offending and that the harm toward the victims did not go beyond what could reasonably be expected from conduct of this nature.

53. The offender relied on the report of Mr Borkowski to establish relevant subjective features to be taken into account. The offender was now 51 years of age and was 22 years at the time of the offending. The offender had accepted that his relationships had been impacted by excessive alcohol use and associated dysfunction. This was confirmed by Mr Borkowski’s diagnosis of an alcohol use disorder.

54. The offender still has the support of his wife and children, and it was submitted the offender was suffering immensely from not being able to contact or see his children the subject of the current AVO. The offender had always been in employment except for some periods of time following back and shoulder injuries he sustained at work. He was currently suffering age-related medical problems including asthma and diabetes. Since his incarceration, Mr Borkowski had diagnosed the offender as suffering an adjustment disorder.

55. Counsel referred to the opinion of Mr Borkowski that the offender’s risk of reoffending was average, but noted that the risk was reduced given that 30 years had transpired without any sexual offending. It was submitted that the court would take into account the offender’s young age at the time of the offending, namely 22 years, as well as his “reasonably good prospects of rehabilitation”. It was further submitted that the offender always complied with strict and onerous bail conditions and that his incarceration means that he will no longer be able to work, which will cause financial hardship to his family.

56. Counsel submitted that the court will find special circumstances pursuant to s 44(2) of the CSPA, justifying an adjustment of the ratio of the non-parole period to the head sentence. This was his first significant period in custody, he suffers from diabetes and other medical conditions and is being held in protective custody. Also, the impact of the COVID-19 pandemic on the gaol system made his time in custody more onerous, referring to R v Tangi (No 12) [2020] NSWSC 547 and other cases.

57. The offender accepted that the s 5 threshold had been crossed and that only a custodial sentence was warranted. Any sentence should reflect the time the offender has spent in custody to date.

58. The offender submitted that having elected to be tried by Judge alone during the COVID-19 pandemic, that served to reduce delays and case backlog and was therefore beneficial to the court system and to the community, relying on R v Ross (No 5) [2020] NSWDC 306. It was submitted a discount should be granted to the offender for the utilitarian value of the election.

59. The court will also take into account the age of the offender and apply the principle of totality so that his release date would still allow him to make a worthwhile contribution to his life and that of his family. The court would take into consideration the fact that each additional year in custody represents a significant portion of his remaining life expectancy.

60. Counsel for the offender then sought to distinguish the comparative cases referred to by the Crown and submitted that the Court of Criminal Appeal’s decision in R v JJ [2019] NSWCCA 148 will be of assistance to the court in arriving at a proportionate sentence.

61. In her oral submissions, counsel for the offender confirmed that a final AVO had been made at Campbelltown Local Court on 2 November 2021, protecting the two victims and a third complainant for a period of five years. It was conceded however that this was no bar to the court making a final order following sentence.

62. Counsel rehearsed her submission that the background evidence relating to domestic violence was not to be used to assess the objective seriousness of the offending or to increase it, but rather it was evidence that put the offences in context and explained the compliance of the victims and their failure to report the sexual assaults.

63. Counsel also rehearsed her submission that in respect of Counts 1, 2, 3 and 4, the fact that the offences occurred when the victims were under the authority of the offender and that the offences should not be aggravated by the threat of violence. The reason the victims complied following the threat of violence was because that threat came from the offender who was in a position of authority and a person they trusted.

64. It was further submitted that the threats were limited to the victim DSE, namely, not to tell anyone about the offending.

65. It was submitted that in respect of Counts 3, 4 and 5, the court would not hold that any threat of violence was an aggravating factor. Further, in respect of Counts 1 and 2, involving the victim DE, the court would not take into account evidence of uncharged acts. These did not constitute an aggravating factor, but were relevant only to establish that the offending was not an isolated act in each case.

66. Counsel rehearsed her submissions as to the objective seriousness of the offending in each case, namely, Count 1 being below mid-range, Count 2 being within the mid-range, Count 3 being within the lower range and Counts 4 and 5 being in the mid-range of objective seriousness for the individual offences.

67. Counsel also rehearsed her submission that the fact that the offending occurred in the home of the victims was not necessarily an aggravating feature of the offences. This was because the victims were under the authority of the offender and therefore there should be no separate aggravation of the offending on the basis that it occurred in their home.

68. In respect of the VIS, it was submitted that with regard to both victims, the court must be satisfied that the harm caused was caused by the offending exclusively. However, here, there was domestic violence occurring in the home and the children were also placed in foster care from an early age. There was also abuse of drugs and alcohol, which exacerbated the victims’ mental health issues. Given there were multiple factors to take into account here, it could not be held that the offending was the direct cause of the harm outlined in the VIS. Rather, it was a combination of all of the above matters.

69. Counsel rehearsed her submissions as to the subjective factors to be taken into account as outlined in Mr Borkowski’s report. It was also important that the offender had the support of his wife as outlined in Ex 2, in which she described the offender as a “hard worker, great provider and an outstanding father for their children”.

70. It was submitted that the gap of 30 years between the offending and sentence meant that the offender was now a different person. This was relevant to his rehabilitation. Counsel further conceded that financial hardship to his family did not amount to special circumstances. However, it was submitted that a finding of special circumstances should be made pursuant to s 44 of the CSPA given that this was the offender’s first significant period in custody, his age and medical conditions and the onerous conditions of incarceration brought about by the COVID-19 pandemic.

71. The Crown submitted in reply, with respect to the final ADVO sought, referring to s 39(2) of Crimes (Domestic & Personal Violence) Act 2007, which meant that a final order was not required if the court was so satisfied, in circumstances where a final order had already been made, as was the case here.

Determination

72. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A    The purposes for which a Court may impose a sentence on an offender are as follows:

(a)    To ensure that the offender is adequately punished for the offence,

(b)   To prevent crime by deterring the offender and other persons from committing similar offences,

(c)   To protect the community from the offender,

(d)   To promote the rehabilitation of the offender,

(e)   To make the offender accountable for his or her actions,

(f)   To denounce the conduct of the offender,

(g)   To recognise the harm done to the victim of the crime and the community.”

73. Section 25AA of the CSPA was introduced into the CSPA on 31 August 2018. It provides as follows:

“(1)   A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, and not at the time of the offence.

(2)   However, the standard non-parole period for a child sexual offence is the standard non-parole period (if any) that applied at the time of the offence, not at the time of sentencing.

(3)   When sentencing an offender for a child sexual offence, the court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(4)   This section does not affect s 19.

(5)   In this section:

‘Child sexual offence’ means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years:

(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,

(b)   an offence under a provision of that Act set out in column 1 of Schedule 1A to that Act,

(c)   an offence of attempting to commit any offence referred to in paragraphs (a) or (b),

(d)   an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a) – (c).”

74. In R v Cattell (supra), Price J (with whom Hoeben CJ at CL and Campbell J agreed) said at [123]:

“When fixing a sentence for an old child sexual offence which falls within s 25AA, a sentencing Judge should:

(a)   Take into account the sentencing pattern which exists at the time of sentence where such a pattern is able to be discerned;

(b)   Determine the facts as now available to the court;

(c)   Pay regard to the maximum penalty and the standard non-parole period (if any) that applied at the time of the offence;

(d)   Identify where the offence falls in the range of objective gravity of that offence;

(e) Take into account any relevant aggravating factors and mitigating factors in s 21A(2) and (3) of the CSPA;

(f) Set a non-parole period in accordance with s 44 of the CSPA as it operates at the time of sentence, and

(g)   Fix the balance of the term of the sentence.”

75. In assessing the objective seriousness of the offending in Count 1, I take into account that DE was between 7 and 11 years of age and therefore substantially younger than the age of 16. It involved the offender performing fellatio on DE and constituted serious offending, within the mid-range for an offence pursuant to s 66C(2) of the Crimes Act 1900.

76. Count 2 occurred on the same occasion and involved the offender anally penetrating DE with his penis. Given the age of DE, this was serious criminal conduct at the highest end of the mid-range for an offence pursuant to s 66C(2) of the Crimes Act 1900.

77. Count 3 concerned an occasion when DSE was between 5 and 7 years of age and he was called into his mother’s room, where the offender was laying on his stomach, and he required DSE to massage his buttocks. DSE was aware that if he didn’t do what the offender said he would have “copped a flogging”. The objective seriousness of the offending was in the middle of the low range for an offence pursuant to s 61E(2A) of the Crimes Act 1900.

75. Count 4 involved an occasion about three days later, when the offender called DSE into his room to play a game of “doctors and nurses”. He was asked to “pull” the offender’s penis and the offending involved skin-on-skin contact. It was serious criminal offending, towards the top of the low-range for an offence pursuant to s 61E(1A) of the Crimes Act 1900.

76. Count 5 involved the same occasion when after pulling the offender’s penis for 10 to 15 minutes, the offender digitally penetrated the victim’s anus. Given the age of the victim, this constituted serious criminal conduct within the mid-range for an offence pursuant to s 66A of the Crimes Act 1900.

77. I note that it was an element of each of the offences in Counts 1, 2, 3 and 4 that the victim was under the authority of the offender at the time of the offending. I have therefore not taken that into account as an aggravating factor. Having regard to the evidence at trial of uncharged acts of the offender, I find that the five offences on which he was convicted were not isolated incidents.

78. I have taken into account the following aggravating factors pursuant to s 21A(2) of the CSPA as follows.

Section 21A(2)(b) – the offence involved the actual or threatened use of violence

82. The context evidence of violence meted out to the victims, their siblings and their mother demonstrated that the offences occurred on each occasion in circumstances underlined by the threat that if the victims did not do as the offender required them to do, he would be violent towards them. This not only explained why they did not complain at the time, but also why they complied with the offender’s requests, as they were scared and frightened of him. This is a significant aggravating factor for children of such a young age as DE and DSE at the time of the offences.

Section 21A(2)(eb) – the offences were committed in the home of the victims

83. It is a further aggravating factor that the offences were committed in the home of the victims. They were entitled, as very young children, to feel safe in their own home as a place of refuge, and their safety was violated by the index offending. I therefore reject the offender’s submission in [51] above that this was not an aggravating factor, but rather it was the fact that the children were under his authority and the offending involved a breach of trust, which aggravated the offending. The two aggravating factors are not mutually exclusive.

Section 21A(2)(g) – the injury, emotional harm, loss or damage caused by the offences was substantial

84. The high maximum penalties prescribed for the offences pursuant to s 66C(2) and 66A reflect the harm that is caused by this kind of sexual offending.

85. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, the Court of Criminal Appeal said at [110]:

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

86. It has long been held that sexual assault offences of their very nature cause significant harm – see R v King [2009] NSWCCA 117 at [41].

87. The VIS on behalf of both DE and DSE are poignant examples of the serious harm, both physical and psychological, caused by serious sexual offending on young children. Whilst it is not possible to distil the impact of the index offences from the impact of uncharged criminal conduct such as domestic violence, and other stressors in the victims’ lives, I am satisfied beyond reasonable doubt that the index offending caused substantial harm in each case. Further, when sentencing an offender for a child sexual offence pursuant to s 25AA(3), the court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing. The VIS are clear evidence of that, however, they are not supported by medical evidence and whilst I find that substantial harm was caused to each of the victims, I have not relied on the VIS so as to elevate the moral culpability of the offending.

Section 21A(2)(j) – the offences were committed whilst the offender was on conditional liberty

88. I accept the Crown’s submission that the offences occurred between 31 December 1989 and 10 April 1992, during which period of time the offender was subject to two recognizance orders. The first, for a period of three years from 12 October 1989 and the second for a period of three years from 20 March 1991. The first was for an offence of violence, namely, assault occasioning actual bodily harm and it was therefore an aggravating factor that the offending was in breach of that recognizance.

89. I have taken into account the subjective factors advocated on behalf of the offender. He was aged approximately 22 years at the time of the offending and I therefore take his relative youth into account. Whilst the offender thereafter lived a largely blameless life with few criminal convictions, the reality is that his criminal conduct remained undetected for almost 30 years and the lack of detection was directly related to the nature of the offending. The offender therefore escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes.

90. I find that the offender’s risk of reoffending is average, and accept the opinion of Mr Borkowski that any risk may be reduced given that 30 years has transpired without any sexual offending. As the offender has continued to deny his offending, I am unable to accept Mr Borkowski’s opinion that he has reasonably good prospects of rehabilitation. Rather, any prognosis of his prospects must be guarded.

91. I am not satisfied that by electing to proceed by way of a Judge alone trial, the offender facilitated the course of justice so as to warrant mitigation of his sentence. Notwithstanding the backlog of trials caused by the COVID-19 pandemic, decisions to elect to proceed by Judge alone trial are usually forensic decisions made in the interests of the parties, there is no coercion to do so and the victims were still required to give evidence and be cross-examined. Here, where the Crown was put to proof, this did not facilitate the course of justice. I therefore decline to find that it was a mitigating factor to be taken into account in this case, having regard to the manner in which the trial was conducted on behalf of the offender.

92. I have had regard to the following maximum penalties as guideposts in the sentencing process:

1. Count 1, offence pursuant to s 66C(2) of the Crimes Act 1900 – 10 years imprisonment

2. Count 2, offence pursuant to s 66C(2) of the Crimes Act 1900 – 10 years imprisonment

3. Count 3, offence pursuant to s 61E(2A) of the Crimes Act 1900 – 4 years imprisonment

4. Count 4, offence pursuant to s 61E(1A) of the Crimes Act 1900 – 6 years imprisonment

5. Count 5, offence pursuant to s 66A of the Crimes Act 1900 – 20 years imprisonment

There is no standard non-parole period applicable to any of the offences.

93. The offender’s criminal antecedents, some of which post-date the index offences, disentitle him to any leniency in the sentencing process. Further, his wife’s testimony as to his character carries little weight, given that she was the victim in the two domestic violence related offences in June 2019 of common assault and intentionally choke a person without consent, for which he was sentenced to terms of imprisonment of 13 months and 15 months respectively.

94. Nor am I satisfied that the financial hardship caused to his family both here and in Fiji amounts to hardship on a third party so as to justify leniency in sentencing. Such hardship is the unavoidable consequence of the offender’s criminal conduct and could not be characterised as being “highly exceptional” so as to mitigate any sentence imposed – see R v Edwards (1996) 90 A Crim R 510 per Gleeson CJ at 515.

95. General deterrence is important in sentencing for child sexual offending. It amounts to pernicious offending, at the heart of which is predatory behaviour on the most vulnerable persons in our society who, given that they are under the authority of the perpetrator, are defenceless, particularly here where there was a background of domestic violence. Whilst being under the offender’s authority was not an aggravating factor in Counts 1, 2, 3 and 4, as it constituted an element of those offences, it was an aggravating factor in Count 5, pursuant to s 21A(2)(k) of the CSPA, and it constituted a gross breach of trust. I do not accept the submission made on behalf of the offender at [43] above that the physical violence directed towards the victims and their mother did not aggravate the offences under s 21A(2)(b). It clearly did so, leaving the victims in fear of retribution if they did not comply with the offender’s wishes. General deterrence, denunciation and protection of the community are relevant to sentencing here. A clear message must be sent to those who sexually abuse children that their actions will not be tolerated and they will received condign punishment – see R v JJ (supra) at [45].

96. Given that the offender is now 51 years of age and a lengthy period of time has expired with no further sexual offending, I am persuaded that specific deterrence is of diminished importance in the sentencing process here. Otherwise, the offender does not benefit from any extensive delay in the revelation of these child sexual offences – see R v Cattel (supra) per Price J at [135]. Nor does the fact that the offences were of short duration mitigate the offending.

97. The offender accepts the threshold in s 5 of the CSPA has been crossed and I find, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

98. I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. To ensure transparency in the sentencing process, I provide the following indicative sentences:

1. Count 1, offence pursuant to s 66C(2) of the Crimes Act 1900 – 18 months imprisonment.

2. Count 2, offence pursuant to s 66C(2) of the Crimes Act 1900 – 4 years imprisonment.

3. Count 3, offence pursuant to s 61E(2A) of the Crimes Act 1900 – 3 months imprisonment.

4. Count 4, offence pursuant to s 61E(1A) of the Crimes Act 1900 – 2 years imprisonment.

5. Count 5, offence pursuant to s 66A of the Crimes Act 1900 – 4 years and 6 months imprisonment.

99. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

100. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

101. In applying the above principles, there must be some concurrency in sentencing between Counts 1 and 2, which occurred on the same occasion, and Counts 4 and 5 which also occurred on the same occasion and constituted one course of criminal conduct. However, there must also be accumulation in sentence in respect of each of the victims and also in respect of the offending in Count 3, which occurred on a separate occasion from Counts 4 and 5. Taking into account those matters of concurrency and accumulation, the aggregate sentence to be imposed involves an assessment of what is appropriate to reflect the totality of criminality in all of the offending – see Aryal v R [2021] NSWCCA 2 at [46].

102. Having regard to the objective seriousness of the offending overall, and the subjective and mitigating factors put on behalf of the offender, including his age, an appropriate aggregate sentence here is 6 years and 6 months imprisonment. The sentence will be backdated to take into account the 227 days the offender has spent in custody.

103. I make a finding pursuant to s 44(2) of the CSPA of special circumstances based on the age of the offender, namely 51 years, and the accumulation involved in the sentence. I also take into account the onerous conditions of the prison population generally, as a result of the COVID-19 pandemic and the actions taken by Corrective Services to protect the whole of the prison population, which means a lack of visitation rights and restricted access to rehabilitative courses. I therefore intend to vary the statutory ratio between head sentence and non-parole period and impose a non-parole period of 4 years and 3 months to commence on 24 August 2021.

Orders

104. I make the following orders:

1. You are convicted of the following offences:

1. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years of age, being a person under the authority of JDS.

This was an offence pursuant to s 66C(2) of the Crimes Act 1900.

2. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DE a person then above the age of 10 years and under the age of 16 years, namely between 7 and 11 years, being a person under the authority of JDS.

This was an offence pursuant to s 66C(2) of the Crimes Act 1900.

3. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, incited DSE a person then under the age of 16 years, namely, between 5 and 7 years of age, who was under the authority of JDS, to commit an act of indecency towards JDS.

This was an offence pursuant to s 61E(2A) of the Crimes Act 1900.

4. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, assaulted DSE and at the time of the assault, committed an act of indecency on DSE, a person then under the age of 16 years, namely between 5 and 7 years of age, being a person under the authority of JDS.

This is an offence pursuant to s 61E(1A) of the Crimes Act 1900.

5. Between 31 December 1989 and 10 April 1992, at [A] in the State of New South Wales, had sexual intercourse with DSE, a child then under the age of 10 years, namely between 5 and 7 years of age.

This was an offence pursuant to s 66A of the Crimes Act 1900.

2. I sentence you to an aggregate sentence pursuant to s 53A of the CSPA 1999.

3. I sentence you to a non-parole period of 4 years and 3 months to commence on 24 August 2021 and to expire on 23 November 2025.

4. The balance of term will be a period of 2 years and 3 months to commence on 24 November 2025 and to expire on 23 February 2028.

5. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some other date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any conditions of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

6. I decline to make a final apprehended violence order against the offender, as I am satisfied pursuant to s 39(2) of the Crimes (Domestic and Personal Violence) Act 2007 that a final order has already been made in the Local Court.

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Amendments

12 April 2022 - Amendment made in accordance with s 578A of the Crimes Act 1900.

Decision last updated: 12 April 2022