R v JK

[2021] NSWDC 502

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v JK [2021] NSWDC 502

Hearing dates:

20 April 2021 – 13 May 2021

Decision date:

07 July 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Aggregate sentence imposed one of 22 years imprisonment with a non-parole period of 15 years imprisonment.

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child <10

CRIME — Child sex offences — Sexual intercourse with child <16

CRIME — Child sex offences — Act of indecency with child <10

CRIME — Child sex offences — Indecent assault upon child <16

Legislation Cited:

Crimes Act1900 (NSW) ss 66A(1), 61M(2), 61O(2), 66O(2)

Crimes (Sentencing Procedure) Act 1990 (NSW) ss 3A, 21A, 25AA(3)

Cases Cited:

Carter v R [2018] NSWCCA 138

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
JK (Offender)

Representation:

Counsel:
Ms D Daleo (Crown)
Mr M Dennis SC (Offender)

Solicitors:
Ms K Sarofim (Crown)
Mr S Beal (Offender)

File Number(s):

2017/00024349

Publication restriction:

Non-publication order in respect of the names of the victims and the offender

SENTENCE

Introduction

1. The offender stands to be sentenced having been found guilty after trial of some 13 counts of sexual offending against three young females. Particulars of the counts upon which the jury returned verdicts of guilty are as follows:

2. In relation to the victim KCW, two counts of having sexual intercourse with a child under ten years of age between 1 January 2010 and 23 June 2013, being counts 1 and 2 on the indictment. Those two offences are offences under s 66A(1) of the Crimes Act. As at the date of the offences the maximum penalty was 25 years imprisonment and there is an applicable standard non-parole of 15 years.

3. There is also, in relation to this victim, an offence of indecent assault of a child under the age of 16 years, which occurred between 1 January 2010 and 23 June 2013, being count 4 on the indictment. That is an offence under s 61M(2) of the Crimes Act and has a maximum penalty of ten years imprisonment and there is an applicable standard non-parole period of eight years.

4. In relation to the victim ACW, there is one offence of committing an act of indecency with a child under ten years of age between 16 February 2011 and 23 June 2013, being count 5 on the indictment. That is an offence under s 61O(2) of the Crimes Act. It has a maximum penalty of seven years imprisonment and there is no applicable standard non-parole period.

5. There are, in relation to this victim, two offences of indecent assault upon a child under the age of 16 years which occurred between 16 February 2011 and 23 June 2013, being counts 7 and 8. Those two offences are offences under s 61M(2) of the Crimes Act and have a maximum penalty of ten years imprisonment with an applicable standard non-parole period of eight years.

6. In relation to the victim NM, there are six offences of having sexual intercourse with a child under ten years between 1 August 2016 and 31 December 2016, being counts 9, 10, 12, 14, 15 and 16. Those offences are offences under s 66A(1) of the Crimes Act and have a maximum penalty of life imprisonment with an applicable standard non-parole period of 15 years. The maximum penalty for offences under that provision of the Crimes Act was increased to life imprisonment on and from 29 June 2015.

7. There is in relation to NM one offence of committing an act of indecency with a child under the age of ten years between 1 August 2016 and 31 December 2016, being count 11. That is an offence under s 66O(2) of the Crimes Act and has a maximum penalty of seven years imprisonment and there is no applicable standard non-parole period.

8. The jury returned verdicts of not guilty in relation to counts 3, 6, 13, 17 and 18.

The Facts

9. Turning then to the facts. These are sentence proceedings after trial, and I am required to find the facts consistent with the jury's verdicts. To the extent that I find a fact adverse to the offender, then I must be satisfied of that fact beyond reasonable doubt. In general terms, the jury's guilty verdicts reflect an acceptance of the evidence of each of the victims in relation to the count to which the verdict related.

10. The offender gave evidence before the jury and denied each of the offences and any suggestion that he had committed any sexual act with any of the children. The jury's verdicts on the counts on which they returned guilty verdicts represent a rejection of the offender's evidence.

11. The facts concerning the offences committed against KCW and ACW are as follows: KCW and ACW were the children of GCW, who had been in a relationship with one of the offender's brothers, MK. The children, however, were not the biological children of MK but effectively his stepchildren. After the relationship between GCW and MK had broken down, the two victims disclosed to their mother and others the offences.

12. The offender, during the time that his brother had been in a relationship with the mother of the two victims, had been a relatively frequent visitor to the family home. He interacted with the children in the sense that he would play games with them and on occasions would bath and shower them, and on some occasions would look after them when his brother and GCW were both unable to be at home. He also built the two victims at one point a doll's house.

13. The offender's parents owned a farm at Allworth on The Bucketts Way. On occasions the offender would take the children to the farm without his brother or GCW being present. There was at least one motorbike on that farm.

14. The offences relating to KCW were all alleged to have occurred between 1 January 2010 and 23 June 2013. The evidence is such that I cannot be satisfied beyond reasonable doubt when precisely the offences occurred, although I accept the victim's evidence that count 4 occurred in 2011. The victim's date of birth is 4 August 2005, so the offences occurred when she was between essentially five and seven years of age, a very young child.

15. The offence in count 1 concerned KCW and occurred in the lounge room at the family home of the children. The sexual intercourse the subject of the count was that the offender had KCW perform fellatio upon him. The victim in her evidence said that ACW was also present and had thought that her brother BCW may have been present but was uncertain. Neither ACW or BCW gave evidence of this conduct towards KCW, and in her evidence KCW at times was uncertain as to whether they were present.

16. In these circumstances I am unable to be satisfied beyond reasonable doubt that the conduct occurred in the presence of another young child, although I am satisfied that other people were at home at the time, suggesting the offence was somewhat brazen. The victim's evidence was that the offender gave her a lollipop at the conclusion of the incident, and I accept beyond reasonable doubt that occurred. I am unable to be satisfied beyond reasonable doubt that the offender ejaculated, and there would appear to have been minimal force used in having the child perform the act.

17. The offence in count 2 concerned KCW and occurred in a shed at the farm of the offender's parents'. This offence again concerned the offender having the child perform fellatio upon him. The victim said this offence finished when the offender took his penis out of her mouth and she pushed him away. Again, I am unable to be satisfied beyond reasonable doubt that the offender ejaculated, and there appeared to be minimal force used to have the child engage in the act.

18. The indecent assault, which is the subject of count 4, also occurred at the offender's parents' property sometime during 2011. The offender had taken the victim for a ride on a motorbike to one of the paddocks on the property and had touched her bottom with his penis but did not achieve penetration of the anus. This count was the alternative to count 3, a count on which the offender was acquitted, the jury, it would seem, not being satisfied that anal penetration had been achieved.

19. The child had difficulty describing exactly what the offender did, but I accept her evidence that what he did caused her pain and she screamed. In her second police interview, the victim said in relation to this incident she had her clothes on at the time, but had very little recollection of how the offence occurred and appeared to me to be confused to some degree about precisely what occurred.

20. In these circumstances I cannot find beyond reasonable doubt that the offender had in fact removed her clothes and underwear at the time he touched her anal area with his penis. In these circumstances I am not satisfied beyond reasonable doubt that there was skin-on-skin touching of the child's anal area.

21. The offences in counts 5, 7 and 8 concern the victim ACW. Her date of birth is 16 February 2007. The offences concerning this victim occurred during the period 16 February 2011 and 23 June 2013, when the victim was between four and six years of age, a very young child.

22. The act of indecency with ACW the subject of count 5 occurred in the child's bedroom at her family home and involved the offender having her touch and rub his penis with both her hands. This offence came to an end when the offender told the child to stop. I am not able to be satisfied beyond reasonable doubt that the offender ejaculated during this offence.

23. The indecent assault the subject of count 7 occurred during the same incident in which count 5 occurred. The offender during this incident pulled the victim's clothes and underwear down and touched the victim on the bottom with his hand near the anus. No penetration was achieved, hence the jury's verdict of not guilty on count 6 for which count 7 was an alternative count. I am not satisfied beyond reasonable doubt that another child was in fact present when this incident occurred.

24. The indecent assault the subject of count 8 occurred on another occasion and occurred in the bathroom of the child's family home. The offender pulled the child's clothes and underwear down and touched her on the outside of her bottom. The offender gave the child a lollipop at the end of this incident.

25. Both girls first complained about the offender effectively to their parents on 22 June 2013 and the complaints were first reported to the police on 24 June 2013. An initial police investigation was conducted, but the offender was not charged at that point in time. A search warrant was executed by the police on 1 August 2013 on the offender's premises and a mobile phone of the offender's was seized. It was found to contain a number of photographs of KCW and ACW.

26. Two of those photographs were of the offender with one or both of the victims. One of those photographs taken in 2011 captured KCW putting a plastic tubular object between her lips, a somewhat sexually suggestive pose. The offender was only charged with the offences concerning KCW and ACW when the third victim, NM, complained about the offender.

27. The offences in counts 9, 10, 11, 12, 14, 15 and 16 all concerned the victim NM. NM's date of birth is 10 February 2008. The offences concerning NM all occurred between 1 August and 31 December 2016 when NM was eight years of age. They all occurred in NM's family home. The offender had met NM's parents through a woman he was in a relationship with in 2010.

28. NM's parents purchased a property in 2011 and two to three years later they engaged the offender to do building work on the property on a part-time basis. The offender would on a number of occasions when he worked at the property be permitted to stay overnight and he would stay in the victim's brother's bedroom and the brother would sleep in another bedroom with NM's other brother. Over time the offender had become a friend of NM's parents. The offender had revealed to the parents of NM that he had previously been the subject of allegations made by two other girls.

29. The offender would on occasions when attending NM's home give her and her brothers lollies and would regularly sit NM on his lap and tell her she was "his girl" and hug her. NM's parents were sufficiently concerned at the offender's behaviour in having NM sit regularly on his lap that they at one point spoke to the offender and told him that they considered it was inappropriate for her to do so. He was also spoken to by NM's mother about the fact that he would on occasions go into NM's bedroom and lay on NM's bed beside her.

30. The offences in counts 9, 10 and 11 occurred during the one incident. This was on an occasion that the offender had taken NM into her brother J’s room, being the room that the offender was staying in. I am satisfied beyond reasonable doubt that NM came to be in that bed because the offender had carried her from her own bedroom during the night.

31. The offender pulled down NM's clothing and her underwear. During that incident the offender performed cunnilingus upon NM while she was on the bed. That is the sexual intercourse that is the subject of count 9 on the indictment. The offender also put a condom, "a rubber", on his thumb and inserted it into NM's anus. That digital penetration is the sexual intercourse that was the subject of count 10 on the indictment. It caused the victim to experience a stinging sensation.

32. The act of indecency that the offender committed with NM, which is encompassed by count 11, involved the offender using the torch on his mobile phone to look at the victim's vagina and genital area, which the victim said occurred before the cunnilingus was committed during the incident.

33. The sexual intercourse which is the subject of count 12 on the indictment was cunnilingus performed by the offender on another occasion when NM was in her brother J’s room, being the room that the offender would stay in. The offender retrieved NM from her bedroom at night when the other members of her family were asleep and took her into the bedroom that he was staying in. The cunnilingus occurred while NM was lying on the bedroom floor.

34. The offence in count 14 occurred on another occasion, when NM was in the room in which the offender was staying, being her brother's bedroom. On this occasion NM was laying on her back on the bed in that room, the offender having taken her from her bedroom into the room that he was staying in. The offender on this occasion performed cunnilingus upon NM, having taken off her clothes and underwear. This offence occurred early one morning.

35. NM's mother woke early that morning and could not find NM. The mother tried to enter the room that the offender was in to look for her daughter, but he would not allow her to enter and blocked the door with his foot. The offender falsely claimed to the mother that NM was not in the room and refused to let her in because he said he was not yet dressed.

36. NM's mother a little while later saw NM when she suddenly appeared in the loungeroom of the home. When the mother saw her, NM rushed straight into her bedroom, put a blanket over her head, was sobbing and appeared to her mother to be withdrawn. NM's mother asked NM what the matter was, but NM would not say, was angry and told her mother to leave her alone. It was open to the jury to consider that NM's mother's evidence was significantly corroborative of NM's evidence in relation to that incident, and that is the view I take of it.

37. I found NM to be a compelling witness. Her evidence, together with her mother's evidence, satisfies me beyond reasonable doubt that on the occasion when the cunnilingus the subject of count 14 was performed, NM's mother had knocked on the door of the room in which the offender was staying at a time when NM was in the room and the offender was sexually abusing NM in the way NM described in her evidence. I have no doubt that NM was terrified during the circumstances in which count 14 occurred.

38. The offences in counts 15 and 16 both occurred during the one incident. This incident occurred on another occasion when NM was in the room in which the offender would stay when he was at her parents' premises. The offender on this occasion again performed cunnilingus upon NM, which is the conduct which the jury found proved in relation to count 15. The cunnilingus was performed while the child was lying on the bed.

39. The offender on this occasion also put a condom on his penis, "a rubber", and had the victim perform fellatio upon him. This is the conduct relied upon for count 16 on the indictment. This incident stopped when the child was able to hear the footsteps of her mother and father.

40. Insofar as complaint by NM is concerned, I am satisfied beyond reasonable doubt that a day or two after the day when NM's mother said she woke up and could not find NM and had tried to enter the room where the offender slept, NM's mother spoke to her and said words to the effect of; "You need to talk to me. I need to know what's going on because you're upsetting me. There's something going on between you and J," a reference to the offender; "I need to know what it is. I need to know now."

41. NM was then in tears and told her mother that she had been in the back room with the offender and that he had her legs over his shoulders and he was licking her private parts until she "weed" and he had his foot up against the door and she could not get out. NM also told her mother that the offender had put "a rubber" on his finger and made her suck it, and he put it up her "bum"; that she had been in the back room, being the room the offender stayed in at the time.

42. NM told her mother that the offender would take her from her bed while she slept at night and into the room in which he slept. NM's mother had NM write down on a piece of paper everything she had told her mother. That piece of paper was given to the police and at trial became document F in exhibit 1, being NM's literacy notebook.

43. Later, in August 2010, NM added to what she had originally written to state that the offender had threatened to punch her and that he would never come back if she told anyone what he was doing to her. NM stated that she had to do "all of this without a fuss or he would punch me or threaten to leave me".

44. After some communications with the offender in which NM's mother had suggested taking NM for counselling, the offender told her not to, as the counsellor might report the matter to the police. NM's parents subsequently reported the matter to the police and NM was first interviewed by the police on 17 January 2017.

45. The Crown's case at trial involved an argument that the evidence in support of the counts on the indictment, together with evidence of other uncharged acts, established that the offender had a tendency to have a sexual interest in prepubescent female children aged between four and eight years of age and a tendency to act on that interest. The evidence in support of the counts on the indictment, together with evidence as to other conduct by the offender which was not the subject of the counts on the indictment, satisfies me beyond reasonable doubt that the offender has the tendency for which the Crown contended.

46. In summary, that other evidence included evidence by the victims of the offender engaging in similar conduct to that engaged in and relied upon for the specific counts on the indictment. There was also evidence that the offender made videos on his phone of each of ACW and KCW performing fellatio upon him, although those videos were not located when his phone was examined by the police.

47. There was also evidence from NM's father, which I accept, that the offender on one occasion while NM was sitting on his lap, had her suck on a carrot, which was in effect an act of grooming the child to perform fellatio. It must be remembered, however, that I am not sentencing the offender for having that tendency, nor does it necessarily result in an increased sentence, although it has some relevance to my findings concerning his risk of reoffending and prospects for rehabilitation, which I will discuss a little later.

9. NM's Victim Impact Statement is a moving document and reflective of the long-term effects that sexual abuse upon children can have upon them, something that this Court, regrettably, is only too well aware of. No Victim Impact Statements were provided by KCW or ACW and during their second police interviews they had little recollection of the offences. However, it is well known that such offending has a significant impact upon victims for some considerable time and I have had regard to the trauma of the offending on each of the three victims in accordance with s 25AA(3) of the Crimes (Sentencing Procedure) Act.

10. The Crown did not submit that the injury or emotional harm caused by the offences to the victims was substantial within the meaning of s 21A of the Crimes (Sentencing Procedure) Act.

Objective seriousness

50. Turning then to my assessment of the objective seriousness of the offences. The Crown submitted that in relation to those offences that were committed against a victim within her home, the aggravating factor contained in s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act was established and I am satisfied beyond reasonable doubt that it was. Similarly, the Crown submitted that each offence involved an abuse of a position of trust, which amounted to an aggravating factor within the terms of s 21A(2)(k).

51. Senior counsel for the offender in oral submissions accepted that that aggravating factor was also established here, although submitted that there was some overlap between those two aggravating factors. I do not think that there is necessarily any overlap between those factors when one comes to consider the relevance of them to sentencing. A person may commit an offence upon a child in the child's home without being in a position of trust.

52. Clearly, in relation to all three children, over time, the offender had built up trust with their respective parents such that he was permitted to be alone with them. He also, by giving the victims gifts from time to time and engaging in, on the face of it, innocent acts with them, such as building a doll's house and playing games with them, actively groomed the children for the sexual offending.

53. Insofar as the aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act, being that the offences were committed in the victims' homes and amounted to a breach of trust are concerned, I have had regard to those factors when assessing the objective seriousness of the offences in order to avoid double-counting.

54. There was in relation to all of the offences a degree of planning involved. This is particularly so, in my opinion, in relation to the offences committed at the offender's parents' home against KCW and the offences committed against NM. In that regard I note the offences at the farm were committed when the child was taken by the offender away from his parents' home that was located on the property.

55. In relation to the offences concerning NM, the offender would wait until the other members of the family were asleep and would carefully go into NM's room and extract her from her bedroom and take her into the room he was staying in, in order to engage in sexual acts with her.

56. The three victims were very young, although in relation to KCW and ACW it is not possible to be any more precise about their age as at the time of the offences other than to note that in relation to KCW she was essentially between five and seven years of age, ACW was between four and six years of age, so each of those two victims, insofar as the sexual intercourse offences are concerned and in relation to the act of indecency with a child under ten offence is concerned, were around half the maximum of the age of a child that falls within the statutory provision. In relation to the indecent assault offences, they were a little less than half the maximum age of a child that falls within the relevant statutory provision.

57. NM was eight years of age at the time of the offences against her. NM was therefore closer to the upper end of the age range in relation to the sexual intercourse offences and the offence of commit an act of indecency with a child under the age of ten years.

58. The offender's date of birth is 27 October 1981, so as of the date of the commission of the offences against KCW and ACW he was between 28 and 31 years of age. As at the date of the offences concerning NM he was 34 to 35 years of age. The age difference between the offender and the three victims was very considerable. The ages of the three victims, together with the difference in age between them and the offender, meant that the victims were particularly vulnerable to sexual advances.

59. There is no hierarchy of sexual intercourse as far as the law is concerned. Generally speaking, though, penile‑vaginal and penile‑anal intercourse is considered to be more serious than fellatio, cunnilingus and digital penetration.

60. I have approached my assessment of the objective seriousness of each of the offences in accordance with those principles. My assessment of the objective seriousness of each offence is as follows:

61. 1. The offence in count 1, within the mid-range of objective seriousness;

62. 2. The offence in count 2, within the lower part of the mid‑range of objective seriousness;

63. 3. The offence in count 4, just below the mid-range of objective seriousness;

64. 4. The offence in count 5, just below the mid-range of objective seriousness;

65. 5. The offence in count 7, below the mid‑range of objective seriousness but not at the bottom of the range;

66. 6. The offence in count 8, below the mid-range of objective seriousness but not at the bottom of the range;

67. 7. The offences in both counts 9 and 10, within the mid‑range of objective seriousness;

68. 8. The offence in count 11, towards the lower end of the range of objective seriousness;

69.    9. The offence in count 12, within the mid‑range of objective seriousness but towards the lower end;

70. 10. The offence in counts 14, 15 and 16, all of those offences fall within the mid‑range of objective seriousness.

The offender’s subjective case

71. Turning then to the offender's subjective case. In terms of documentary material, I have before me: a psychological report from Mr Sam Borenstein, clinical psychologist, dated 11 June 2021; numerous testimonials from friends and family in support of the offender; documents concerning painful joints in his shoulders, elbows and knees that he has experienced for some years; and documents regarding the offender's medical condition.

72. The offender is a 39-year-old male with no prior criminal history and, as I say, there are a number of testimonials before me speaking of his good character. The Crown accepted that the offender was not assisted in the commission of the offences by the fact of his prior good character and lack of criminal convictions and that s 21A(5A) of the Crimes (Sentencing Procedure) Act was not engaged here. The offender's prior good character is a mitigating factor that I am bound to have regard to in arriving at the appropriate sentence. However, given the nature of the offending, it is only a small factor to be weighed in the sentencing process.

Family background

73. In terms of the offender's family background, according to the psychologist's report he was born in Newcastle and is the eldest of four boys. The offender's father worked for the majority of his life at BHP before sustaining a serious workplace injury and requiring extensive rehabilitation. As I mentioned earlier, there is evidence of that before me.

74. Senior counsel for the offender advanced a submission to the effect that the offender's incarceration causes such hardship to his parents, given his father's medical condition, that there should be a reduction in the sentence to be imposed. I will return to that submission later in these remarks.

75. The offender described to the psychologist a happy and uneventful childhood. The psychologist noted that there was no history of trauma, abuse or domestic violence. There was also no history of sexual abuse noted. The offender described a strong familial bond and that is reflected in the number of testimonials that are before me from family members and the support he received during the trial.

Education and employment history

76. In terms of his education and employment history, the offender told the psychologist that he attended his local primary and high schools and completed year 12. The offender noted that he had no behavioural problems of the sort that would have attracted the need for suspension or expulsion. Indeed, he told the psychologist he was school captain in primary school and vice-captain in high school.

77. He described taking a gap year after completing his higher school certificate, before commencing courses at TAFE, namely furniture design and visual merchandising. He commenced his apprenticeship at age 21 and stayed with the same employer for some 14 years.

78. In terms of personal relationships, the offender met a Ms Naghi in 1999 and they commenced an intimate relationship and lived together for 14 years. After that relationship ended, the offender then met a Ms Sherwell, with whom he has been in a relationship for four years. Ms Sherwell remains supportive of the offender, which is reflected in her testimonial that is before me, and she regularly attended the trial.

Substance use

79. Turning then to the offender's substance use, the offender told the psychologist that he has never taken drugs or smoked tobacco and that he rarely consumes alcohol.

Psychological history

80. In terms of the offender's psychological history, the psychologist noted that he has no prior history of psychiatric or psychological disturbances other than feeling "really depressed" when his relationship with Ms Naghi ended. The psychologist records that the offender identified himself as exclusively heterosexual and denied sexual paraphilia such as paedophilia. This is consistent with the offender's denial of the offending.

81. The psychological report notes that the Department of Corrective Services provides group therapy for so‑called "deniers" of sexual offending which it conducts in the prison context. The psychological report offered no formal diagnosis for the offender. The offender's results for the screenings of behavioural problems, depression, anxiety and stress were all within the normal range.

Attitude to the offence

82. As I mentioned earlier, the offender denies the offences and maintains his innocence, which is of course his right, but it means there is no remorse or insight into his offending. As there was no plea of guilty, there is no discount of the sentences to be imposed.

The future and risk of re-offending

83. The psychologist assessed the offender's risk of reoffending as low. I accept that determining the risk of reoffending is a difficult task. However, here the facts established at trial result in me rejecting that assessment by the psychologist.

84. The Crown case as accepted by the jury was that the offender committed serious sexual offences upon two young girls between 2011 and 2013. There was an initial police investigation into the allegations made by those girls and no charges were laid.

85. The evidence at trial established that the offender was aware of that investigation at the time. About three years later the offender committed serious sexual offences against NM, even after he was aware his conduct had previously been the subject of a police investigation, although no charges were laid.

86. I recorded earlier that the evidence at trial satisfied me beyond reasonable doubt that the offender has a sexual interest in young females and a tendency to act on that interest. Even accepting the offender will serve a lengthy non-parole period and will have available to him a number of rehabilitative programs in custody, I do not consider that I can be satisfied on the balance of probabilities that his risk of reoffending is low, even having regard to his prior good character.

87. The psychologist in his report does not discuss how an acceptance and consideration of the facts established at trial result in a finding that the offender has a low risk of reoffending. I am, however, prepared to accept that he has reasonable prospects for rehabilitation despite his lack of acknowledgment of his offending. He has no prior criminal record, many supportive family members and friends and will be next in the community after serving a lengthy non‑parole and after having had the opportunity to partake in a number of rehabilitative programs.

Hardship to the offender’s family

88. I referred earlier to a submission senior counsel for the offender advanced, which was to the effect that the offender's incarceration means that there is hardship upon his parents such that there should be some mitigation of his sentence. While there have been some suggestions amongst members of the Court of Criminal Appeal in recent years that the principles may be otherwise, I propose to approach this submission on behalf of the offender in accordance with the following principles.

89. Hardship to a third party such as a family member is a factor which I should have regard to in the "general mix" of factors that I should consider in arriving at the appropriate sentence. For such hardship to result in a substantial reduction in sentence for the offender, the offender must establish on the balance of probabilities that the circumstances are exceptional. See Carter v R [2018] NSWCCA 138. Senior counsel for the offender in his submissions accepted that these were the appropriate principles that I should apply and argued that here, on the balance of probabilities, the hardship caused to the offender's parents is exceptional.

90. The documentary evidence before me establishes that the offender's father was involved in an industrial accident at BHP in 1978. As a result, he suffered multiple fractures to his hip, pelvis and abdominal injuries and a ruptured bowel. After undergoing surgery he was left with a permanent limp and a permanent colostomy. He has been a type 2 diabetic since 2007 and is 65 years of age.

91. The report of Dr Balaz of 22 June 2021 states in relation to the offender's father that due to his injuries and the onset of age‑related osteoarthritis he is finding it more difficult to walk and is in severe pain on a daily basis and is finding it difficult to manage his property, which is the farm referred to in the evidence. In the offender's mother's testimonial, Mrs K refers to depending heavily on the offender and that, due to her husband's condition, day‑to‑day living has become a challenge.

92. The father's testimonial also indicates that he and Mrs K have relied upon the offender to assist them as two other sons live in Sydney and another son resides in Victoria. It had been envisaged, apparently, that the offender and his partner would reside at the farm to assist the offender's parents with the maintenance of the property and day-to-day living. BK, one of the offender's brothers, in his testimonial states that he and the other two brothers live too far away from their parents to attend to their needs.

93. I have had regard to the hardship to the offender's parents in the general mix of factors that I should have regard to in arriving at the appropriate sentence to impose. I do not consider the circumstances here to amount to exceptional circumstances.

94. The evidence does not establish that the parents will be unable to live on the property or that they would not have a place to live because of the offender's incarceration. The parents do have three other sons, who may live some way from the parents, but there is no suggestion that they are not physically capable of assisting the parents to adjust to the fact that they will no longer have the assistance of the offender due to his incarceration.

95. As is so often the case, it is family members who feel a significant impact when another family member is imprisoned. That, however, is a very common occurrence and is not, on the facts here, exceptional.

Imposition of sentence

96. I propose to make a finding of special circumstances when fixing the non-parole period for the following combined reasons: this is the offender's first time in custody and he is a person with no prior criminal record and he will require a significant period of supervision when the next in the community. I also am sentencing the offender during a resurgence of the COVID-19 pandemic in this State.

97. The current public health orders mean that in‑person prison visits would not be permitted. How long this situation will continue for is unknown as at the date of imposing sentence, but I propose to have regard to that fact. I also consider that the resurgence of the COVID-19 pandemic in the ordinary community is likely to heighten the anxiety of any person being sentenced at this time.

98. The offender has spent two periods of pre‑sentence custody, one being between 24 January 2017 to 30 January 2017, and from 13 May 2021, being the date of the delivery of the jury's verdicts to today. I will backdate the sentence to 6 May 2021 to take account of the pre-sentence custody.

99. I will utilise the aggregate sentencing provisions when imposing sentence. If I had not done so, my approach to accumulation and concurrency would have been as follows. In relation to the sentences concerning the offences against an individual victim there would be a need to have partial accumulation of the sentences to reflect the different type of offences and the number of different incidents of sexual offending against a particular victim.

100. Overall, there would need to be a reasonable degree of accumulation to reflect the fact that there are three young victims of the offending. Here I have kept in mind that I should not impose what might be thought be a crushing sentence, noting that six of the offences I have to sentence the offender for carry a maximum penalty of life imprisonment, the most severe punishment available at law.

101. I have had regard the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act, which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victims and the community, and rehabilitation of the offender.

102. Sexual offending against young, vulnerable children is abhorrent to all right‑thinking members of our community. Young children should be free to enjoy their childhoods without being preyed upon by sexual predators like this offender. In recent years, the Courts have been inundated with cases involving child sexual abuse, no doubt reflecting the sad fact that such offending has a degree of prevalence in our community.

103. The maximum penalties and, where relevant, the standard non-parole periods provided for the offences here reflect the seriousness with which the parliament regards such offending, no doubt also reflecting the abhorrence with which the community regards such offending The sentence imposed here must be sufficiently severe to deter not just this offender but others from engaging in such wicked conduct.

104. The maximum penalties and, where applicable, the standard non-parole periods have been taken into account as legislative guideposts. I have considered the cases the Crown referred me to. It was not suggested that those cases establish an appropriate range of sentence. It must always be remembered that sentencing is individual and the product of the instinctive synthesis of a number of competing factors.

105. As I said, I will utilise the aggregate sentencing provisions. I will firstly record the indicative sentences and, where there is an applicable standard non-parole period, an indicative non‑parole period. In determining the indicative sentences and fixing the aggregate sentence I have had regard to all of the objective and subjective factors I referred to earlier.

96. Mr K, the sentences you will hear me first announce are what are called indicative sentences. You will then hear me announce an aggregate sentence, which is the sentence and the non-parole period that you will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence I will tell you the date it starts from, the date it ends and the date when you are first eligible for parole.

97. The indicative sentence for the sexual intercourse offence with KCW, being count 1, is nine years of imprisonment with an indicative non-parole period of six years.

98. The indicative sentence for the sexual intercourse offence with KCW, being count 2, is nine years imprisonment with an indicative non-parole period of six years.

99. The indicative sentence for the aggravated indecent assault offence with KCW, being count 4, is four years imprisonment with an indicative non‑parole period of two years and eight months.

100. The indicative sentence for the act of indecency with ACW offence, being count 5, is three years imprisonment.    

101. The indicative sentence for the aggravated indecent assault with ACW, being count 7, is two years imprisonment with an indicative non-parole period of one year and four months.

102. The indicative sentence for the aggravated indecent assault offence with ACW, being count 8, is two years with an indicative non-parole period of one year and four months.

103. The indicative sentence for the sexual intercourse offence with NM, being count 9, is nine years imprisonment with an indicative non-parole period of six years.

104. The indicative sentence for the sexual intercourse offence with NM, being count 10, is ten years imprisonment with an indicative non-parole period of six years and eight months.

105. The indicative sentence for the commit act of indecency with NM offence, being count 11, is two years imprisonment.

106. The indicative sentence for the sexual intercourse offence with NM, being count 12, is nine years imprisonment with an indicative non-parole period of six years imprisonment.

107. The indicative sentence for the sexual intercourse with NM, being count 14, is 11 years imprisonment with an indicative non-parole period of seven years and four months.

108. The indicative sentence for the sexual intercourse offence with NM, being count 15, is nine years imprisonment with an indicative non-parole period of six years imprisonment.

109. The indicative sentence for the sexual intercourse offence with NM, being count 16, is 10 years imprisonment with an indicative non-parole period of six years and eight months.

110. I impose an aggregate sentence of 22 years imprisonment with an aggregate non-parole period of 15 years imprisonment. The sentence commences on 6 May 2021 and expires on 5 May 2043. The non-parole period expires on 5 May 2036.

111. The earliest date you are eligible to be released to parole is the date of the expiry of the non-parole period, which is 5 May 2036. Whether you are in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date.

Orders

1. The offender is convicted of the offences he was found guilty of by a jury after trial

2. Impose an aggregate sentence of 22 years imprisonment with an aggregate non-parole period of 15 years imprisonment. The sentence commences on 6 May 2021 and expires on 5 May 2043. The non-parole period expires on 5 May 2036.

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Amendments

23 September 2021 - Remove all identifiers of offender's name

Decision last updated: 23 September 2021