R v JH

[2025] NSWDC 314

District Court

New South Wales

Medium Neutral Citation:

R v JH [2025] NSWDC 314

Hearing dates:

2 July 2025

Date of orders:

15 July 2025

Decision date:

15 July 2025

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

152 I make the following orders:

(1) The offender is convicted of the offences.
(2) The indicative sentences are set out above.
(3) I impose a sentence of imprisonment of 10 years commencing 27 March 2025 years to expire on 26 March 2035.
(4) I impose a non-parole period of 6 years to expire on 26 March 2031.
(5) The earliest date the offender is eligible to be released on parole is 26 March 2031.

Catchwords:

CRIME — sentencing — sexual offences against children — juvenile at the time of offending— aggravated sexual assault — victim <16 years — deprivation of victim’s liberty — infliction of actual bodily harm

CRIME – sentencing — multiple victims — sexual intercourse with person above 10 years and under 14 years — intentionally sexually touch child above 10 years under 16 years — take or detain person with intent to commit serious indictable offence — indecent assault of person under 16 years

CRIME – sentencing — offending spanning over years — Form 1 offences

CRIME — sentencing — subjective considerations on sentence — age of offender — mental health – deprived upbringing - special circumstances

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes (Sentencing Procedure) Act 1999

Crimes Act 1900

Cases Cited:

AE v R [2010] NSWCCA 203

Baden v R [2020] NSWCCA 23

BB v R [2024] NSWCCA 13

BM v R [2019] NSWCCA 223

BP v R (2010) 201 A Crim R 379

Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37

Giles-Adam v R; Preca v R [2023] NSWCCA 122

Hall v R [2021] NSWCCA 220

Hoskins v R [2021] NSWCCA 169

KT v R [2010] NSWCCA 51

McGrath v R (2010) 199 A Crim R 527

Miller v R [2015] NSWCCA 86

MW v R [2010] NSWCCA 324

R v AA [2017] NSWCCA 84

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

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

RA v R [2024] NSWCCA 149

Tepania v R [2018] NSWCCA 247

Category:

Sentence

Parties:

Rex, JH

Representation:

Counsel:
A Wong (Offender)
R Taylor (Crown)

Solicitors:
Jack Murray Law (Offender)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/00XX2101, 2024/00123104, 2024/00123129

Publication restriction:

Pursuant to Section 15A of the Children (Criminal Proceedings) Act 1987 there is to be no publication of names, information, material or evidence that identifies or is likely to lead to the identification of any child or witness involved in these proceedings.

JUDGMENT

1. The offender pleaded guilty to the following offences:

1. In relation to the victim EA:

1. H96721672/2: Indecent assault person under 16 years of age contrary to s 61M(2) of the Crimes Act 1900. This offence carries a maximum penalty of 10 years’ imprisonment. The offender asks the Court to take into account one count of commit act of indecency with person under 16 years (H96721672/13) contrary to s 61N(1) of the Crimes Act 1900 when passing sentence with respect to H96721672/2.

2. H96721672/11: Have sexual intercourse with person aged 10 years or over and under 14 years contrary to s 66C(1) of the Crimes Act 1900. This offence carries a maximum penalty of 16 years' imprisonment. The offender asks the Court to take into account one count of indecent assault person under 16 years of age (H96721672/18) contrary to s 61M(2) of the Crimes Act 1900 when passing sentence with respect to H96721672/11.

3. H96721672/12: Take or detain person with intent to commit serious indictable offence contrary to s 86(1)(a1) of the Crimes Act 1900. This offence carries a maximum penalty of 14 years’ imprisonment. The offender asks the Court to take into account one count of indecent assault person under 16 years of age (H96721672/19) contrary to s 61M(2) of the Crimes Act 1900 when passing sentence with respect to H96721672/12.

4. H96721672/14: Aggravated sexual assault (victim under 16 years) contrary to s 61J(1) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years’ imprisonment. The offender asks the Court to take into account three counts of indecent assault person under 16 years of age (H96721672/4, H96721672/5, H96721672/6, H96721672/8) contrary to s 61M(2) of the Crimes Act 1900 and one count of common assault (H96721672/8) contrary to s 61 of the Crimes Act 1900 when passing sentence with respect to H96721672/14.

5. H96721672/15: Aggravated sexual assault (victim under 16 years and deprivation of liberty) contrary to s 61J(1) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years’ imprisonment. The offender asks the Court to take into account one count of indecent assault person under 16 years of age (H96721672/16) contrary to s 61M(2) of the Crimes Act 1900 and one count of common assault (H96721672/20) contrary to s 61 of the Crimes Act 1900 when passing sentence with respect to H96721672/15.

2. In relation to the victim BM:

1. H82442585/9: Aggravated sexual assault (victim under the age of 16 years) contrary to s 61J(1) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years’ imprisonment. The offender asks the Court to take into account one count of indecent assault person under 16 years of age (H82442585/1) contrary to s 61M(2) of the Crimes Act 1900 and one count of cause a child under 14 years to make child abuse material (H82442585/12) contrary to s 91G(1)(b) of the Crimes Act 1900 when passing sentence with respect to H82442585/9.

2. H82442585/10: Aggravated sexual assault (victim under the age of 16 years and assault occasioning actual bodily harm) contrary to s 61J(1) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years’ imprisonment.

3. H82442585/11: Aggravated sexual assault (victim under the age of 16 years) contrary to s 61J(1) of the Crimes Act 1900. This offence carries a maximum penalty of 20 years’ imprisonment. The offender asks the Court to take into account one count of indecent assault person under 16 years of age (H82442585/6) contrary to s 61M(2) of the Crimes Act 1900 when passing sentence with respect to H82442585/11.

3. In relation to the victim JJ:

1. H90662432/9, Count 1: Have sexual intercourse with child 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act 1900. This offence carries a maximum penalty of 16 years' imprisonment with a standard non-parole period of 7 years. The offender asks the Court to take into account two counts of intentionally sexually touch child older than 10 years and younger than 16 years (H90662432/2 and H90662432/3), contrary to s 66DB(a) of the Crimes Act 1900 when passing sentence with respect to H90662432/9.

2. H90662432/10, Count 4: Have sexual intercourse with child 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act 1900. This offence carries a maximum penalty of 16 years’ imprisonment with a standard non-parole period of 7 years. The offender asks the Court to take into account one count of intentionally sexually touch child older than 10 years and younger than 16 years (H90662432/5), contrary to s 66DB(a) of the Crimes Act 1900 when passing sentence with respect to H90662432/10.

3. H90662432/12, Count 8: Have sexual intercourse with child 10 years or older and under 14 years contrary to s 66C(1) of the Crimes Act 1900. This offence carries a maximum penalty of 16 years' imprisonment with a standard non-parole period of 7 years. The offender asks the Court to take into account one count of intentionally sexually touch child older than 10 years and younger than 16 years (H90662432/8), contrary to s 66DB(a) of the Crimes Act 1900 when passing sentence with respect to H90662432/12.

4. Ex officio – count 10: Intentionally sexually touch child 10 years or older and under 16 years contrary to s 66DB(a) of the Crimes Act 1900. This offence carries a maximum penalty of 10 years' imprisonment. The offender asks the Court to take into account one count of intentionally sexually touch child older than 10 years and younger than 16 years (H90662432/6), contrary to s 66DB(a) of the Crimes Act 1900 when passing sentence with respect to Count 10 – ex officio.

2. An agreed table with the various offences and maximum penalties, with corresponding facts and Form 1 offences, is annexed to these remarks.

3. The maximum penalty for each of the offences acts as a sentencing guidepost or reference point and reflects the seriousness of each of the offences.

4. Section 54A(1) of the Crime (Sentencing Procedure) Act 1999 (CSPA), provides that the standard non parole period is that which is included in the table of provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence that falls within the middle range of objective seriousness taking into account only the objective factors affecting the relative seriousness of the offence. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The fixing of a non-parole period is only one aspect of the task when determining what is an appropriate sentence.

5. With respect to the offences against the victims BM and EA, the offender was 15 and 16 at the time of the offending. If a court is sentencing an offender who was under 18 years at the time a standard non-parole period offence was committed, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (CSPA) does not apply pursuant to s 54D(3). The Court is to “disregard [the standard non-parole] … entirely” and even “oblique usage … entails error”: BP v R (2010) 201 A Crim R 379 at [36]; citing McGrath v R (2010) 199 A Crim R 527 at [37], [60]; AE v R [2010] NSWCCA 203 at [23]. Accordingly, the standard non parole period does not apply with respect to the offending against BM and EA. It is only applicable to the three offences contrary to s 66C(1) with respect to the offending against JJ (counts 1, 4 and 8).

6. The guilty plea was adhered to at sentence hearing.

7. Admitted on behalf of the Crown were the following:

1. Exhibit C1 - Signed indictment dated 3 April 2025 (H90662432)

2. Exhibit C2 - Form 1 (H90662432)

3. Exhibit C3 - Agreed Statement of Facts (H90662432)

4. Exhibit C4 - Victim Impact Statement of JJ

5. Exhibit C5 - Charge Certificate (H82442585)

6. Exhibit C6 - Form 1 offences (H82442585)

7. Exhibit C7 - Agreed Statement of Facts on Sentence for victims EA and BM (H96721672, H82442585)

8. Exhibit C8 - Victim Impact Statement of BM

9. Exhibit C9 - Charge Certificate (H96721672)

10. Exhibit C10 - Form 1 offences (H96721672)

11. Exhibit C11 - Criminal History

12. Exhibit C12 - Custodial History

13. Exhibit C13 - Charge Summary Table

8. Admitted on behalf of the Defendant were the following:

1. Exhibit O1 – Report of Dr Sharon Klamer dated 20 June 2025

2. Exhibit O2 – Letter of Peter Green dated 2 April 2025

3. Exhibit O3 – Letter from CB

4. Exhibit O4 – Letter from CP

Agreed facts – victim EA

9. The offending involving this victim occurred between November 2014 and November 2016. The victim was born in November 2004 and was aged between 10 and 11 (the latest date range for any of the offences being the day prior to the victim’s 12th birthday). At the time of the offending the offender was aged between 14 and 16.

10. At the time of the offending the victim was friends with the offender's younger sister. The victim would regularly attend the offender's home to play with his younger sister, with them all living in the same street.

11. In 2018 the victim recorded on her iPhone a detailed account of the incidences of sexual abuse committed on her by the offender. They were saved in the "notes" application, before showing it to her then boyfriend. In February 2024, the victim disclosed the abuse to police. The police subsequently assisted the victim access her previous "notes", having lost them due to the damage to her phone.

Sequence 4: Indecent assault person under 16 years

12. When the victim was aged 10, she recalled staying overnight at the offender's home, having a sleepover with the offender's younger sister. During the night the victim recalled waking up to find the offender in bed with his arm around her, saying "You know I know you are awake, right?" before kissing the victim. The victim did not move whilst the offender continued to "make out" with the victim. The victim recalled not knowing what to do as she had never done anything like that before, so she did not move her mouth and stayed still. This lasted 4 to 5 seconds and ended as the victim did not kiss the offender back.

13. The following morning the offender told the victim they were now dating.

Sequence 5: Indecent assault person under 16 years of age

14. Later that same day the offender asked the victim to come with him to his bedroom so he could show her something. Once inside the offender sat down and instructed the victim to sit on his lap. He thereafter hugged the victim and started to move her body up and down on his penis, asking "Can you feel that?" When the victim asked what it was, the offender told her it was his dick. The victim recalled feeling a lump, being the offender’s penis. The offender told the victim that he had a “boner” and explained what it was. The victim recalled having thoughts at the time that what was happening was weird, not normal and needing help.

Sequence 6: Indecent assault person under 16 years of age

15. The victim recalled over the following two weeks, when aged 10, the offender continued to do the same kinds of things to the victim, touching her breasts, bottom and vagina whilst continuing to make the victim touch his penis.

Sequence 14: Aggravated sexual assault (victim under 16 years)

16. After being touched by the offender for a period of two weeks, there was a further occasion when she was in his bedroom sitting on top of him having been instructed to do so. She was facing the offender whilst the offender was touching her bottom with his hands over her clothes following which he asked the victim "Can I finger you?" and said "You will like it." The victim told the offender no because "she was only 10 years old and too young". Despite this, the offender placed his hand inside the victim's loose fitted shorts, putting his hand up her shorts and moving her underwear to one side. Despite the victim saying "don't", the offender digitally penetrated the victim with his finger. After pulling his finger out he then rubbed the outside of her genitals. Shortly thereafter the victim left the bedroom.

Sequence 8: Common assault

17. About a week later, the victim recalled the offender's younger sister finding out about the sexual abuse towards the victim. The victim was reluctant to tell the offender’s sister however ultimately, after several months of continued sexual abuse, it was disclosed to her. The following day the offender approached the victim, punching her in the side of the ribs saying "Why the fuck would you tell my sister" and "Don't say nothing else". This assault was not an isolated act. The offender thereafter began physically assaulting the victim when she refused to do things the offender wanted her to do by punching her in the chest, back and arms.

Sequence 20: Common assault

18. Sometime in August 2016, approximately two weeks prior to the offender's birthday, the victim attempted to "break up" with the offender. She told him she didn't want to keep doing the things he was making her do and that they just be friends. The victim recalled the offender crying at the time before physically hitting the victim and making her stay in his bedroom for almost an hour. The victim at the time was still 10 years old.

Sequence 15: Aggravated sexual assault (depriving the victim of her liberty)

19. The following day the victim was walking to the offender's house with the offender's younger sister, the offender and the offender’s cousin and victim JJ. The offender became jealous of the interaction between the victim and JJ. The offender then yelled at the victim and locked her in his bedroom with him. The offender's younger sister unsuccessfully attempted to gain access to the bedroom. When the offender made victim perform oral sex on him, she said "No, I don't want to do that". The offender held the victim’s hair, pushed her head down, and continued to hold her hair in this way while she was made to perform oral sex on him.

20. The circumstance in which the offender was in his room and made the victim perform oral sexual acts on him was not an isolated act but continued over several months thereafter, with another incident occurring where the offender locked the victim in his bedroom for two hours, causing the offender’s (now deceased) mother to attempt to gain access to the room. Whilst this was occurring the victim attempted to jump out of the bedroom window, causing the offender to let the victim go.

Sequence 16: Indecent assault person under 16 years of age

21. The offender made the victim sit on top of him whilst in his bedroom, with the offender wearing underpants and a shirt. The offender had hold of the victim's hips, moving her back and forth on his penis. She observed a wet patch on the front of the offender's underwear and shirt which made her think he had ejaculated.

Sequence 11: Sexual intercourse with person aged 10 years or over and under 14 years

22. After a further two months, the victim slept overnight at the offender's house the night before the offender and his family were due to move. The offender made the victim get completely naked and "suck his dick". The offender said to the victim "This will be the last time". The victim further recalled the offender pushed her head down to perform oral sex on him when his penis smelt so bad she almost vomited.

Sequence 18: Indecent assault person under 16 years of age

23. After the act of oral sex, the victim went to get dressed but the offender told her to sit on him. Neither had underwear on. The offender placed his hands on the victim's hips and moved her back and forth on top of his penis, which was rubbing against the external genitalia of the victim. When the offender moved the victim off him, she saw that he had ejaculated on himself.

24. There were two witnesses who saw an occasion when the victim left the offender’s bedroom to go to the bathroom, looking distressed and rinsing her mouth with water.

Sequence 13: Incite act of indecency – victim under 16 years

25. The victim recalled occasions when she was playing at the offender’s home when the offender would play a game where he would chase the victim and his younger sister around the house. He would then physically pick up the victim and take her into his bedroom and lock the door. On one of those occasions, when the victim was 11 years old, the offender picked up the victim and took her into his bedroom where he closed and locked the door. The victim stood at the end of the offender’s bed whilst offender was sitting on the end of the bed. The offender thereafter exposed his penis to the victim and motioned for her to move closer. The victim walked to the bedroom door to leave but was blocked by the offender who told the victim not to tell anyone about what had happened. There were many other occasions in similar circumstances where the offender would pick up the victim and take her into his bedroom.

Sequence 2: Indecent assault person under 16 years of age

26. On one of these occasions, when the victim was aged 11, the offender took the victim into his bedroom and exposed his penis. He then grabbed the victim's hand and placed it on his penis where he held it using his own hand. The offender used the victim's hand to masturbate his penis until ejaculating.

27. The victim recalled this happening many times where the offender would close bedroom door when the victim was in his bedroom to make her masturbate his penis. The door was closed so that others would not be aware of what was occurring. The victim also recalled many occasions where she was in the offender’s bedroom with the offender with the door closed. The offender would lie on his bed fully clothed, getting the victim to sit on top of him, where he grabbed the victim's thighs and moved her back and forth over his penis. The victim recalled feeling the offender’s penis through her clothes whilst doing it. On some occasions when the victim attempted to get off the offender, the offender would grab the victim harder or use more force to hold her in place.

Sequence 12: Take or detain person with intent to commit serious indictable offence

Sequence 19: Indecent assault person under 16 years of age

28. The last time something happened with the offender was when his family was living in another suburb, with the victim being 11 at the time. The offender was 16. The offender's younger sister had asked the victim to stay the night, confirming that the offender would not be present. When she arrived, the offender was present. That night the offender locked the victim in his room and made the victim sit on him despite not wanting to do so. They were both fully clothed, with the offender using his hands to rub the victim back and forth over the top of his penis. This did not last long as the offender's younger sister was knocking on the door and yelling for the victim to be let out. The offender’s younger sister was also attempting to get through the bedroom window, but it was too high and she was too short. Eventually the offender let the victim go.

29. When the victim was aged 12 or 13, she made a disclosure to a friend of the alleged offending but did not wish to talk about it further.

Agreed facts - victim BM

30. The offending involving BM commenced shortly after her birthday in October 2015 (aged 12) with the latest date for the range of offending being the victim’s 14th birthday.

31. In late 2015, just after the victim's 12 birthday, the offender contacted the victim by the social media app "Snapchat". They continued to message each other and exchange personal details, noting that they had mutual friends. During the messages the victim informed the offender she was 12 with the offender being 15 at the time.

32. Shortly after the victim's 12th birthday she received a message from the offender asking to meet at an underground bridge in Flinders. She was reluctant to do so given she had had an orthodontic retainer plate fitted earlier that day but ultimately agreed. The two met at the agreed location with the victim dressed in her school uniform. The offender hugged the victim and began kissing her on the mouth. The victim pulled back stating "I'm sorry, I don't know what to do." The offender stated, "It's alright". She had her back to the wall and the offender began kissing her again for a short time before taking the victim's hands and placing it on his erect penis over his clothes.

Sequence 1: Aggravated indecent assault - victim under 16 years

33. The offender then pulled his penis out of his pants and placed the victim's hand on it. The victim continued to leave a hand on the offender’s penis as she did not know what to do. A short period thereafter, the offender ejaculated. The two left in opposite directions.

34. The offender and victim continued to message each other on the application where the offender informed the victim they were now in a relationship and that she could not tell anyone about it.

Sequence 12: Cause a child under 14 to produce child-abuse material

35. Shortly after this first meeting, the offender began asking the victim (aged 12) to send photographs of her vagina and breasts which included her face. The victim complied with the request. The offender also requested the victim to record herself performing sexual acts upon herself, ensuring that her face was visible in the video recording. The victim carried out this request and sent the video via the same application. The victim thereafter sent several sexually explicit photographs and videos of herself to the offender over a two-week period. The victim received sexually explicit photographs and videos from the offender’s Snapchat account depicting a person she believed to be the offender masturbating his penis. Whilst the material never depicted the face of the offender, she did recognise him by reference to a ring that he wore.

36. The offender thereafter began threatening the victim that he would send the sexually explicit photographs and videos to the victim's mother if she refused to perform sexual acts upon him or refused to send more sexually explicit photographs or videos. The victim continued to see the offender, after the first meeting, over a two-year period, more frequently during the school term unless during holidays. On each occasion the victim recalled she would always perform oral sex on the offender at his request and it was always the same thing. On some occasions the offender would also digitally penetrate the victim’s vagina before, during or after she performed oral sex on him. The victim was able to recall and particularise specific incidents which occurred over that two-year period.

Sequence 9: Aggravated sexual assault - victim under 16 years

37. The victim met the offender at a particular reserve following which they walked along the bike track towards an old jetty. Once they arrived the offender pushed the victim against a tree and began kissing her before he lay down on the ground, exposed his penis and asked the victim to have sex with him. The victim refused so the offender stood up and said "You don't deserve anything unless you make me cum" and "You wouldn't want these photos being sent your mum, would you?" The victim, fearful of the prospect of the material being forwarded to her mother, performed oral sex on the offender. After approximately five minutes performing oral sex, the victim stated that her jaw was hurting. The offender said "Keep going, you haven't even fucking made me cum." Despite the victim stating that she had to be home and she could not be late, the offender pushed the victim's head further down on his penis and began thrusting his penis in and out of her mouth with force, causing his penis to hit the back of her throat. The offender thereafter ejaculated in the mouth of the victim and over her school shirt that she was wearing.

Sequence 10: Aggravated sexual assault - occasioning actual bodily harm

38. The victim recalled another occasion where she met the offender when she was 12 or 13 years old. This was in circumstances where the victim was having a sleepover at her grandmother's house and was messaged by the offender asking them to meet. The victim told the offender that her grandmother was not going to let her out following which the offender begged her to meet him, stating he would kill himself if she didn't.

39. The two met thereafter, with the victim telling her grandmother that she was taking the dog for a walk. Having met in a particular reserve the two spoke for 20 to 30 minutes, with the victim attempting to console the offender and hugging him. The offender began immediately kissing the victim before moving his hand between the victim's legs, moving her underwear to the side. The victim told the offender "No, I don't want to do this right now" and "I can't be out long, please no, not today." The offender responded, stating "It will just be quick" before forcing his fingers into the victims vagina causing immediate pain. The victim told him to stop as it hurt. Despite this, the offender continued to insert his fingers into the victim’s vagina for 5 to 10 minutes which caused the victim to start bleeding from her vagina. The offender, noticing the blood, stopped. The victim became scared at the sight of blood and immediately left to go home. Whilst walking home the victim continued to bleed from her vagina, causing bloodstains on the dress she was wearing.

Sequence 6: Aggravated indecent assault - victim under 16 years

40. Last time she met the offender at a particular reserve was when she was 13. The offender messaged her stating he was catching a bus and would meet her at the usual spot. When they met the victim confronted the offender about having possession of explicit photographs and videos and wanting him to delete them. The victim unsuccessfully attempted to take the offender's mobile phone from him. He stated "Don't touch my phone, I'm not deleting those photos". The offender further said to the victim "I’ll only delete these photos if you suck my dick. Do it properly, I won't delete them unless you make me cum." The offender thereafter exposed his penis and began masturbating whilst the victim stood in front of him. The offender grabbed the victim's hand and placed it upon his penis and pulled her towards him.

Sequence 11: Aggravated sexual assault - victim under 16 years

41. The victim then got on her knees, performing oral sex before he ejaculated into her mouth. He thereafter said "I'm not deleting these photos" before leaving the victim at the reserve crying. After a short time, the victim walked home from the reserve, blocking the offender on all social media accounts.

42. Over time, the victim received multiple invites to newly created Instagram accounts with the names "I miss you [victim’s name]" and "Stop ignoring me [victim’s name]", which the victim continued to block until the day of her 14th birthday.

43. On the victim's 14th birthday, the offender called her from a new number, wishing her a happy birthday before attempting to have phone sex with her. The victim ended the call, blocking the number. This was the last time the victim spoke to the offender.

44. About six months after the victim first met the offender and the sexual abuse began, the victim had disclosed to a friend that she was being blackmailed with nude photos she had sent to the offender. The offender was arrested in April 2024 and declined to participate in a recorded interview.

Agreed facts - victim JJ

45. The victim was aged 13 at the time of the offending, with the offender aged between 18 and 19. The offender, who was the victim's cousin, came to live with the victim's family following the death of his mother in early 2019. The offending occurred between February 2019 and February 2020.

Incident one: The victim's bedroom

Count 1, sequence 9: Sexual intercourse with a child aged 10 to 14

46. Shortly after the victim's 13th birthday the victim was in her bedroom playing on the PlayStation when the offender walked in to help with her game. The offender then hugged the victim. The victim hugged the offender back. The offender then placed his right hand into the pants of the victim and was using his fingers to rub the inside and outside of her vagina, the victim describing it as going on “for ages" but probably two to three minutes. As the offender was "fingering" the victim he asked whether she liked it and whether it felt good. He then said "Don't answer that. Don't say no." The victim was crying and scared and did not know how to make the offender stop.

Count 2, sequence 2: Sexually touch child 10-16 years

47. The offender then grabbed the victim's hand and placed it on his penis on the outside of his clothes. The offender would not allow the victim to pull her hand away despite her attempts to do so and remained holding her hand. The offender then used the victim's hand to rub against the offender's penis on the outside of his clothing.

Count 3, sequence 3: Intentionally sexually touch child 10-16 years

48. The offender then removed his hand from the pants of the victim, reached behind using his hand to rub her butt on the inside of her clothing. The offender then removed his hand from the victim's pants and placed it under the victim's jumper and her crop top, squeezing the victim's breast and running his finger around the victim's nipple. He continued to do this until footsteps were heard coming towards the bedroom.

Incident 2: The bathroom

Count 4, sequence 10: Sexual intercourse with a child aged 10-14

49. This incident occurred one or two weeks after the first incident, again at the victim's home. She had been getting ready for bed and was wearing loose yoga type pants and a jumper with no bra or underwear. As the victim walked from her bedroom to the toilet, the offender came out of the bathroom and hugged the victim before placing his hand inside her pants and rubbing his hand against her vagina. The offender then placed his fingers inside her vagina and asked the victim if she liked it and if she liked him doing it that way.

Count 5, sequence 5: Intentionally sexually touch child 10-16 years

50. Whilst performing the act constituting count 4, the offender placed his other hand up the victim's jumper, rubbing her breasts and running his finger around her nipples. The offender then asked to kiss the victim, in response which she moved her head to the side so he was unable to do so. The victim hugged the offender to prevent him trying to kiss her again, and then pushed the offender away saying "I need to pee" to make him stop. The offender thereafter removed his hands, and the victim walked into the toilet and stayed there until she heard the offender's bedroom door close.

Incident 3: Lounge room

Count 6, sequence 6: Intentionally sexually touch child 10-16 years

51. The victim was in her home alone with the offender around the same time as the bathroom incident. Whilst victim was sitting on the floor watching a movie the offender came and sat next to her. He placed his hand under her shirt and squeezed her breast and ran his fingers around her nipples.

Count 10: Intentionally sexually touched child 10-16 years

52. The offender then put his hands into the victim's pants, rubbing her genital area, whilst grabbing the hand of the victim which he used to rub against his penis. The offender stopped and removed his hand from under the victim's shirt. He has then pulled the pants and underpants of the victim down to her mid-thigh. The victim was grabbing her pants to stop the offender from pulling them down. The offender has pulled his penis out of his pants without pulling his pants down. The offender pushed the victim back towards the lounge and was attempting to get on top of her. The offender stopped as a headlight was seen coming through the window. The victim pulled up her pants and ran into her bedroom but did not say anything to anyone as she feared the offender.

Incident 4: The offender’s bedroom

Count 8, sequence 12: Sexual intercourse with a child 10-14 years

53. The offender was in his own bedroom in the house occupied by the victim when the victim entered the room asking for help with a game she was playing. The offender pulled the victim onto his lap, and she could feel his penis against her butt. In response she moved forward. The offender reached around the victim placing his hand down the front of her pants rubbing her vagina and thighs. He then inserted his fingers inside the victim’s vagina.

Count 9, sequence 8: Intentionally sexually touch child 10-16 years

54. The victim had managed to stand up, but the offender grabbed her with the victim facing the offender. The offender placed his hand back inside the victim's pants, rubbing her vagina on the inside. He placed his other hand up to shirt of the victim rubbing her breasts. This stopped when the offender was receiving a call through group chat on the game he was playing.

55. The victim disclosed that there were many other occasions where the offender touched her vagina and breast however she could not recall specific details of each incident. She stated however that it happened many times when the offender would come into her bedroom when no one else was around.

56. The offender was arrested on 21 September 2022 and declined to participate in an electronically recorded interview.

Victim impact statement - BM

57. BM said that due to the abuse she suffered at the hands of the offender, she has changed completely from an empathetic, loving and independent child to one feeling isolated, manipulated and experiencing sleepless nights, worried about the abuse inflicted on her rather than on the things she loved most, like her school, friends and any “regular childhood".

58. She referred to the fact that due to the abuse she had to lie, which was a significant burden. She experienced severe panic attacks when having any communication with the offender and indeed suffered other panic attacks in any event when her phone rang or received messages.

59. Despite over six years having elapsed since the offending, she continues to experience crippling panic attacks. She felt the offender conditioned and manipulated her and that made it feel like it was normal. She feels physically sick when thinking of the manipulation and abuse perpetrated by the offender.

60. Despite ambitions of being a medical practitioner, due to the psychological harm inflicted she did not have the mental capacity to finish school and dropped out at the age of 14. She was forced to make ends meet from that time. One of the hardest things for her was to learn to communicate her needs without fear of being abandoned or made to feel wrong, embarrassed or exposed.

61. BM referred to the offender taking her innocence, stability, sense of self and sense of what was normal.

Victim impact statement – JJ

62. JJ continues to experience anxiety, nightmares, flashbacks and not knowing who she is or what is going on. Since the abuse JJ has been diagnosed with anxiety, post-traumatic stress disorder, depression and continues to see a psychologist and needs medication. She still thinks about the offender every day and fears leaving the house and living day-to-day in the community.

63. JJ referred to the fact that it broke her family when she told them of the abuse. As a result of the abuse, JJ felt isolated from family and friends as she was made to hold onto the secrets of what the offender had done to her. She lost trust in other people. It tore her family apart and destroyed relationships with the people she loved.

64. Whilst JJ was working in childcare the stress of the prosecution had made it extremely difficult for her to maintain employment to the point where she could not leave the house. She now finds it difficult to work with children, finding a distressing and traumatising thought process about how vulnerable children are. She also continues to suffer financially due to the cost of medication and travelling for therapy.

Subjective evidence

Report of Peter Green – psychologist

65. Mr Green confirmed that he had been treating the offender for anxiety and depression. The psychologist was pleased with the offender’s attendance, perceived honesty and progress. It was noted that a person such as the offender suffering from anxiety and depression may react badly to a custodial sentence which may impact upon his overall psychological well-being. He expressed willingness to continue to support the offender.

CP

66. CP has been the offender’s partner since June 2019, having met online in December 2018. She observed that the pending criminal proceedings had impacted significantly on the offender’s mental health. However, she considered the offender to be “caring and gentle". CP referred to the offender’s personal history otherwise traversed in the psychologist’s report. It was noted that the offender was seeking out the assistance of a psychologist and had otherwise strictly complied with his bail conditions

CB

67. CB is the offender’s partner's mother. A statement was provided, and she gave evidence at the sentence hearing. She was aware of the offences and noted that the offender had struggled with his mental health. She described the offender as having a "gentle nature" and was thoughtful and understanding. CB also referred to the offender’s background. She attested to the offender’s work ethic and the significant stress arising from the criminal proceedings. She similarly confirmed that the offender had abided by all relevant bail conditions.

68. She confirmed that the offender had the full support of her daughter and extended family and that they would continue to support the offender throughout his period of incarceration. This was despite knowing the about the offences for which he was to be sentenced involved very serious sexual violence. She spoke of the closeness of the relationship between the offender and her daughter and that she had not witnessed any violent or coercive behaviour by the offender towards her daughter. CB had been aware to an extent of the offender’s childhood and that he had not been in receipt of a great deal of family support. They would continue to support the offender throughout his period of incarceration.

Report of Dr Sharon Klamer – consultant forensic psychologist

69. Dr Klamer assessed the offender in June 2025 via audiovisual link from a correctional facility. The offender described a disadvantaged developmental period during which he was exposed to parental and caregiver instability and abuse, illicit substance abuse, frequent house relocations, financial stress and use of antisocial behaviours, and foster care placement by DOCS, during which time the offender recalled being locked in an aviary by his foster mother. He was subjected to sexual abuse by another male at a caravan park where they were residing. There were often periods where there was a lack of food in the house resulting in him and his sister stealing food from local shops to support themselves. At the age of 17, the offender’s mother passed away from an accidental drug overdose. In more recent times, since 2019, the offender has had some support through his partner and their family.

70. Unsurprisingly, the offender’s schooling was significantly interrupted given his family circumstances. At one stage in year 6 he recalled attending a behavioural school in Bathurst when his family relocated there. He left school prematurely during year nine and has completed various TAFE courses since. He had managed to secure and maintain stable employment over some years in the retail industry prior to his arrest for these offences. He had recently sought to engage with a psychologist.

71. Whilst there was some suggestion the offender may have suffered from oppositional defiant disorder and attention deficit hyperactivity disorder, there was insufficient information to enable a diagnosis of these conditions. However, the offender was diagnosed with major depressive disorder. The psychologist was satisfied that this disorder was present prior to and during the commission of the relevant offences. Dr Klamer considered that this condition likely contributed to the offending in that the offender was attempting to cope with his underlying negative feelings in maladaptive and anti-social manners.

72. The offender “partially" accepted responsibility for his actions, acknowledging what he did at the time was wrong. The offender demonstrated some insight into the potential impact of his offending on the victims, referring to “the possibility" of long-term effects on their mental health. The psychologist, however, observed that the offender externalised responsibility for his actions, expressing the view that they were “consenting, intimate and sexual interactions". There was further possible externalisation of responsibility to a “higher than normal testosterone level."

73. The psychologist concluded that the offences were committed on the background of significant developmental trauma which impacted the offender’s development of prosocial problem-solving, coping and sexual scripts. Given the offender was suffering from major depression at the time of the offending, he was likely to gain some benefit from perceived sexual and nonsexual intimacy needs when committing the offences, perceiving he was in a relationship with the victims and those victims “enjoying the behaviours also." Further, the offender’s emotional regulation deficits and underlying tolerance of antisocial behaviours were likely to be evident by reason of engaging in physical violence to control the victims on occasions and ignoring their request to cease the offending.

74. The offender’s underlying psychological difficulties were likely compounded by the unexpected death of his mother in 2017 from an accidental overdose. However, it should be noted that the offending with respect to two of the three victims occurred prior to his mother's death.

75. On the STATIC-99R assessment, the offender was assessed at above average risk for reoffending. On the Dynamic Risk Assessment, the offender was assessed as posing a moderate to high risk of reoffending. The offender’s primary risks related to deficits in intimacy skills, sexual self-regulation, general self-regulation, problem-solving and coping, developmental challenges, exposure to antisocial behaviours, cognitive distortions supportive of offending, and limited social network at the time of the offending. Future risks revolved around committing offences against female children known to him such as through family friends or his own children when feeling socially isolated, unsupported, during conflict or deterioration in his support network or due to difficulties coping with lifestyle stressors.

The offender’s evidence

76. The offender acknowledged that he committed a series of offences against three victims and agreed with the facts tendered on the sentence hearing. The offender gave evidence that he had told the psychiatrist the truth and agreed with what was contained in the report. The offender acknowledged what he had done, claiming that he thought about it every day and that he hated what he had put the victims through. He took “full responsibility" for what he had done and wished that he could take it back. He gave evidence that there was no reason to excuse what he had done and that his offending had caused ongoing harm to each of the victims.

77. He agreed with the proposition that the offending occurred during a period which was not a “happy" time. The offender reiterated the history contained in the psychologist’s report including that his mother used drugs and did not provide for him or his siblings. His mother was not there as she should have been. There was a period, during his parents’ separation, when he was placed into foster care. There was one placement for a period of approximately six months to one year where he confirmed that at times he was punished by being placed into a bird aviary.

78. The offender’s parents fought a lot whilst together although they were not physically violent to each other. Following the parents’ separation there was minimal contact with his father although he has seen him in more recent times. His mother started using heavier drugs involving needles when with new partners. There was often no food in the home as his mother used money to fund her drug habits. He would steal food for basic sustenance from the age of 12 or 13 until 17. His mother had 2 to 3 partners and they would all use drugs. He was encouraged to steal not only by his mother but also her partners. There were a “few occasions" when the offender was on the receiving end of physical abuse including using a broom or being hit directly. Some of his mother's partners would physically assault him. There were various occasions where the family resorted to staying in a caravan and there was a period where they lived out of his mother's car.

79. The offender left school at year 9 and had been subject to bullying for what he referred to as “petty school stuff". After leaving school he generally stayed at home. His mother died when he was 17 as a result of illicit drug use and was told of her death whilst staying at his cousin's house. The offender stated that he did not seek any psychological support after his mother's death and felt he continued to struggle emotionally as a result.

80. Thereafter he lived at his aunt's house, being the location of some of the offending. This was in circumstances where his father took custody of his younger sister. He felt somewhat neglected at his aunt's house where there was not much support from her. The offender stated that he was required to clean various rooms in the house and pay board. He at times was asked for money which was never returned. He still maintained some contact with his extended biological family including his aunt and uncle, grandfather and father.

81. The offender referred to the relationship with his present partner and that they lived together until his incarceration. His partner and her parents continue to be supportive including regular in-person visits or via video calls. Upon his release he intends to work in retail, hopefully marry his present fiancé and create a life of his own. He accepted that he would engage in any treatment as proposed. The offender referred to periods on bail during which he was subjected to a curfew between 10:00 PM and 6:00 AM. He denied any breach of bail.

82. In cross-examination the offender was asked questions about the history provided to the psychologist. In response to questions from the Court the offender acknowledged that the psychologist’s report was read to him in full. He agreed that what was contained in the report was an accurate account of what he told the psychologist and that it was truthful. The offender was specifically asked questions on the history recorded in the psychologist’s report that he “partially accepted responsibility for his actions" and that in his discussions with the psychologist he externalised responsibility for his actions, having expressed the view that the conduct constituting the various offences with the young victims were “consenting, intimate and sexual interactions".

83. When it was suggested to the offender that the contents of the report, arising from a consultation with the offender only two weeks prior to the sentence hearing, was inconsistent with his now acceptance of full responsibility, the offender denied this was the case. He sought to explain the apparent inconsistency by suggesting that those were his feelings at the time of the offending and that he was not asked the specific questions which elicited his responses whilst giving evidence.

84. In circumstances where the court was cognisant of the contents of the psychologist’s report prior to the sentence hearing, the offender’s evidence was scrutinised with some care. The offender’s explanation for the apparent inconsistencies was unconvincing. The offender’s explanation was inconsistent with the contents of the psychologist’s report where the offender was expressing his attitude towards the offending at the time of the psychological assessment.

85. It is clear from the contents of the report that the psychologist was asking the offender about his attitude towards the offending at the time of the interview. This finding is reinforced by the psychologist’s further opinion that the offender “presented with some ongoing distortions regarding the victim’s behaviours, minimising the severity of his actions, despite some evidence of insight and acceptance of responsibility” (emphasis added). The psychologist further observed that the offender “demonstrated some ongoing distorted cognitions that allowed the offending to continue, for example, viewing that he was in a relationship with each of the victims and that they were enjoying the sexual contact, open to it continuing” (emphasis added).

86. Similarly, the offender’s evidence, acknowledging the certain harm occasioned to each of the victims, was somewhat inconsistent with the statements to the psychologist of the “potential" impact on the victims and the “possibility" of long-term effects on their mental health. The psychologist recorded this history, undoubtedly on information provided by the offender, in the context of the offender saying that his conduct constituting the offences against the three young girls were “consenting, intimate and sexual interactions". The author further observed that the offender considered “he was in a relationship with each of the victims and that they were enjoying the sexual contact, open to it continuing”.

87. Further, the offender’s evidence that there was no reason to excuse his behaviour was also somewhat inconsistent with the psychologist’s observation of the offender’s possible externalisation of responsibility by attributing his behaviour to a “higher than normal testosterone level".

88. The offender was cross-examined on his apparent criticism of his aunt in circumstances where she had taken him into her care and provided a home following his mother's death. Further, the offender was claiming that the bullying to which he was subjected at school had impacted upon him in circumstances where he had inflicted upon each of the victims an even more significant form of bullying.

Submissions and consideration

Objective seriousness

89. Counsel for the offender contended that the offender’s age, particularly with respect to the offending against EA and BM, was relevant in the assessment of objective seriousness, in conjunction with or in addition to the mental health condition diagnosed by Dr Klamer. Counsel referred, in support of this submission, to the observations of the Court in BM v R [2019] NSWCCA 223, citing with approval Tepania v R [2018] NSWCCA 247 and R v AA [2017] NSWCCA 84.

90. I accept that with all the offences, but more so with respect to the earlier offences committed against EA (the offender being aged 14/15) that the offender’s age, in conjunction with the diagnosed major depressive disorder, should be taken into account in assessing the objective seriousness of this offending. This is particularly in the context of the offender’s age together with the opinion of Dr Klamer that the major depressive disorder contributed to the offending in that the offender was attempting to cope with underlying negative feelings in maladaptive and anti-social manners.

91. The victim EA was aged between 10 and 11 at the time of the offending whilst the offender was aged between 14 and 16. The victim was the friend of the offender’s younger sister. I accept that all the offences involving EA were generally unsophisticated, relatively spontaneous and did not involve any significant planning.

92. With respect to sequence 14 (aggravated sexual assault - victim under 16 years) the offence involved digital penetration of the victim’s vagina in circumstances where the victim specifically told the offender she did not want him to do so, given her young age (aged 10). The offender ignored the victim, placed his hands under her shorts and moved her underwear to the side. Despite the victim again saying no, the offender digitally penetrated the victim and thereafter rubbed the outside of her genitals. The offending occurred over a relatively short period and did not involve any physical violence or coercion beyond that required for commission of the offence. The victim was significantly below the age of consent of 16.

93. Sequence 15 (aggravated sexual assault – depriving the victim of her liberty and victim under 16) involved the offender yelling at the victim (aged 10) before locking her in his bedroom with him. The offence was one of fellatio with the victim being made to perform oral sex on the offender despite the victim expressly stating she did not wish to do so. It involved the offender holding the victim's hair and pushing her head down which he continued to do throughout the oral sex. The offending therefore involved the victim being locked in the bedroom and a degree of force being used on her to perform and continue the act. The offence involved two aggravating circumstances being age and deprivation of liberty. I find that this offence is more serious example of the range of offending contemplated by the section than sequence 14.

94. Sequence 11 (sexual intercourse person aged 10 years or over and under 16 years) occurred when the victim was aged 10, being at the lower end of the age range contemplated by the offence. The offending involved the offender making the victim fully undress before requiring her to perform oral sex. It involved a degree of force which made the offender almost vomit.

95. Sequence 2 (indecent assault person under 16 years) involved the offender taking the victim, aged 11, inside the bedroom and exposing his penis. The offender then grabbed the victim's hand placing it on his penis and held it there using his own hand before using the victim's hand to masturbate until he ejaculated. The offending involved a slight degree of force and maintaining that force during the relevant act. The victim was at the lower end of the age range contemplated by the offence.

96. Sequence 12 (take or detain person with intent to commit serious indictable offence) involved the offender locking the victim in his room with him and thereafter performing acts constituting the offence of indecent assault, being sequence 19 on a Form 1 for this offence. The serious indictable offence, being indecent assault on person under 16 years, is not the most serious of indictable offences contemplated by the section. I accept that the detention was relatively short and was impulsive.

97. I do not accept the offender’s submission that the fact the offending occurred in the home of a person (s 21A(2)(eb)) is irrelevant to the offending because the offences generally occurred in the offender’s bedroom. According to the agreed facts, the victim would regularly attend the offender’s home in circumstances where she would play with the offender’s younger sister. The victim was entitled to feel safe as a young girl attending the home of a friend where the offender resided. The fact that the offences occurred in the offender’s bedroom, as opposed to any other location in the home, does not render the particular circumstance of aggravation any less significant.

98. With respect to the offences committed against BM, the offender met the victim through a social media app when she was 12 years old and the offences occurred when she was between the ages of 12 and 13. The offender at the time was aged 15 to 16 years.

99. While messaging on of the "Snapchat" app the offender solicited from the victim sexually explicit photographs and videos, with a specific request that the victim's face be visible in the recordings. The offences for which the offender is to be sentenced occurred in the context of the offender threatening to expose the sexually explicit photographs and videos.

100. Considering this context in which the offending occurred, there was a degree of sophistication in the offending and involved coercion of a young girl who was even more vulnerable, not only by reason of her age, but by the fact that the offender had in his possession and threatened to expose the sexually explicit material if she did not proceed to his demands for his own sexual gratification.

101. Sequence 9 (aggravated sexual assault - victim under 16 years) occurred in a public area where the victim was pushed against a tree and kissed before the offender lay her on the ground, exposed his penis, and asked the victim to have sex with him. In the face of the victim's refusals, the offender made a denigrating remark before threatening to expose the sexually explicit material to her mother. The victim only agreed to perform oral sex on the victim due to the threat of the sexually explicit material being exposed. After performing oral sex for some five minutes, and in response to the victim complaining that her jaw was hurting, the offender told her to continue in circumstances where he had not ejaculated.

102. Despite the victim's ongoing protestations, the offender used a degree of force by pushing the victim's head further onto his penis and began thrusting in and out, causing his penis to hit the back of the victim's throat. Ultimately the offender ejaculated into the mouth of the victim and over her school uniform. The victim was aged 12 at the time, below the upper age bracket for the offence contemplated by some years. Whilst the offence involved a single aggravating circumstance (age) I am satisfied that this offence reflects more serious example of the range of offending contemplated by the section than sequence 14 involving the victim EA.

103. Sequence 10 (aggravated sexual assault - occasioning actual bodily harm, victim under 16) involved the offender pressuring the victim to leave her grandmother's home under threat that he would kill himself. Upon meeting in a public reserve, the offender began kissing the victim before moving his hands between her legs and moving her underwear aside. Despite the victim repeatedly telling the offender that she did not wish to engage in any sexual acts, the offender forced his fingers inside the victim’s vagina causing immediate pain. Despite the victim telling the offender to stop as it was hurting, he continued to insert his fingers into the victim’s vagina for 5 to 10 minutes to the extent that the victim started bleeding from her vagina. It was only the observation of blood that caused the offender to stop. The victim continued to bleed from the vagina causing bloodstains on the dress she was wearing.

89. The offence involves two circumstances of aggravation, being age and infliction of actual bodily harm. The victim was still several years under the upper age limit for the aggravating circumstance of age. The offending involved a degree of force in the face of the victim repeatedly saying no and occurred over a period of 5 to 10 minutes. I am satisfied that this offence reflects a more serious example of the range of offending contemplated by the section than sequence 14 involving the victim EA or sequence 9 above.

90. Sequence 11 (aggravated sexual assault - victim under 16 years) occurred in a public area in the context of the victim demanding that the explicit photos and videos of the victim be deleted by the offender. The offending occurred in circumstances where the offender promised to delete the photos if the victim performed oral sex on him and on a further condition that they would only be deleted if he caused her to ejaculate. The offending involved the victim getting on her knees and performing oral intercourse to the point of the offender ejaculating in circumstances where she believed the explicit material would be deleted. However, after ejaculating into the mouth of the victim the offender instead stated that he would not delete the photos before leaving the crying victim at the reserve.

91. The offences committed against JJ occurred when the victim was aged 13 and the offender was aged 18 and 19. The offender and victim were cousins, with the offender living in the home of the victim following the death of his mother. All the offending occurred in the victim's home, where the victim was entitled to feel safe, being a discreetly aggravating factor for the purpose of s 21A(2)(eb) of the CSPA. For the reasons already traversed, I do not accept that the fact that one of the offences occurred in the offender's bedroom would render this aggravating factor any less significant. I accept that none of the offences committed against JJ involved any significant degree of planning or was otherwise sophisticated or calculated.

92. With respect to count 1 (sexual intercourse with a child aged 10 to 14), the victim was towards the upper end of the age range contemplated by the offence. The offending involved the offender placing his right hand into the pants of the victim and digitally penetrating the victim for a period of approximately two or three minutes. At the time the victim was crying.

93. Count 4 (sexual intercourse with a child aged 10 to 14) similarly reflects the victim at an age towards the upper end of the age range contemplated by the offence. The offending involved the offender digitally penetrating the victim’s vagina for an undefined, although on balance, relatively short period.

94. Count 10 (sexually touch child between the age of 10 and 16 years) places the victim towards the middle of the age range contemplated by the section. It involved the offender, at the same time as the offence constituting count 6 (Form 1) was committed, the offender placing his hands into the victim's pants and rubbing her genital area whilst grabbing the hand of the victim and using her hand to rub against his penis. The offender then pulled the victim's pants and underpants of the victims to her mid-thigh before the offender pulled out his own penis, with the offender pushing the victim towards the lounge whilst attempting to get on top of her. The offending only stopped due to the presence of a headlight through the bedroom window.

95. Count 8 (sexual intercourse with a child aged 10 to 14) occurred when the victim was aged 13, being towards the upper end of the age range contemplated by the section. The offending involved offender pulling the victim onto his lap before the offender placed his hand down the front of the victim's pants, rubbing her vagina and thighs before inserting his fingers inside the victim’s vagina. The offending by all accounts was relatively short, involving the single act of digital penetration.

96. My assessment of objective seriousness of each of the offences committed against the various victims is reflected in the indicative sentences set our in these remarks by reference to relevant features of the offending as discussed.

Other sentencing considerations

112. With respect to the offending against EA and BM, the offender entered pleas of guilty at Wollongong Local Court and accordingly is entitled to a discount of 25% on the sentence that would otherwise be imposed, pursuant to s 25D(2)(a) of the CSPA. With respect to the offences against JJ, the offender was committed for trial. He was arraigned on 3 April 2025 and upon presentation of the amended indictment, entered pleas of guilty to the offences for which he is to be sentenced. Accordingly, the offender is entitled to a discount of 10% for the sentence that would otherwise be imposed pursuant to s 25D(2)(b) of the CSPA.

113. However, I accept that the offender’s guilty plea with respect to each of the victims is a further mitigating factor in that it reflects a willingness of the offender to facilitate the course of justice which further mitigates the sentence that would otherwise be imposed: Baden v R [2020] NSWCCA 23; Giles-Adam v R; Preca v R [2023] NSWCCA 122.

114. The offender’s age is not only relevant to the assessment of objective seriousness. It is also relevant to considerations of moral culpability, general deterrence and retribution. As McClellan CJ observed in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at paragraph [23]:

The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

115. The earliest of the offending occurred when the offender was aged 14, the offences being committed against EA. The last of the offences against this victim were committed when the offender was 16. The earliest offences committed against BM were when the offender was aged 15 and concluded when the offender was aged 16. The most recent offending against JJ occurred when the offender was aged between 18 and 19. I accept and have considered that immaturity did play a part in all the offending, but more so with the earlier offences.

116. I accept the history provided by the offender to the psychologist, consistent with the offender’s sworn evidence on the sentence hearing, that he suffered a not insignificant traumatic upbringing, initially arising from his parents’ separation and further compounded by his mother's illicit drug use, financial hardship and frequent moves. Further, the offender was exposed to additional physical abuse including that to which he was subjected at the hands of his mother's partner and later by his foster mother. I have also taken into account the impact from the death of the offender’s mother when he was 17.

117. I accept the opinion of Dr Klamer that there was a link between his significantly disadvantaged upbringing and his difficulties with emotional regulation and coping strategies resulting in his reliance on sexual coping as a primary form of intimacy seeking behaviour and social connection. Referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, Brereton JA (with whom Basten JA and Beech-Jones J agreed) in Hoskins v R [2021] NSWCCA 169 at [57] observed:

Although the High Court used the term “profound childhood deprivation” when referring to its enduring effects, what was said to require consideration was “an offender’s deprived background”. There is no magic in the word “profound”, and it is not necessary to characterise an offender’s childhood as one of “profound deprivation” before the principle is engaged. The principle is that social disadvantage may reduce an offender’s moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations, arising from the circumstances of social disadvantage.

118. I am satisfied that full weight should be given to the offender’s deprived upbringing such that his moral culpability ought to be reduced with less weight to be afforded to denunciation and general deterrence.

119. I further accept, consistent with my earlier remarks, the opinion of Dr Klamer that throughout the period of offending the offender was suffering from a major depressive disorder which likely contributed to his offending, being a way of coping with underlying negative feelings in maladaptive and anti-social manners. In the circumstances, I accept that the offender’s moral culpability is further reduced, again impacting the weight to be afforded to punishment and deterrence.

120. I accept the submission on behalf of the offender that the offending must be considered through the prism of the offender’s youth, deprivation and his mental disorder, with the offender’s youth having particular significance with the earlier offending. That said, it is well recognised that the offender’s youth is not only dependent upon biological age but rather from the perspective of an offender’s cognitive, emotional and/or psychological maturity: MW v R [2010] NSWCCA 324: Miller v R [2015] NSWCCA 86.

121. It is submitted that the offender has expressed genuine remorse for his offending and has demonstrated positive prospects of rehabilitation for the reasons identified at [50] of counsel’s submissions. True it is that the offender entered pleas of guilty at the earliest opportunity with respect to EA and BM, the offender has developed stable relationships with his partner and her family over some years since the last of the offending and that his behaviour during the more recent period has generally been law-abiding including compliance with strict bail conditions. These matters are all positive indicators as to the offender’s prospects of rehabilitation. I have also taken into account that the offender has, since the offending, engaged in paid employment prior to his incarceration.

122. However, for the reasons discussed above, the Court has some reservations in accepting the offender’s evidence of taking full responsibility for his behaviour, acknowledging the wrongdoing and recognising the certain harm occasioned to each of the victims who were subjected to significant sexual abuse during their most formative years. It is concerning that the offender continues to rationalise his offending as involving consenting intimate relations with the young victims who somehow enjoyed the sexual conduct to which they were subjected. This demonstrates continuing distorted perceptions by the offender despite having some years to reflect upon his behaviour through the perspective of an adult. This leads the Court to have some reservations as to the offender’s purported expressions of remorse and ultimately his prospects of rehabilitation.

123. That said I accept that in determining an appropriate sentence, given the age of the offender, the Court must still place considerable emphasis on the need to provide an opportunity for rehabilitation: KT v R [2010] NSWCCA 51.

124. I have considered the opinion of Dr Klamer as to the offender’s moderate to high risk of reoffending for the reasons referred to in her report. It would be hoped that the offender’s present support network will be available upon his release although, despite the best intentions of his partner and family, there is no certainty that will be the case. I find there remains a moderate risk of reoffending, noting Dr Klamer did have a history of the offender’s current support network, whilst acknowledging the evidence of the offender, his partner and his partner’s mother on the sentence hearing.

125. I accept the offender’s underlying mental health condition to which reference has been made will render a custodial sentence more onerous than would otherwise by the case.

126. The victim impact statements of JJ and BM provide a powerful insight into the impact that the offender’s abuse perpetrated on them has had. It is unsurprising in circumstances where the offender subjected the three victims to repeated and violent abuse during their most formative teenage years. The victim impact statements only serve to reinforce the permanent and untold damage inflicted upon these three young victims.

127. The courts have consistently recognised the harm inflicted on children that are victims of sexual abuse. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 the Court observed at [110]:

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

128. The significant impact on children of the trauma of sexual abuse on them is now statutorily enshrined in s 25AA of the CSPA. The absence of a victim impact statement from EA does not equate to drawing an inference that she has not been impacted by the offending.

129. Following the sentence hearing, the Court invited further submissions, given the offender was a child at the time of commission of the offences against two of the victims, on whether the Court should take into account that the offender had lost the opportunity to be dealt with under the Children (Criminal Proceedings) Act 1987. This was in circumstances where no such submission was made on behalf of the offender. The Court invited the parties to consider the observations of R A Hulme AJ in BB v R [2024] NSWCCA 13 at [107] that in the circumstances of that case, not dissimilar to the present matter, the Court considered that the failure to take this issue into account was of no practical significance.

130. In supplementary submissions on behalf of the offender, whilst it was acknowledged that such a consideration might apply, for the reasons identified in BB, the offender disavowed any submission that the delay in prosecution had given rise to a “lost opportunity" of having the matters dealt with under the Children (Criminal Proceedings) Act 1987. Counsel identified several reasons why it is likely, absent any delay, the Court would have, in any event, dealt with the offender according to law. This included the prospect of the offender having been sentenced under two separate regimes leading to a bifurcated approach that was impractical, the offences involved serious offences which made it more likely, absent delay, that the matters would have been dealt with according to law, that if the Court was to impose multiple control orders the maximum period would be three years, militating against the matters being dealt with under the relevant provisions of the Children (Criminal Proceedings) Act, in circumstances where the offending against the first two victims occurred between the ages of 14 and 16.

131. I consider the offender’s concession was entirely appropriate for the reasons traversed in the supplementary submissions and is consistent with the approach of the Court in BB. However, I otherwise accept that there has been significant delay, particularly in respect of the first of the offences occurring in 2014. I have taken into account the delay, including, consistent with the offender’s submission, that he has had the opportunity to an extent to demonstrate some stability since the most recent offending.

132. This will be the offender’s first time in custody. Given his underlying mental health disorder, the considerable support that will be available to the offender on his release, and the ongoing need to address the underlying causes for his offending, it is appropriate that a finding of special circumstances be made such as to reduce the non-parole period and provide for an extended period in the community on parole.

133. I am satisfied the s 5 threshold has been crossed and no sentence other than imprisonment is appropriate with respect to each of the offences for which the offender is to be sentenced. I am satisfied this is a matter for which the Court would impose an aggregate sentence in accordance with s 53A of the Crime (Sentencing Procedure) Act. It is necessary for the Court to indicate what sentences would have otherwise been imposed.

134. As previously noted, the offender asks that, when passing sentence on the various offences, the Court take into account the various offences on a Form 1. Generally, they are additional offences committed during or at the time of the primary offences for which the offender is to be sentenced. The offences on the Form 1 are generally serious offences carrying 10 years’ imprisonment or more with the exception of sequence 13, being attached to sequence 2 with respect to the offence committed against EA. In determining the appropriate indicative sentences, they provide some context for the offending for which the offender is to be sentenced. The offences on the Form 1 are also relevant to issues of specific deterrence and retribution, although lesser so given the offender’s subjective case, to which reference has been made. In all the circumstances the offences on the various Forms 1 call for a very modest impact on the sentence that would otherwise be imposed, while still conscious of the need for proportionality.

135. With respect to sequence 14 (EA), aggravated sexual assault, and taking into account three offences of indecent assault person under 16 years and one offence of common assault contained on a Form 1, an appropriate indicative sentence is two years seven months from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of one year 11 months seven days.

136. With respect to sequence 15 (EA) aggravated sexual assault, and taking into account one offence of common assault and one offence of indecent assault person under 16 years of age contained on a Form 1, an appropriate indicative sentence is three years' imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in an indicative sentence of two years three months.

137. With respect to sequence 9 (BM), aggravated sexual assault, and taking into account one offence of indecent assault person under 16 years and one offence of cause a child under 14 years to make child abuse material contained on a Form 1, an appropriate indicative sentence is two years seven months from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in an indicative sentence of one year 11 months seven days.

138. With respect to sequence 10 (BM), aggravated sexual assault, an appropriate indicative sentence is three years' imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in an indicative sentence of two years three months.

139. With respect to sequence 11 (BM), aggravated sexual assault, and taking into account one offence of indecent assault person under 16 years contained on a Form 1, an appropriate indicative sentence is two years five months from which is to be deducted 25% for the utilitarian value the plea of guilty resulting in an indicative sentence of one year nine months 23 days.

128. With respect to sequence 11 (EA), sexual intercourse with a person aged 10 years or over and under 14 years, and taking into account one offence of indecent assault person under 16 years contained on a Form 1, an appropriate indicative sentence is two years’ imprisonment from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in an indicative sentence of one year six months.

129. With respect to sequence 9 (count 1) (JJ), sexual intercourse with a person aged 10 years or over and under 14 years, and taking into account two offences of intentionally sexually touch child 10 years or older and under 16 years contained on a Form 1, an appropriate indicative sentence is two years two months from which is to be deducted 10% for the utilitarian value of the plea of guilty, resulting in an indicative sentence of one year 11 months 12 days with a non-parole period of 11 months.

130. With respect to sequence 10 (count 4) (JJ), sexual intercourse with a person aged over 10 and under 14, and taking into account one offence of intentionally sexually touch child 10 years or older and under 16 years contained on a Form 1, an appropriate indicative sentence is two years one month from which is to be deducted 10% for the utilitarian value of the plea of guilty resulting in an indicative sentence of one year 10 months 15 days with a non-parole period of one year.

131. With respect to sequence 12 (count 8) (JJ), sexual intercourse with a person aged over 10 years and under 14 years, and taking into account one offence of intentionally sexually touch child 10 years or older and under 16 years, an appropriate indicative sentence is two years one month from which is to be deducted 10% for the utilitarian value of the plea of guilty resulting in an indicative sentence of one year 10 months 15 days with a non-parole period of one year.

132. With respect to sequence 12 (EA), take or detain person with intent to commit serious indictable offence, and taking into account one offence of indecent assault person under 16 years contained on a Form 1, an appropriate indicative sentence is one year from which is to be deducted 25% for the utilitarian value of the plea of guilty, resulting in a sentence of nine months.

133. With respect to sequence 2 (EA), indecent assault person under 16 years, and taking into account one offence of commit act of indecency with person under 16 years, an appropriate indicative sentence is one year from which is to be deducted 25% for the utilitarian value of the plea of guilty resulting in a sentence of nine months.

134. With respect to count 10 (JJ), intentionally sexually touch child above 10 years and under 16 years, and taking into account one offence of intentionally sexually touch child 10 years or older and under 16 years contained on a Form 1, an appropriate indicative sentence is one year from which is to be deducted 10% for the utilitarian value of the plea of guilty resulting in a sentence of 10 months 24 days.

135. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ; R v Brown [2023] NSWDC 477 at [90].

136. This was again referred to in RA v R [2024] NSWCCA 149, where the Court noted that “the severity of the sentence increases at a rate that is not linear in comparison with the increase in length. That is, actual imprisonment for a lengthy period is more than twice as severe as imprisonment for half that time.”

137. I accept that with each of the victims there is some underlying factual commonality, calling for a reasonable degree of concurrency. However, the offending for which the offender is to be sentenced to an aggregate sentence occurred with respect to three victims over a period of more than five years, demanding some accumulation.

138. In all the circumstances I have determined an appropriate aggregate sentence is 10 years' imprisonment with a non-parole period of six years.

139. The offender has been in custody solely referable to the offences for which he is to be sentenced for a total of 141 days, and accordingly the sentence is to be backdated reflecting the period of 141 days.

Orders

152. I make the following orders:

1. The offender is convicted of the offences.

2. The indicative sentences are set out above.

3. I impose a sentence of imprisonment of 10 years commencing 27 March 2025 years to expire on 26 March 2035.

4. I impose a non-parole period of 6 years to expire on 26 March 2031.

5. The earliest date the offender is eligible to be released on parole is 26 March 2031.

Annexure

Sequence	Offence	Form 1
Section 61J(1) Aggravated sexual assault – maximum penalty 20 years’ imprisonment
Victim – EA
H96721672/14	The offender made the victim sit on top of him whilst in his bedroom. He touched her buttocks over her clothes. The offender then digitally penetrated the victim and rubbed the outside of her vagina.	H96721672/4 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. H96721672/5 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. H96721672/6 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. H96721672/8 Section 61 Common assault. Maximum penalty – 2 years’ imprisonment.
H96721672/15	The offender locked the victim in his bedroom and made the victim perform oral sex on him. The victim said, “no I don’t want to do that.” The offender pushed her head down. This continued over the next few months.	H96721672/20 Section 61 Common assault. Maximum penalty – 2 years’ imprisonment. H96721672/16 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment.
Victim – BM
H82442585/9	Whilst at Reddall Reserve East, the offender pushed the victim against a tree and began kissing her. He then lay down on the ground, exposed his penis and forced the victim to perform oral sex upon him. The offender threatened to tell the victim’s mother that she had sent sexually explicit material to him over “Snapchat” if she did not comply.	H82442585/1 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment. H82442585/12 Section 91G(1)(b) Cause a child under 14 years to make child abuse material. Maximum penalty – 14 years’ imprisonment.
H82442585/10	Whilst at William Carter Reserve, the offender began kissing the victim and moved her underwear to the side. The offender then digitally penetrated the victim’s vagina, causing pain and bleeding.	-
H82442585/11	During the same incident as sequence 6, the offender said to the victim that he would only delete the sexually explicit material of her if she performed oral sex on him until completion. The victim performed oral sex on the offender until he ejaculated. She left the reserve crying.	H82442585/6 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment.
Section 66C(1) Sexual intercourse with person aged 10 years or over and under 14 years – maximum penalty of 16 years’ imprisonment
Victim – EA
H96721672/11	Whilst at the offender’s house, the offender made the victim get completely naked and perform oral sex on him. The offender pushed the victim’s head down, which made her almost vomit.	H96721672/18 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment.
Victim – JJ (standard non-parole period of 7 years’ applies noting the offender was over the age of 18 years at the time of offending against JJ)
H90662432/9 Count 1	Whilst in her bedroom, the offender used his right hand to rub the inside and outside of the victim’s vagina for approximately 2 or 3 minutes. The victim was crying.	H90662432/2 Count 2 Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years. Maximum penalty – 10 years’ imprisonment. H90662432/3 Count 3 Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years. Maximum penalty – 10 years’ imprisonment.
H90662432/10 Count 4	Whilst at the victim’s house, the offender hugged the victim and placed his hands inside her pants and rubbed her vagina. He then digitally penetrated her vagina.	H90662432/5 Count 5 Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years. Maximum penalty – 10 years’ imprisonment.
H90662432/12 Count 8	Whilst at the victim’s home, the offender pulled the victim onto his lap. She could feel his penis against her buttocks. The offender then used his hand to rub her vagina and thighs down the front of her pants. He then digitally penetrated the victim’s vagina.	H90662432/8 Count 9 Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years. Maximum penalty – 10 years’ imprisonment.
Section 86(1)(a1) Take or detain person with intent to commit serious indictable offence – maximum penalty 14 years’ imprisonment
Victim – EA
H96721672/12	The offender locked victim in his bedroom.	H96721672/19 Section 61M(2) Indecent assault person under 16 years of age. Maximum penalty – 10 years’ imprisonment.
Section 61M(2) Indecent assault person under 16 years – maximum penalty 10 years’ imprisonment
Victim - EA
H96721672/2	The offender exposed his penis to the victim in his bedroom. He forced the victim to masturbate his penis until ejaculation. The offender forced the victim to sit on top of him on his bed and moved her back and forth against his penis (clothed) whilst holding her in place.	H96721672/13 Section 61N Commit act of indecency with person under 16 years. Maximum penalty – 2 years’ imprisonment.
Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years – maximum penalty 10 years’ imprisonment
Victim – JJ
Count 10 Ex-officio	Whilst at the victim’s home (during the same incident as count 6/sequence 6), the offender used his hands to rub the victim’s vagina and forced her to rub his penis using her hand. The offender pulled the victim’s pants and underwear down to her mid-thigh and pulled his penis out of his pants.	H90662432/6 Section 66DB(a) Intentionally sexually touch child 10 years or older and under 16 years. Maximum penalty – 10 years’ imprisonment.

Decision last updated: 15 August 2025