R v KW - [2018] NSWDC 209

District Court

New South Wales

Medium Neutral Citation: R v KW [2018] NSWDC 209
Hearing dates: 20 July 2018
Decision date: 03 August 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full time custodial sentence. For orders see [121]

Catchwords: Multiple counts of sexual intercourse with offender’s own children under 10 years; possess child abuse material; aggregate sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Berryman v R [2017] NSWCCA 297
DJM v R [2013] NSWCCA 101
JM v R [2014] NSWCCA 297
LS v R [2012] NSWCCA 236
MRW v R [2011] NSWCCA 260
R v Booth [2009] NSWCCA 89
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Gavel [2019] NSWCCA 56
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: NSW Police Prosecution (Cth Crown)
KW (Offender)
Representation: Counsel:
Mr P Marr (Cth Crown)
Ms R Suters (Offender)

File Number(s): 16/74204
Publication restriction: Non-Publication Order/Suppression Order pursuant to s 7 prohibiting the publication of any material revealing the identity of the complainants and the offender, the address where any offences took place and the name of the town where any offences took place.

REMARKS ON SENTENCE

On 20 July 2018, the offender entered pleas of guilty to eight counts on an Indictment. The offences were:

Count 1 – Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2)/s 66A of the Crimes Act 1900.

Count 2 – Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A of the Crimes Act 1900.

Count 3 – Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2) of the Crimes Act 1900.

Count 4 - Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2) of the Crimes Act 1900.

Each of the first four counts involved the offender’s daughter GW, who was aged 4-7 years at the time of the offending. Each offence carries a maximum penalty of life imprisonment, and a Standard Non-Parole Period of 15 years.

Count 5 - Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2) of the Crimes Act 1900.

Count 5 concerned an offence involving the offender’s daughter AW, who was aged 5-8 years at the time of the offending. This offence also carries a maximum penalty of life imprisonment, and Standard Non-Parole Period of 15 years.

Count 6 - Sexual intercourse with person under the age of 10 years, pursuant to s 66A(2)/s 66A of the Crimes Act 1900.

Count 7 - Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2)/s 66A of the Crimes Act 1900.

Both these offences involved the offender’s son BW, who was at the time of the offending 9 years of age. Both offences carry a maximum penalty of life imprisonment and a Standard Non-Parole Period of 15 years.

Count 8 – On 8 March 2016, possess child abuse material pursuant to s 91H(2) of the Crimes Act 1900. The offence carries a maximum penalty of 10 years imprisonment and there is no Standard Non-Parole Period.

The offender has asked that the following charges be dealt with on Form 1:

In relation to Count 2:

Sequence 17 – s 61O(2A) – incite child under 16 to act of indecency – film. Maximum penalty 10 years imprisonment.

Sequence 19 – s 91G(1)(a) – use child under 14 years for production of CAM. Maximum penalty 14 years imprisonment and Standard Non-Parole Period of 6 years imprisonment.

Sequence 16 – s 91H(2) – disseminate child abuse material. Maximum penalty 10 years imprisonment.

In relation to Count 3:

Sequence 12 – s 61M(2) – indecent assault on child under 16 years. Maximum penalty 10 years imprisonment and a Standard Non-Parole Period of 8 years imprisonment.

Sequence 14 – s 61O(2A) – incite child under 16 years to act of indecency – film. Maximum penalty 10 years imprisonment.

Sequence 13 – s 91G(1)(a) – use child under 14 years for production of CAM. Maximum penalty 14 years imprisonment and a Standard Non-Parole period of 6 years imprisonment.

In relation to Count 4:

Sequence 11 – s 61O(2A) – incite child under 16 years to act of indecency – film. Maximum penalty 10 years imprisonment.

Sequence 5 – s 91G(1)(a) – use child under 14 years for production of CAM. Maximum penalty 14 years imprisonment with a Standard Non-Parole Period of 6 years imprisonment.

Sequence 8 – s 91H(2) – disseminate child abuse material. Maximum penalty 10 years imprisonment.

In relation to Count 5:

Sequence 21 – s 61O(2A) – incite child under 16 years to act of indecency – film. Maximum penalty 10 years imprisonment.

Sequence 25 – s 61O(2) – act of indecency towards child under 16 years. Maximum penalty 7 years imprisonment.

Sequence 26 – s 61M(2) – indecent assault on child under 16 years. Maximum penalty 10 years with a Standard Non-Parole Period of 8 years imprisonment.

Sequence 22 – s 91G(1)(a) – use child under 14 years for production of CAM. Maximum penalty 14 years imprisonment with a Standard Non-Parole Period of 6 years imprisonment.

Sequence 23 – s 91H(2) – disseminate child abuse material. Maximum penalty 10 years imprisonment.

In relation to Count 7:

Sequence 27 – s 61O(2A) – incite child under 16 years to act of indecency – film. Maximum penalty 10 years imprisonment.

Sequence 28 – s 61M(2) – indecent assault on child under 16 years. Maximum penalty 10 years imprisonment with a Standard Non-Parole Period of 8 years imprisonment.

Sequence 29 – s 91G(1)(a) – use child under 14 years for production of CAM. Maximum penalty 14 years imprisonment with a Standard Non-Parole Period of 6 years imprisonment.

Sequence 30 – s 91H(2) – disseminate child abuse material. Maximum penalty 10 years imprisonment.

All of the offences occurred between 28 February 2013 and 8 March 2016, when the offender was arrested. The offender has been in custody since 8 March 2016. She was committed for sentence on 7 June 2017 and the sentence hearing took place on 20 July 2018.

The sentence hearing

The Crown Sentence Summary became Ex A on the sentence hearing. It contained a Statement of Agreed Facts which may be summarised as follows.
The offender KW was born on 11 November 1986. She has three children, GW born 26 March 2008, AW born 24 April 2007 and BW born 15 September 2005.
At all relevant times, the offender used the internet to meet men and engage in sexual behaviour with them online. She had a sexual fettish that involved being submissive and she engaged in degrading sexual acts for men. In 2013, at the request of men she had met online, the offender began introducing her three children into her online sexual behaviour. This conduct escalated and continued until October 2015. It involved undressing the children, having them engage in sexual behaviour with themselves, engaging in sexual behaviour with them, the use of sex toys on the children, interacting with the males online, and for a two week period in late 2014, engaging in sexual behaviour with a male in person. That behaviour was recorded as photographs and on video, and sent to men online who had expressed an interest in it. The offender received no money for doing so, but psychological benefits that flowed from the men’s affection and attention.

The offences against GW

During the period of the offences, GW was aged 4-7 years and the offender was aged 26-29 years. The offences occurred at two homes that she resided in from 2013 to October 2015.

Count 1

On a specific occasion, between March 2013 and October 2015, the offender had her daughter GW undress and lay down on her bed. The offender instructed GW to “play” with her vagina, and then manipulated GW’s vagina herself. She spread her vagina with one hand and used a sex toy to rub GW’s clitoris before penetrating her vagina with a sex toy. That act was filmed.
The offender penetrated GW’s vagina with a sex toy in a similar fashion on several occasions between March 2013 and October 2015.

Count 2

On a specific occasion between March 2013 and October 2015, following the incident in which the offender had asked GW to undress and lay down on her bed to play with her vagina, the offender told GW she was going to perform cunnilingus on her. GW said, “Gross”, and the offender told her it wouldn’t feel bad. The offender then performed cunnilingus on GW and that act was filmed.
The offender performed cunnilingus on GW in similar circumstances on about 4-5 occasions between March 2013 and October 2015.

Count 3

In late 2014, the offender invited a male she had met online to stay with her. He stayed with the offender and her children for a fortnight, and during that time engaged in sexual behaviour with GW and the offender in the offender’s bedroom on numerous occasions. On one of those occasions, the male performed cunnilingus on GW. GW was on her back on the bed. The male lay at her feet and placed her legs on his shoulders. The offender was next to them and filmed the act.

Count 4

On a specific occasion between March 2013 and October 2015, the offender was in her bedroom with GW who was wearing a yellow t-shirt. GW held a pink vibrator (with an attached stimulus) against her vagina and repeated the words “Daddy I love you”. The offender took hold of the vibrator and held it lower against GW’s vagina. The acts were filmed by the offender and a video lasting 21 seconds was later discovered by investigating police. The offender had GW lay on her back with her legs in the air and touched GW’s vagina with her finger, saying, “on here, down …”, and GW, who held the pink vibrator, said “Here?”, and placed the vibrator to where her mother had instructed her, saying, “Ow”. The offender said, “That’s it. Keep it there”. The offender then moved GW’s hand so that the vibrator moved to the area of GW’s anus, so that the attached stimulus penetrated her anus, causing GW to say, “Ow, ow, ow”. The act was filmed by the offender and a video lasting 16 seconds was later discovered by investigating police.
There were nine additional offences involving GW, which are to be taken into account on a Form 1. Each of those offences is referred to below.

The offence against AW

Count 5 involved an occasion between March 2013 and October 2015, when the offender undressed her daughter AW, and had her lay down on her bed and spread her legs. She then spread AW’s vagina and penetrated her external genitalia with a sex toy – focussing on her clitoris. The act was filmed.
There are five offences to be taken into account on a Form 1 in relation to this offence. They are referred to below.

The offences against BW

Count 6

On an occasion prior to 15 September 2015, the offender was communicating with a man online in her bedroom. The man communicated to her that, rather than further content of GW or AW, they would like something different. The offender made the decision to involve BW and had him come into her room and undress, instructing him to masturbate himself and then she provided him with a sex toy called a “wand”, which she instructed him to use upon his genitals, whilst she filmed the act. That recording was provided to the man online, who asked for further images of BW being penetrated by a sex toy. The offender explained to BW what she would do and then pushed the wand inside his anus and took three photographs of it. He said “It hurt”, so she stopped. The offender only penetrated BW on this one occasion.

Count 7

The offender, having provided further photographs to the man online, was asked to fellate BW. The offender explained to BW what she would do and then she rubbed his penis with her hand before she put it in her mouth and fellated him for about 10 minutes, to the point where he became erect. She filmed that act.
The offender had fellated BW and had manipulated his penis in similar circumstances on numerous occasions in both his bedroom and her bedroom between March 2013 and October 2015.
A further four offences are to be dealt with on a Form 1 in relation to Count 7. The offending behaviour in relation to those offences is referred to below.

Investigation and the arrest of the offender

Three of the video files depicting the offender and the victim GW, had been submitted to the International Child Sexual Exploitation Database by the National Centre for Missing and Exploited Children in the United State of America. Following a review by the Australian Federal Police, the investigation was transferred to the New South Wales Police, which led to the identification of the victim GW. She was interviewed at school on 8 March 2016, but disclosed no information regarding the video files or being the subject of sexual abuse. Later the same day, the offender voluntarily attended her local Police Station and participated in an electronically recorded interview, in which she was shown two still photographs taken from video files, which identified her daughter GW. She was also shown a still photograph of an adult female’s hand from that video, which was her hand, but she did not accept that it was her hand. She denied any knowledge of, or having participated in, sexual abuse of her daughter GW.
At the conclusion of the interview, the investigating officer informed the offender that an adult female voice could be heard and that the victim could be heard calling the word “Mum”. The offender admitted to involvement in the sexual abuse of her daughter GW and was arrested. She then participated in a second electronically recorded interview the same day, in which she explained she participated in the sexual abuse of her daughter in about April 2014 with a male person she had met over the internet, and invited him to stay with him for a fortnight. She stated that she had acted under duress, which was a lie. At the conclusion of the interview she was charged and bail refused.
The police executed a search warrant at the offender’s premises and seized an i-pad, two hard drives, two laptops, a webcam and a tablet, as well as several sex toys. Later, they were provided with a USB, an i-phone and an Acer brand computer tower that had been located in a caravan on the property used by the offender.
On 22 March 2016, the offender admitted to investigating police that she had sent child abuse material of her two daughters to different men, using various social media websites. She also admitted to having received child abuse material of one of those men’s son and niece.
Between 31 March and 2 April 2016, the offender, whilst in custody, wrote letters to her three children expressing her shame and remorse.
On 10 May 2016, police again spoke with the offender and she admitted to:

Having sexually and indecently assaulting her daughter AW and having recorded and distributed those images to various men using social media websites;

Having received further child abuse material from the same man, this time images of a baby being sexually assaulted, and an image of a 13 year old girl fellating her father;

Having conversations in late 2015 with a man about his desire to have sexual intercourse with GW.

When investigating police spoke to each of the offender’s three children, they at first denied being the subject of sexual abuse, but later told police that the offender had told each of them not to tell anyone about the offending conduct.
On 6 September 2016, the offender participated in a third electronically recorded interview, in which she made further admissions and explained that:

She met men over the internet on various social media websites;

She sexually and indecently assaulted all three of her children from 2013 onwards, and had them engage in masturbation.

She recorded those acts; and

She sent that child abuse material of her three children to the men she had met over social media.

Count 8 – possess child abuse material

The electronic items seized were examined and child abuse material was discovered on the offender’s i-phone, the Acer brand computer and a hard drive. A vast majority of the child abuse material was of her three children that the offender had created. Police also located evidence of about 100 conversations between the offender and other persons online regarding child abuse material. The offender made admissions in her third ERISP to having been in possession of images of a young baby engaged in sexual behaviour, a 13 year old performing fellatio on an adult, and of one of the online men’s niece and son both naked.
Exhibit A also contained a New South Wales Police Force report which disclosed that the offender had no criminal antecedents.
Exhibit B comprised a transcript of the three ERISP interviews conducted with the accused on 8 March 2016, (two interviews), and 6 September 2016. Exhibit C was a DVD of the second interview, of which a short portion only was played. It showed the offender crying, claiming on two occasions that a person named “Sam” threatened to kill her three children and forced her to commit offences involving GW.
Exhibit D was an envelope containing sensitive material, which is to be returned to the Crown following sentence. It contained a statement of Senior Constable Barrett dated 18 July 2018, which described exhibits that were downloaded from laptops, a computer, an i-pad and phones seized from the offender. In that material there were upward of 100 child abuse material images, some of very young children under 12 months of age, images of bestiality with the offender, and a large number of images of clearly pre‑pubescent children being abused by adults. Senior Constable Barrett had generated a report which was a representative sample of those images. The material also contained 138 pages of chat messages which contained child abuse material. The material was classified as Category 4 on the Child Exploitation Tracking Scheme (CETS) Scale. It was conceded by the offender that the relevant material constituted child abuse material.

Evidence relied on by the offender

The offender relied on a report by Dr Christopher J Lennings, psychologist, dated 7 November 2017 (Ex 1), and a report of Dr Jonathan Adams, forensic psychiatrist, dated 28 June 2018 (Ex 2). She gave no evidence at the sentence hearing.
Dr Lennings interviewed the offender on 2 November 2017 by AVL, which he reported was “of generally poor quality”. Under the heading “The offence”, the offender positioned her responsibility for her offending as having made bad choices. She said she committed the offences out of thinking that men may feel something for her if she satisfied them. She had used her children as a means of getting attention from men, and told Dr Lennings:

“I hate myself for what I did, ashamed of what I did and put my children through that.”

The offender expressed distress, anger and self-loathing at her behaviour. She understood that her behaviour will have severe impacts on her children.
The offender claims she ceased the offending behaviour in 2015, prior to her arrest, on the grounds that she knew what she was doing was wrong, and she could see the harm she was doing to her children. During the period of the offences she felt depressed and anxious, but did not receive medication for her condition until after she ceased the offending behaviour.
In 2013 she started meeting people on the internet. She told Dr Lennings she got into making the videos of herself abusing the children following a suggestion from one of these men on the internet. She made the videos to please him as a way of her showing she wanted a relationship with him.
Dr Lennings took a family history. The offender had a generally happy childhood, denying experiencing abuse or trauma. She did not do well at school and her adolescent years were quite problematic. She reported engaging in self-harming behaviour, drinking, early engagement in sex and generally being rebellious. She fell pregnant in year 10 and after leaving school, did not engage in employment, although she did work intermittently in a family owned shop.

Dr Lennings also took a medical history. She was medicated for depression in 2005, although she had a long history of mood disturbance. She suffered post-natal depression in 2005 and stopped taking her medication in 2007. She continued feeling miserable, but author noted:

“The quality of her life severely deteriorated in 2013, consequent on her embarking on the offences.”

The report noted an early onset of problematic drinking and abuse of Valium. The offender has three children from two fathers. Her relationship with the father of both AW and GW was violent and after 2008 she had no serious or committed relationships.
Under the heading “Psycho-sexual functioning”, the offender expressed a desire for “rough sex” and some S & M practices, and said she was involved in humiliation. She also reported the use of pornography to engage in sexual arousal and daily masturbation. She was not sure how her behaviour deepened into humiliation and then abusing her children. Dr Lennings opined that she will require significant psycho-therapy to unravel how her motivations for sexual pleasure ended up in what it was, in effect, psychological self-harm and then some child abuse. He opined that her need for treatment was obvious.
Under the heading “Risk assessment”, Dr Lennings stated there were present risk factors that suggest the offender will require significant intervention in order to reduce her risk of future problematic behaviour. He set out factors which would limit the offender’s risk of re-offending, and factors which would be seen to increase her risk of recidivism.
Dr Lennings was of the opinion that the offender presented “as a woman who has for reasons that are not clear, developed a severe disabling personality disorder”, consistent with a diagnosis of Borderline Personality Disorder. She had developed an interest in pornography and engaged in paraphilic sexual practices, and over time, engaged in the creation of and dissemination of, child abuse material. Her interest in submission and abusive sexual behaviour was exploited by men she met on the internet, which degenerated to her own sexual abuse of her children. Dr Lennings opined:

“It seems her behaviour was oriented in meeting her own sexual needs and gratification, and attention from these deviant males. She engaged in multiple abusive behaviours, including sexual assault of her own children, for the period the offences were occurring, seemed highly deviant. She did stop such behaviour some five months before police investigation established the identities of her children, claiming that she recognised it was wrong and harmful to her children, suggesting some capacity for insight into her behaviour.”

On the question of whether the offender has a paraphilic disorder, Dr Lennings opined that she presented as a paraphilic and hyper-sexual. She would ordinarily meet criteria for a paedophilic disorder, in that she was preoccupied with the abuse of her children, which occurred over a several year period. The abuse of her children appeared to be instrumental for meeting her needs for attention from deviant males, rather than reflecting a genuine interest in sexually abusing her children for her own gratification, outside of her desire to please others, and this reflected an aspect of her ongoing pattern of self-abasement and humiliation. A more detailed examination of her behaviour was required to establish a diagnosis of paedophilia.
Despite her having a number of mental health issues, Dr Lennings was of the opinion that the offender was not mentally ill. She required treatment by long term psychotherapy for her personality dysfunction and low mood, and similar treatment for her alcohol use and anxiety, in addition to targeted offence specific treatment. She was likely to need a significant period of treatment to help her adjust, and some treatment programs were available in custody for her.
Dr Adams completed his assessment of the offender across two interviews. Under the heading “Psychiatric history”, the offender confirmed that she had been sexually abused as a child, but did not want to use that as an excuse for her offending conduct. She had begun self-harm at 15 years of age, but had never attempted suicide, although she had contemplated it. She had sought help from her general practitioner for post-natal depression, but had never seen a psychiatrist or clinical psychologist, and had never been admitted into a mental health hospital.
Dr Adams took a history of drug and alcohol abuse. She started smoking cannabis when she was 14 years of age. She denied any use of illicit substances prior to her arrest. She had begun drinking alcohol regularly when she was 16 or 17 years old, and by age 26 she was drinking on a nightly basis.
Dr Adams also took a family and personal history. She had done nothing since she left school and had never engaged in paid employment.
Under the heading “Psycho-sexual history”, the offender rated her sex drive as “high”. On a daily basis she would crave sex and ruminate about it. She began watching online pornography when she was 18 or 19 years of age, and gradually focussed on BDSM. She usually masturbated whilst viewing pornographic material, on average two or three times a day, but had done so on up to eight times per day. She also engaged in sexual intercourse in public, in view of others, on three or four occasions. She denied ever experiencing sexual fantasies or urges regarding pre-pubescent or peri-pubescent children.
In relation to her offending behaviour, the offender had reported an increasing consumption of alcohol during the period of the offending from 2013 onwards. The offending behaviour occurred often while she was intoxicated, but also while she was sober. During that period she had remained the primary carer of her children, taking them to school and cooking, cleaning and shopping for them. She acknowledged that the Statement of Agreed Facts was accurate.
Dr Adams reported that he was told the offender introduced her children to four men online. She also met a man named “Sam” in person, and allowed him to engage in sexual intercourse with her daughter GW. When asked why she engaged her in inappropriate sexual behaviour she said:

“In all reality I don’t understand why I did it … I thought that they (referring to the men she met online) had feelings for me, and that sounds really stupid I know …”

She informed Dr Adams that at no point did she gain any sexual pleasure from viewing her three children engaging in inappropriate sexual behaviour.
The offender confirmed to Dr Adams that she engaged in inappropriate sexual behaviour with her children when no men were present and they were not posting images or film online. This included inserting sex toys into her children and demonstrating to them how to masturbate. She denied experiencing any specific sexual fantasies or urges regarding her own children, or any other pre-pubescent or peri-pubescent child. If pornographic images concerning children were sent to her, she would delete them and never view them whilst masturbating.
Regarding the consequences of the offending behaviour, the offender had told Dr Adams, “of course I knew it was illegal”, and, “I hate myself because I’ve destroyed my children’s lives”. She went on to say, “I don’t know how this is going to affect them”.
The offender had told Dr Adams that it was a relief when she was arrested. She was content that her children were happy and safe, now that she was incarcerated. In custody, she described a persisting low mood and an emotional state which she likened to “drowning”. She had not, however, engaged in any self-harming behaviour and had not used any illicit substances other than once using methamphetamine in the Cessnock Correctional Centre in 2017. Nor had she engaged in any sexual activity with inmates, nor masturbated since her arrest. She was keen to engage in psychiatric/psychological treatment if available.
Dr Adams opined that the offender’s personality structure was consistent with a diagnosis of Borderline Personality Disorder. She had a history of trauma, consistent with verbal bullying during her high school years, and an incident of sexual abuse by an uncle when she was 13 years of age. She had long‑standing difficulties with anxiety, consistent with a diagnosis of Agoraphobia.
The offender had also endured ongoing symptoms of major depression, anxiety and PTSD in the context of her underlying Borderline Personality Disorder. The cumulative effect of these psychiatric issues would have impacted upon her judgment, decision making capacity and consequential thinking during the period of the offending. However, this was not sufficient to fully explain why she might have engaged in protracted and repeated inappropriate sexual behaviour with her three children.
The offender had acknowledged her lack of understanding as to the reasons why she engaged in the offending behaviour. Her hypothesis of attempting to please the male perpetrators, in some way to attract them to her, did not really help to explain the offending behaviour. Dr Adams opined:

“The nature of the offending behaviour itself, particularly engaging in sexually inappropriate behaviour with her children whilst not in the company of another adult or posting live images online, suggests an underlying sexual attraction to children; hence the possibility of Paedophilic Disorder. However, the offender denied ever experiencing sexual fantasies or urges focussing upon her own children, or other children. I’m not aware of any evidence to suggest she had any sexual attraction to other children, i.e. non-incest sexual behaviour. At this stage I am only able to offer a hypothesis as to why the offender might have engaged in the offending behaviour. One consideration is her fragile sense of self and extremely low self-worth, might have eventuated in her cognitive distortion that inappropriate sexual behaviour with her children might in some way benefit their sexual development. However, this is countered by her own acceptance that she appreciates the legal and moral wrongfulness of the offending behaviour as it occurred, and felt extreme guilt and low mood as a result.
In my opinion, the offending behaviour the offender has engaged in is complex, and its origins are multi-faceted. Clearly the offender is someone who experiences a range of psychological and psychiatric issues. Careful and considered ongoing evaluation will be required in the long term in order for the offender and her treating clinicians to establish a working acceptable model regarding the motivation for the offending behaviour. The diagnostic possibility of a Paedophilic Disorder remains and should be further explored in her ongoing assessment and treatment.”

Dr Adams opined that she would require psychological therapy during her incarceration. Long term therapy would involve social management strategies and she would benefit from remaining abstinent from illicit substance abuse and alcohol abuse, and therefore drug and alcohol rehabilitation should also be integrated into her treatment plan. This will mitigate the risk of her engaging in future sexual offending and problematic behaviour.

The offender’s submissions

Counsel for the offender relied on a lengthy and detailed outline of written submissions on sentence. They included a summary of principles of sentencing for child sexual assault, which are uncontroversial. They include, that the seriousness of such sexual offences against young children is reflected in the maximum penalties applicable and any prescribed Standard Non-Parole Period, that general deterrence is a significant consideration in sentencing for child sexual assault, and that condign punishment is called for where sexual assaults are perpetrated against young children, particularly by those in a position of trust. It was conceded in relation to all offences, that the breach of trust by the offender is a very significant circumstance of aggravation, given the offender is a single mother, responsible for the care of her children. Further, an abuse of trust is considered to be more serious when the offender is a family member – see DJM v R [2013] NSWCCA 101.
The following submissions were made in respect of the assessment of the objective seriousness of the offending in each count:

“Count 1 – is an offence under s 66A(2). It fell well above the mid‑range of seriousness.

Count 2 – is an offence under s 66A(2). It fell above the mid-range of objective seriousness for such an offence.

Further, the Form 1 matters in respect of Count 2 involved the offender masturbating herself in front of the victim with her fingers and a sex toy to teach the victim how to do so herself. On one occasion she told the victim to play with her vagina using her fingers, and provided the victim with a vibrator and instructed the victim how to use the vibrator on her vagina. That behaviour was filmed and occurred many times. The Form 1 matters also reflected the offender has engaged in grooming behaviour and disseminated photographs and videos of the victim to at least five men on more than one occasion throughout the offending period. The child abuse material created and disseminated was of penetrative and non-penetrative activity. The offender acknowledged that the Form 1 matters were serious and would see a substantial increase in the penalty that would otherwise be imposed.

Count 3 – is an offence under s 66A(2). The offending fell well above the mid‑range of objective seriousness, toward the top end of the mid-range. Further, there were three offences on the Form 1 to be taken into consideration. They involved the offender touching the victim’s vagina with her fingers and a vibrator, whilst a male person watched on. The male then touched the victim with his fingers on her vagina until he ejaculated. This was filmed by the offender. This behaviour was repeated on about 20 occasions, with the offender herself touching the victim about five to six of those 20 occasions. On one of those occasions the offender and the male had the victim use a vibrator on her own vagina while they recorded it. It was acknowledged that the Form 1 matters were serious offending and would see a substantial increase in the penalty that would otherwise be imposed.

Count 4 – is an offence under s 66A(2). It was submitted that the offending behaviour fell well above the mid-range of objective seriousness for such an offence.

There are also three offences on the Form 1 to be taken into consideration when sentencing for this offence. The offending behaviour involved the victim holding a pink vibrator against her vagina and repeating “I love you daddy”. The offender had encouraged the victim to keep going and hold the vibrator, to hold it lower against the victim’s vagina, hurting the victim. This was filmed by the offender for 21 seconds. The offender then moved the victim’s hand so that the vibrator moved towards the victim’s anus, and the stimulus attached to the vibrator penetrated her anus, hurting the victim. This was filmed by the offender for 16 seconds. On another occasion the victim was moving the vibrator against her vagina and describing how it felt. That was filmed for 20 seconds. The final matter on the Form 1 involved the offender disseminating the three videos to men over the internet. It was submitted that the Form 1 matters would see a substantial increase in the penalty which would otherwise be imposed in respect of Count 4.

Count 5 – is an offence under s 66A(2). It involved the victim AW, and involved the offender spreading her vagina and penetrating her external genitalia with a sex toy, focussing on her clitoris. It was submitted that the offending fell at above the mid-range of objective seriousness for such an offence.

There were five offences on the Form 1 to be taken into consideration when sentencing for Count 5. They involved directing the victim to pose naked in certain positions and play with her vagina with her fingers while the offender took five to six photos of this. On another occasion, the offender had the victim come to her room and she introduced the victim to sex toys. The offender was also naked and used her own sex toy to show the victim how to use the item and also where her clitoris was located. On another occasion, the offender rubbed the vagina of the victim with her fingers and a sex toy, and filmed this act. This occurred on three to four occasions and on one of those occasions the offender put lipstick on the external genitalia of the victim. The offender filmed all of the behaviour for the purpose of providing that material to men that she met online. She in fact provided the material online to different men throughout the offending period. It was submitted that the Form 1 matters would see a substantial increase in the penalty which would otherwise be imposed.

Count 6 – is an offence under s 66A(2). The offending behaviour involved the offender penetrating the victim’s anus with a sex toy and photographing it. The victim told the offender that it hurt and the offender stopped. It was submitted that the offence fell well above the mid-range of objective seriousness for an offence pursuant to s 66A(2), towards the top end of the mid-range.

Count 7 – is an offence under s 66A(2). The offending behaviour involved the offender fellating the victim. She rubbed the victim’s penis before she put it in her mouth, and fellated him for about 10 minutes until his penis became erect. This was filmed by the offender. It was submitted that the offence fell well above the mid-range of objective seriousness for such an offence.

There were four offences on a Form 1 to be taken into account in sentencing for this offence. They involved the offender telling the victim to masturbate himself and then instructed him to use a sex toy called a wand on his genitals whilst the offender filmed this act. The offender also used the wand against the victim’s genitals and anus and took photographs. The offender then sent the photographs and videos she had taken of the victim to men she had met online. It was submitted that the Form 1 offences would noticeably increase the sentence for Count 7.

Count 8 – is an offence under s 91H(2). It involved child abuse material found on the offender’s i-phone, an Acer brand computer and a hard drive. The vast majority of the child abuse material was the child abuse material she had created of her own children. The offender admitted to being in possession of other child abuse material not of her own children. It was acknowledged by counsel for the offender that the child abuse material included images of very young children, if not babies, and had been certified on the CET Scale 4 in the sample amount. It was submitted this was serious offending. It was further submitted that there was some overlap of this offending in the offences under s 91(G)(1) and s 91H(2) on the various Form 1 documents relating to Counts 2, 3, 4, 5 and 7.”

It was submitted that the offender had no criminal record and that her good character played no role in obtaining access to the victims. However, it was conceded that the court would not give significant weight to the lack of criminal record and find it a mitigating factor, given the pattern of repeat offending over a period of almost three years. It was submitted that the lack of criminal history could be considered in determining the offender’s prospects of rehabilitation.
Counsel submitted that offender was genuinely remorseful for her offending conduct. Remorse could be found in the admissions she made in her ERISP interview to police on 6 September 2016. She had also expressed remorse to Dr Lennings (see [5] of his report), and Dr Adams (at p 8 and 9). The offender had written to her three children expressing her shame and remorse.
It was submitted that the offender’s failure to admit the offending behaviour immediately to police upon arrest does not detract from her genuine remorse. It was submitted that the offender takes full responsibility for her offending behaviour and does not lay the blame on anyone else for that behaviour, notwithstanding that in her initial interviews with police she may have sought to do that.

It was submitted that the offender had experienced emotional and behavioural difficulties dating back to her early childhood. Dr Adams had diagnosed her personality structure as consistent with Borderline Personality Disorder, and the offender also had ongoing symptoms of major depression, anxiety and PTSD. There was, however, no evidence to suggest that her mental health issues reduced her moral culpability. Dr Adams had opined that there was evidence to consider that the cumulative effects of her psychiatric issues would have impacted on her judgment, decision making and consequential thinking. However, those issues do not fully explain why the offender would have participated in such protracted and repeated criminal behaviour with her children.
Nor was it submitted that the fact that the offender was sexually assaulted by her uncle on one occasion when she was 13 years of age, could have contributed in a significant way to the offender’s criminal behaviour, and as such, it could not be considered as reducing the offender’s moral culpability. However, counsel submitted that the sexual abuse of the offender was relevant, adopting Dr Adams’ opinion that “it is important to consider in the development of her personality structure, and subsequent symptoms consistent with a diagnosis of PTSD”.
It was submitted that the offender had ceased the offending behaviour approximately five months prior to the police investigation, and that she knew what she was doing was illegal and wrong. It was submitted that she had good prospects for rehabilitation based on the following:

Ceasing the offending behaviour prior to the arrest

She has insight as to the effects of her offending on the victims

She has expressed willingness and indeed desire to engage in counselling for her offending behaviour and to understand the aetiology of her offending

She has pro-social values and no other criminal offending

She does not have substantial drug and alcohol issues to overcome

The offender has admitted her conduct.

It was submitted that the offender was unlikely to re-offend if she engaged in programs. There will be no further risk of offending against her own children, given the lengthy sentence that will be imposed and the current ages of her children. The offender had expressed a desire to participate in the programs available in custody.
The offender has been in custody since her arrest on 8 March 2016, and any sentence to be imposed should date from that date. Counsel also invoked the principle of totality as explained by the Court of Criminal Appeal in R v Van Ryn [2016] NSWCCA 1. It was acknowledged that the offending as a whole was of a high level of criminality, and that partial accumulation should occur between each count. The extent of that accumulation should take into consideration that there were three victims, that the offences occurred over a two and half year period, and that there was some overlap between Count 8 and the offences on the Form 1 documents, related to production and dissemination of child abuse material.
Finally, it was submitted that a finding of special circumstances should be made on the basis that this will be the offender’s first time in full time custody, there will be some partial accumulation of the sentences, and the offender will need supervision on her release to re-integrate into the community after a significant time in custody. It was, however, conceded that the lengthy period of parole which will be imposed will provide time for re-integration and support back into the community.

The Crown submissions

The Crown also relied on a written outline of submissions. The Crown submitted the following aggravating factors were present in the offending pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”):

“(eb) offences committed in the home of the victims
(k) The offender abused a position of trust”

This was distinct from a position of “authority”. The three victims had only one parent raising them. There was no one else on whom they could rely, and their dependence on their mother was the particular trust abused.

The Crown submitted the following mitigating factors were to be taken into account pursuant to s 21A(3) of the CSPA:

“(e) No convictions
(f) Good character
(g) Unlikely to re-offend
(h) Good prospects of rehabilitation
(i) Had shown remorse
(k) Plea of guilty.”

The Crown referred to three comparable authorities to submit that the salient features of the offending included the following:

“(1) Sexual intercourse with three biological children;
(2) Anal penetration, vaginal penetration, cunnilingus, fellatio, digital penetration;
(3) Children aged 4 years to 9 years;
(4) Offending over a period of two and half years;
(5) Use of sex toys on children;
(6) Penetrative sexual activity with each child;
(7) Filming children;
(8) Publishing the films on the internet;
(9) Assisting an act of cunnilingus on GW by a male not known to the child.”

In assessing the objective seriousness of the offending, the Crown submitted that each of the offences was well above mid-range offending, approaching the highest level. Each contained features as outlined above. There was publishing of the conduct in perpetuity on the internet and the commencement age of the conduct in respect of each of the three children (4, 5 and 7 years respectively), is well below the statutory upper limit of 10 years of age.
The Crown submitted that the court should approach with caution the reports of Drs Lennings and Adams, where the information relied upon by those doctors, came from the offender. The offender had given no evidence at the sentence hearing, and the doctors were not briefed with the ERISP interviews nor the chat logs of the offender.
The Crown submitted that the offender’s account to police had changed over time, demonstrating her ability to give a self-serving account to paint herself in the best possible light. Moreover, the second ERISP interview demonstrated an ability to tell lies, whilst at the same time appearing to be earnest while giving a false account to the police. This involved crying on cue. The Crown then outlined features of the three ERISP interviews. In the second interview, she had made claims that a person known as “Sam” made her do it and threatened to kill her children. She claimed that she had caught Sam abusing GW and denied doing anything to GW herself at that time. The offender had claimed that Sam had threatened her and that she used sex toys on GW under duress. The offender had attempted to contact the police but “Sam” had taken her phone, and she claimed that she was not allowed to leave the house without him when she wanted to tell the police. She denied a number of the acts involving GW and claimed that she never did anything to AW.
The Crown submitted that a proper analysis of the offender’s behaviour demonstrated that she was not coerced into providing child sexual assault material to men on the internet. The offender had lied to police about the threats from “Sam”, and submitted that she invented the sexual assault by “Sam” to justify the photos the police had.
The Crown submitted that the “teary” second ERISP interview demonstrated a capacity to lie convincingly. Any finding based on her self-serving accounts to the psychologist and psychiatrist would be fraught with uncertainty as to the truth.
The Crown submitted that specific deterrence played a significantly higher role than usual, and that no special circumstances were demonstrated, and that the necessary lengthy parole period which will flow from a lengthy sentence will provide time for integrative community-based supervision.
In oral submissions, the Crown submitted that the second ERISP interview demonstrated clearly by her demeanour that the offender was not being truthful. She had lied to police about her involvement in a compelling and emotional way. This was done to reduce her complicity in the acts with GW, in part claiming that she only acted under duress.
At the time of the third ERISP interview the offender was in custody and she gave a fuller description of her involvement with the victim AW. She had sent photographs of her children on the internet because men wanted her to send them. In that interview she admitted that most of the acts occurred at the second house that she had moved to because of the alleged threats by “Sam” to the children. In that interview she had admitted possession of the child abusive material and denied that she had been sexually abused as a child, whilst admitting her moral culpability for the offending.
The Crown submitted that Ex D, the envelope containing sensitive material, which was admitted to be child abuse material, demonstrated that the offender sent unsolicited material on the internet to a person with the nickname “Daddy”. That person, who described himself as a “pedo” earlier in the material, was not expecting that material. The Crown submitted that this was not a case where the offender only acted at the request of others. Here, she had offered this material to the person without his making a request for it.
The Crown agreed with the classification of the material on the CETS Scale. The images represented material no higher than level 4 on that scale.
The Crown otherwise agreed with the offender’s written submissions. The offender was entitled to a 25% utilitarian discount on sentence for her early pleas of guilty. The court would take into account that, in respect of Counts 1 to 4, and the matters on the Form 1 relevant to the victim GW, the victim was between 4 and 7 years of age during the period of the offending. In respect of Count 5 and the five matters on the Form 1 in respect to that matter, the victim was aged between 5 and 8 years during the period of the offending. In respect of Count 6 and 7, the victim BW was aged between 7 and 10 years during the period of the offending.
In respect of the breach of abuse of trust involved, the Crown relied on MRW v R [2011] NSWCCA 260 at [78] and [79]. Here, there was a special relationship of trust because the children only had one parent as their carer, and no one else to whom they could turn to.
As to whether the offender had good prospects of rehabilitation, the Crown submitted that the finding was open to the court. The Crown accepted that the offender had shown some remorse, and her letters to her children acknowledged that. The Crown also accepted that the pleas of guilty were some evidence of her remorse.
The Crown rehearsed its submissions in respect of the objective seriousness of the offending here as being well above mid-range, and approaching the highest level. The Crown agreed that an appropriate aggregate sentence could be imposed pursuant to s 53A of the CSPA, and that the indicative sentences should reflect, as guideposts, the maximum sentences and Standard Non-Parole Periods imposed by Parliament for the offences. Any sentence would have to be adjusted upwards, given the objective seriousness of the matters on the Forms 1.
The Crown repeated its submission that circumspection must be given to the histories recorded by Drs Lennings and Adams in Exs 1 and 2. The offender had demonstrated a capacity for untruth, to mislead and become emotive when speaking untruths, and she had not given evidence to adopt the histories contained in those reports.
Each of the report writers had expressed concern about the paedophilic nature of her offending conduct, but neither were able to accurately diagnose it. Dr Adams had suggested the possibility of a paedophilic disorder remained, and his findings were consistent with Dr Lennings. The Crown submitted that it was apparent that the offender had a panoply of issues relevant to her psyche, however, there was no evidence of any psychological factors which would reduce her moral culpability here. The Crown submitted it was a quandary as to the real reason for her offending conduct.
The Crown conceded that that conduct had ceased in October 2015. However, this was not a discrete mitigating factor, but could be taken into account in the overall assessment of the criminal conduct. Her insight into her offending came very late, only four months before her arrest, after two and half years of offending. This may give a glimmer of hope for good prospects of rehabilitation, namely her voluntary desisting from her criminal conduct. The Crown conceded that the offender had also acknowledged her shame to her children and embarrassment caused to her family.
The Crown submitted that general deterrence played an important role in the sentencing here, also specific deterrence was important because of the length of the period of time over which the offending took place, and the fact that there were three victims involved.
On the question of special circumstances, the Crown submitted that any sentence would be such as to carry a very lengthy parole period in any event, to ensure her integration under supervision into the community. Any rehabilitation would be subsumed in that supervision. The court was referred to LS v R [2012] NSWCCA 236 per Bellew J at [83] in support of that submission.

Further submissions by the offender in reply

Counsel for the offender acknowledged the child abuse material contained very young children, who were not the children of the offender, and had been classified on the CET Scale at 4 in the sample amount. The offender also accepted that the material contained both requests for material that was then disseminated and material that the offender disseminated in perpetuity. This conduct was derived from a desire by the offender to please persons on the internet so they would love her.
In relation to the sequence of ERISP interviews, it was submitted that it was not unusual for an accused person to panic, deny, minimise or exculpate their role in criminal conduct, and later, fully acknowledge their offending behaviour. The offender here was an untreated sex offender, and between her interviews in March and September 2016, there had been a significant progression in time, up until her examinations by Dr Lennings and Dr Adams in November 2017 and June 2018, respectively. Whilst the court would still exercise caution in relation to those reports, it could also rely on collateral material, including the Justice Health Records and the medical records provided to Dr Adams. The offender had a history of depression for which she had sought treatment.
Counsel submitted that the abuse of trust as a single parent could be taken into account here. Whilst the cessation of offending some four to five months before her arrest, would not be long enough to ground it as a mitigating factor, it did inform her prospects of rehabilitation and her insight into her offending conduct. In respect of the comparable authorities referred to by the Crown, there were significant differences in the ages of the offenders and the number of victims involved, however, the sentence here, it was submitted, would be “well up” on those authorities.

Determination

Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and the community.”

The Crown has characterised all of the offending in each of the eight counts on the Indictment as having objective seriousness for the offences well above the mid-range, and approaching the highest level for offences pursuant to s 66A(2) and s 91H(2) of the Crimes Act. The offender also categorised each of the offences as above mid-range, although she submitted that the objective seriousness in the offending in Counts 1, 4, 6 and 7 were well above mid‑range, and that the offending in Count 8 was mid-range, although it involved some overlap with a number of the Form 1 offences.
It is therefore clear that the offender’s criminal conduct constituted most serious offending, which was aggravated by the offences being committed in the home of the victims, her three children (pursuant to s 21A(2)(eb)), and the offender abusing a position of trust (pursuant to s 21A (2)(k)), particularly as she was, as a single parent, the parent responsible for raising them and the children had no one else on whom they could rely.
I make the following findings as to the objective seriousness of the offending:

Count 1 – involved the offender filming an act in which she used a sex toy to rub GW’s clitoris before penetrating her vagina with the sex toy. This was not an isolated incident, but occurred on several occasions between 2013 and October 2015. The objective seriousness of the offending was well above mid-range, and I accept the Crown’s submission that it was approaching the highest level for an offence pursuant to s 66A(2) of the Crimes Act.

Count 2 involved the offender performing cunnilingus on GW and filmed the act. It was also not an isolated act. I accept that the objective seriousness of the offending for an offence pursuant to s 66A(2) was above mid-range, however, it was not approaching the highest level of objective seriousness.

Count 3 involved the offender engaging in sexual intercourse with GW, both filming a male, not known to GW, performing cunnilingus on her. I accept the offender’s submission that this was above mid-range of objective seriousness for an offence pursuant to s 66A(2), and approaching the highest level of objective seriousness for such an offence.

Count 4 involved the offender filming GW holding a pink vibrator against her vagina and repeating the words “Daddy, I love you”. The offender then took hold of the vibrator and held it lower against GW’s vagina, and filmed that act. The offender then touched GW’s vagina with her finger and instructed her to place the vibrator, first on her vagina, and then to the area of GW’s anus so that the attached stimulus penetrated her anus. Again, the offender filmed the acts. The objective seriousness of this offending was well above mid-range, and approaching the highest level for an offence pursuant to s 66A(2).

Count 5 involved the offender spreading AW’s vagina and penetrating her external genitalia with a sex toy, focussing on her clitoris. The offender filmed the act. The offending was well above mid-range for an offence pursuant to s 66A(2), and was approaching the highest level of offending for that offence.

Count 6 involved the offender penetrating the anus of her son, BW, with a “wand” and taking photographs of the act. It was conduct, the objective seriousness of which, was well above mid-range,

Count 7 involved the offender fellating the penis of BW for about 10 minutes while she filmed the act. The objective seriousness of the offence was well above mid-range for an offence pursuant to s 66A(2).

Count 8 involved the offender possessing child abuse material on her i‑phone, Acer brand computer and hard drive. The vast majority of the child abuse material was of her three children that the offender had created. Also contained in Ex D were about 100 conversations between the offender and other persons online regarding child abuse material, and the material classified on the CETS Scale as Category 4. In her third ERISP interview the offender had admitted to being in possession of images of a young baby engaged in sexual behaviour, a 13 year old performing fellatio on an adult, and one of the online men’s niece and son both naked. The amount of material involved the classification of the material and the length of time over which the offending material was disseminated, means that the objective seriousness of the offending was well above mid-range for an offence pursuant to s 91H(2) of the Crimes Act.

In R v Booth [2009] NSWCCA 89, Simpson J said as follows in respect of the exploitation involved, and damage done to children in respect of offences pursuant to s 91H:

“41 In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.
42 What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.
43 And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) it provides further encouragement to expand their activities to those who create and purvey the material.”

General deterrence is important to the sentencing process here. Parliament has proscribed the maximum penalty of life imprisonment for each of the offences in Counts 1 to 7, and a Standard Non-Parole Period of 15 years imprisonment. Count 8, the offence pursuant to s 91H(2) of the Crimes Act, has a maximum penalty of 10 years imprisonment but no Standard Non‑Parole Period. The maximum penalties proscribed, and the Standard Non-Parole Periods proscribed in respect to Counts 1 to 7, are guideposts in the sentencing process. Offences pursuant to s 66A of the Crimes Act 1900 have been held to be among the most serious criminal offences in this State – see R v Gavel [2017] NSWCCA 56 at [91].
A clear message must be sent by way of general deterrence to like-minded persons in the community, that the court will impose condign punishment for sexual offences involving sexual intercourse with persons under the age of 10 years. The most vulnerable members of our community must be protected from this type of criminal conduct. The courts have long recognised the trauma caused to victims of child sex offences, both physical and psychological, and its duration in some cases over a life time. For obvious reasons, there are no victim impact statements here, however, given the extent of the offending over a period of two and a half years, and the tender ages of the children during that period, the abhorrent nature of the sexual acts to which they were submitted, together with the gross abuse of trust by their only carer, the harm caused to the victims must loom large in the sentencing process, pursuant to s 3A(g) of the CSPA – see R v Gavel, supra, at [104] – [112].
Specific deterrence is also important here. The offender must understand the very serious nature of her offending, which involved a pernicious abuse of the trust placed in her as a single parent of the three victims to prey on their vulnerability when they, as young children, had no capacity to resist or protect themselves.
The 18 offences being dealt with on Forms 1, as outlined above, all involve serious criminal offending. The maximum penalties in relation to those offences range from 6 to 14 years imprisonment, and some carry Standard Non-Parole periods of 6 or 8 years imprisonment. Thus, the counts to which those matters are to be taken into account, namely, Counts 2, 3, 4, 5 and 7, must involve some accumulation to reflect the matters on the Forms 1 relative to each count.
I accept, however, the offender’s submission that the offending in Count 8 was in the mid-range of objective seriousness, and does involve some overlap with some of the Form 1 offences.
The offender is entitled to a 25% utilitarian discount on sentence, given her early pleas of guilty. Those pleas of guilty also indicate some remorse on her part, as do the letters that she sent to each of her three children, the victims in her offending.
The offender did not give evidence and I therefore have approached the reports of Dr Lennings and Dr Adams with considerable caution as to the subjective matters outlined therein. Whilst the offender had a history of drug and alcohol abuse from age 14 years, that abuse did not lead to her offending. Nor did the fact that she had been sexually abused as a child lessen her moral culpability for the offending. Rather, I accept Dr Adams’ opinion that the offender’s personality structure was consistent with a diagnosis of Borderline Personality Disorder. The offender had suffered symptoms of depression, anxiety and PTSD in the context of her underlying Borderline Personality Disorder. I accept the cumulative effect of those psychological issues would have impacted on her judgment, her decision-making capacity and her consequential thinking during the period of the offending. This does not fully explain why she engaged in protracted and repeated inappropriate sexual behaviour with her own three children, and the aetiology of that criminal behaviour remains somewhat of a mystery. Neither Dr Lennings nor Dr Adams was able to diagnose her as suffering a Paedophilic Disorder, and it is clear that she will require extensive offence-based treatment whilst in custody.
I have taken into account that the offender ceased the criminal activity some four to five months before her arrest. Whilst this is not sufficient to mitigate the offending conduct, it does demonstrate that she had some insight into her criminal behaviour, and knew that it was wrong. None of the underlying psychological issues here lessens the moral culpability of the offender’s criminal behaviour. Indeed, upon her arrest, she demonstrated a capacity to lie to police and to minimise her role in the criminal conduct. I accept the Crown’s submission that in her ERISP interview, her demeanour was designed to exculpate her, however, I also accept the submission made by the offender that over time, she accepted full responsibility for her criminal conduct.
Given the uncertainty of her ultimate psychiatric diagnosis, it is impossible to predict the offender’s risk of recidivism, however, the sentence to be imposed is likely to be such that there will little risk to her own children at the time of her eventual release on parole.
I am prepared to find special circumstances here pursuant to s 44 of the CSPA. This is the offender’s first time in custody, and she otherwise had no criminal record. She will require extensive intervention whilst in custody for her offence-based treatment, together with drug and alcohol rehabilitative treatment. She will, however, require extensive supervision and rehabilitative treatment whilst on parole to allow her to reintegrate into the community after a lengthy time in custody.
I am satisfied that no sentence other than full time custody is warranted, pursuant to s 5 of the CSPA. However, I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. Before I do so, I will indicate the indicative sentences in respect of each offence, and the non-parole periods in respect of those offences which carry Standard Non‑Parole Periods. This involves transparency in the sentencing process. In arriving at the indicative sentences, I have taken into account the objective seriousness of each offence, as set out above, the accumulative effect of the Form 1 offences in respect of the counts to which they are relevant, the 25% utilitarian discount on sentence, and the other mitigating and subjective factors set out above.
The indicative sentences are as follows:

Count 1 – sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, which involved the offender instructing her daughter GW to play with her vagina and then manipulated GW’s vagina herself, spreading it with one hand and using a sex toy to rub GW’s clitoris before penetrating her vagina with the sex toy.

Indicative sentence - 12 years imprisonment with a non-parole period of 8 years imprisonment.

Count 2 – sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, which involved the offender performing cunnilingus on her daughter GW.

Indicative sentence – 10 years imprisonment with a non-parole period of 6 years imprisonment.

Count 3 – sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, which involved the offender allowing a male, not known to her daughter GW, to perform cunnilingus on her.

Indicative sentence – 12 years imprisonment with a non-parole period of 8 years imprisonment

Count 4 - sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, which involved the offender holding a vibrator against GW’s vagina and moving the vibrator towards the area of GW’s anus, causing the attached stimulus to penetrate her anus, whilst filming the act.

Indicative sentence – 9 years imprisonment with a non-parole period of 6 years imprisonment.

Count 5 - sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, involved offending against the offender’s daughter AW, in which the offender spread AW’s vagina and penetrated her external genitalia with a sex toy whilst filming the act.

Indicative sentence – 9 years imprisonment with a non-parole period of 6 years imprisonment.

Count 6 - sexual intercourse with person under 10 years pursuant to s 66A(2) involved conduct where the offender instructed her son BW to masturbate himself and provided him with a sex toy called a “wand”, which was pushed into his anus whilst she took three photographs of it. This was the only occasion on which he was penetrated.

Indicative sentence – 7 years and 6 months imprisonment with a non‑parole period of 5 years.

Count 7 - sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, involved the offender fellating BW for about 10 minutes, whilst she filmed that act.

Indicative sentence – 9 years imprisonment with a non-parole period of 6 years imprisonment.

Count 8 – possess child abuse material pursuant to s 91H(2) of the Crimes Act.

Indicative sentence – 3 years imprisonment.

In aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be just and appropriate to the totality of the offending behaviour.
In R v Van Ryn, supra, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentences for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:
The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

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

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

In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved.
The offending took place over a period of over two years, and involved the offender abusing each of her three children, and in the case of Count 3, allowing a male, unknown to her daughter GW, to have sexual intercourse with her. The offending involved vaginal penetration, digital penetration, anal penetration, cunnilingus and fellatio on children who were aged between four years and nine years. The conduct involved the use of sex toys on children and included penetrative sexual activity with each child whilst they were being filmed. The films taken of the various acts, and photographs, were then published on the internet. Clearly, a great deal of accumulation is required here so as to reflect the totality of the criminality involved in the offending.
I have, however, found special circumstances pursuant to s 44(2) of the CSPA, and therefore am prepared to vary the standard ratio of head sentence to non-parole period, but I have taken into account that the sentence to be imposed would carry a very lengthy parole period in any event. I intend to sentence the offender to an aggregate sentence of 25 years imprisonment, with a non-parole period of 17 years.

Orders

I make the following orders:

You are convicted of the following offences:

Count 1 – Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2)/s 66A of the Crimes Act 1900.
Count 2 – Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2)/s 66A of the Crimes Act 1900.
Count 3 – Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2) of the Crimes Act 1900.
Count 4 - Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2) of the Crimes Act 1900.
Count 5 - Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2) of the Crimes Act 1900.
Count 6 - Sexual intercourse with person under the age of 10 years, pursuant to s 66A(2)/s 66A of the Crimes Act 1900.
Count 7 - Sexual intercourse with person under 10 years in circumstances of aggravation, namely, under authority, pursuant to s 66A(2)/s 66A of the Crimes Act 1900.
Count 8 – On 8 March 2016, possess child abuse material pursuant to s 91H(2) of the Crimes Act 1900. The offence carries a maximum penalty of 10 years imprisonment and there is no Standard Non-Parole Period.

I have taken into account each of the matters listed on the Forms 1 in relation to Counts 2, 3, 4, 5 and 7. I have certified each of the Forms 1.

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

I sentence you to a non-parole period of 17 years to commence on 8 March 2016 and to terminate on 7 March 2033.

I sentence you to a balance of sentence of 8 years, to date from 8 March 2033 and to terminate on 7 March 2041.

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

Indicative sentences