R v Lau

[2022] NSWCCA 131

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

R v Lau [2022] NSWCCA 131

Hearing dates:

1 June 2022

Date of orders:

24 June 2022

Decision date:

24 June 2022

Before:

Adamson J at [1]
Bellew J at [2]
Lonergan J at [183]

Decision:

(1) The Crown appeal against sentence is allowed.

(2) The aggregate sentence imposed on the respondent in the District Court of New South Wales is quashed.

(3) In lieu thereof, the respondent is sentenced to an aggregate term of 15 years imprisonment commencing on 6 November 2019 and expiring on 5 November 2034.

(4) Specify a non-parole period of 11 years and 3 months imprisonment, commencing on 6 November 2019 and expiring on 5 February 2031.

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Crown appeal asserting manifest inadequacy of sentence – Multiple instances of sexual and related offending committed over a lengthy period of time on eight separate victims – Consistently predatory behaviour on the part of the respondent – Some of the offending planned – Serious breach of a position of trust towards the victims – Aggregate sentence of imprisonment for 10 years imposed with a non-parole period of 6 years and 6 months – Where Crown relied upon latent error – Where errors were identified in the reasons of the sentencing judge but not relied upon by the Crown – Factual errors and omissions – Inadequate reasons – Failure to properly assess the objective seriousness of the offending – Displacement between findings as to objective seriousness and indicative sentences – Brevity of the individual instances of offending of limited relevance – Necessity to apply the correct approach when sentencing for an offence to which a Form 1 attaches – Apparent error in not treating the fact that one episode of offending occurred in the victim’s home as an aggravating circumstance – Lack of clarity as to what aggravating circumstances were in fact taken into account – Confusion between matters which are relevant to the assessment of an offender’s subjective case and those which might justify a finding of special circumstances – Where the sentence imposed failed to recognise the fundamental purposes of sentencing – Necessity for the Court to intervene in order to maintain public confidence in the criminal justice system – Crown appeal allowed – Sentence quashed and the respondent re-sentenced

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Alesbhi v R; Esbhi v R [2018] NSWCCA 30

Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002

Butters v R [2010] NSWCCA 1

CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9

Collier v R [2012] NSWCCA 213

Corby v R [2010] NSWCCA 146

Cowling v R [2015] NSWCCA 213

Cranssen v The Queen (1936) 55 CLR 509; [1936] HCA 42

Croxon v R [2017] NSWCCA 213

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

EG v R [2015] NSWCCA 21

Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44

House v The King (1936) 55 CLR 499; [1936] HCA 40

JM v R [2014] NSWCCA 297

Jonson v R [2016] NSWCCA 286

Lai v R [2021] NSWCCA 217

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Matu v R [2019] NSWCCA 23

MLP v R [2014] NSWCCA 183

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Pfitzner v R [2010] NSWCCA 314

R v Cage [2006] NSWCCA 304

R v Carter [2003] NSWCCA 243

R v Daley [2010] NSWCCA 223

R v Egan [2016] NSWCCA 285

R v Elfar [2003] NSWCCA 358

R v Feuerstein [2005] NSWCCA 82

R v Fidow [2004] NSWCCA 172

R v Gavel [2014] NSWCCA 56

R v Harris [2007] NSWCCA 130

R v KNL [2005] NSWCCA 260

R v Matu [2019] NSWCCA 23

R v RMW [2016] NSWCCA 211

R v Simpson (2001), 53 NSWLR 704; [2001] NSWCCA 534

R v Tuuta [2014] NSWCCA 40

R V Van Ryn [2016] NSWCCA 1

R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42

R v Wheeler [2000] NSWCCA 34

RJA v R [2008] NSWCCA 137

Suleman v R [2009] NSWCCA 70

Taylor v R [2018] NSWCCA 255

TL v R [2020] NSWCCA 265

Weber v R [2020] NSWCCA 103

Whittaker v The King (1928) 41 CLR 230; [1928] HCA 28

Wong v The Queen (2001) 207 CLR 584; [2011] HCA 64

Yeung v R [2011] NSWCCA 52

Zuffo v R [2017] NSWCCA 187

Category:

Principal judgment

Parties:

Regina – Appellant
Alex Chak Lau – Respondent

Representation:

Counsel:
M England and D Beaufils – Appellant
G Huxley – Respondent

Solicitors:
C Hyland, Solicitor or Public Prosecutions (NSW) – Appellant
Matouk Joyner Lawyers – Respondent

File Number(s):

2019/349296

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

07 December 2021

Before:

Norton SC DCJ

File Number(s):

2019/349296

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent pleaded guilty to multiple counts of sexual and related offending. The offending involved a total of 8 separate victims ranging in age from 7 to 14, and encompassed:

1. 1 count of having sexual intercourse with a child under 10;

2. 2 counts of having aggravated sexual intercourse with a child under 16;

3. 1 count of having sexual intercourse with a child between the ages of 10 and 14;

4. 9 counts of indecent assault;

5. 2 counts of detaining a person for advantage (the advantage being sexual gratification);

6. 1 count of entering a dwelling with intent to commit the serious indictable offence of indecent assault, in circumstances of aggravation;

7. 1 count of breaking and entering a dwelling and committing the serious indictable offence of indecent assault on a child under the age of 16 in circumstances of aggravation; and

8. 1 count of possessing child abuse material.

The sentencing judge sentenced the respondent to an aggregate term of imprisonment of 10 years, with a non-parole period of 6 years and 6 months imprisonment. The Crown appealed against that sentence on the single ground of manifest inadequacy. In doing so, the Crown relied upon latent, as opposed to patent, error.

Held per Bellew J (Adamson and Lonergan JJ agreeing) allowing the Crown appeal, quashing the sentence imposed, and imposing in lieu thereof an aggregate sentence of 15 years imprisonment with a non-parole period of 11 years and 3 months imprisonment:

1. Although the Crown relied upon latent and not patent error, it was necessary to make a number of observations regarding aspects of the reasons of the sentencing judge: at [74].

2. Where agreed facts are summarised by a sentencing judge, it is necessary that any such summary be accurate, and that it include a reference to all material facts which bear upon an assessment of the objective seriousness of the offending. In the present case, errors and omissions meant that the true nature of the offending was not set out by the sentencing judge in her reasons: at [76].

3. The reasons of the sentencing judge were inadequate and failed to expose the reasoning process resulting in the various findings of objective seriousness which were made. The requirements of sentencing are not met by a bare recitation of facts. No proper assessment of the offending and its objective seriousness was undertaken: at [76]-[78].

Taylor v R [2018] NSWCCA 255; R v Cage [2006] NSWCCA 304 referred to.

4. The inadequacy of the reasons was compounded by conclusions as to objective seriousness of the offending which were expressed in terms of where the offending fell on a notional range. That approach was not necessary and added nothing substantive to any analysis. What was required was that the sentencing judge fully identify the facts, matters and circumstances which had a bearing on the assessment of objective seriousness: at [79].

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Yeung v R [2018] NSWCCA 52 referred to.

5. There was, in some instances, a displacement between the finding of objective seriousness and the indicative sentence: at [80].

6. The brevity of particular instances of offending, whilst not irrelevant, was of limited significance: at [81]-[82].

Cowling v R [2015] NSWCCA 213 referred to.

7. The sentencing judge’s assessment of aggravating factors was lacking in specificity and fell short of what was required: at [83].

R v RMW [2016] NSWCCA 211; R v Matu [2019] NSWCCA 23 referred to.

8. The approach taken by the sentencing judge to sentencing for those offences to which a Form 1 attached did not sit comfortably with the approach which has been set out by this Court: at [84]-[86].

Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 referred to.

9. It was not clear why the sentencing judge regarded one instance of offending as not having been aggravated by the fact that occurred in the victim’s home: at [87]-[90].

Jonson v R [2016] NSWCCA 286 referred to.

10. The finding of special circumstances appeared to confuse factors which might properly be taken into account in the general assessment of an offender’s subjective case, with factors which could support an adjustment of the statutory ratio between the total sentence and the non-parole period. It was difficult to determine why the evidence in the present case justified a finding of special circumstances: at [91]-[96].

R v Fidow [2004] NSWCCA 172; Collier v R [2012] NSWCCA 213; R v Tuuta [2014] NSWCCA 40 referred to.

11. The sentence imposed was manifestly inadequate and failed to meet the fundamental purposes of sentencing. There was no basis for this Court to exercise the residual discretion not to intervene. The inadequacy of the sentence was so marked that the Court’s intervention was required in order to maintain public confidence in the criminal justice system. This was so having regard to a series of factors including the multiplicity of offences, the number and ages of the victims, the planning involved in some instances, the generally predatory nature of the offending, and the gross breach of trust exhibited by the respondent: at [97]-[109].

12. The respondent’s subjective case was unremarkable. Whilst he was entitled to a discount of 25% to reflect the utilitarian value of his pleas of guilty, and had a limited criminal history, the evidence did not support a finding that he was remorseful and his prospects of rehabilitation were guarded, as was the assessment of his likelihood of reoffending: at [172]-[177].

13. There was a need for any sentence to reflect considerations of general deterrence, denunciation and protection of the community. Whilst it was necessary to apply principles of totality, those principles were not to be applied in a way which would allow the respondent to escape effective punishment for offences which followed successively upon one another throughout a sustained course of studied and deliberate offending: at [179].

R v Wheeler [2000] NSWCCA 34 referred to.

Judgment

1. ADAMSON J: I agree with Bellew J.

2. BELLEW J: Alex Chak Lau (the respondent) pleaded guilty in the District Court to multiple counts of sexual and related offending, the details of which are set out in full below. The sentence proceedings took place on 12 November 2021 and were limited to the tender of documentary evidence and submissions. No oral evidence was given. Following the conclusion of the sentence proceedings, the sentencing judge reserved her decision.

3. On 7 December 2021, her Honour imposed an aggregate sentence of 10 years’ imprisonment with a non-parole period of 6 years and 6 months.

4. On 20 December 2021, the Director of Public Prosecutions filed a notice of appeal. The single ground of appeal relied upon is that the sentence imposed was manifestly inadequate.

THE CHARGES AGAINST THE RESPONDENT AND THE FINDINGS OF THE SENTENCING JUDGE

5. The written submissions of the Crown included a table setting out each offence to which the respondent pleaded guilty, a precis of the Crown case, the applicable maximum penalty, any applicable standard non-parole period, the indicative sentence, and the finding of the sentencing judge as to objective seriousness. That table has been broken down and reproduced below, supplemented by the reasons of the sentencing judge in respect of each episode of offending.

6. In order to understand the scope of the respondent’s offending, it is convenient to note at this point that it involved eight separate victims. As there is some inconsistency in the material in relation to the ages of some of the victims, I have adopted approximations of their age where necessary:

1. KL, a 7 year old girl whose parents were friends of the respondent and his wife, and against whom 1 offence ^[1] was committed;

   1. Sequence 2.

2. JL, an 8 year old girl and the sister of KL, against whom 3 offences ^[2] were committed;

   2. Sequences 4 (Form 1), 5 and 6.

3. CWH, a boy between about 10 and 14 years of age, who was a school friend of the respondent’s son, and against whom 11 offences ^[3] were committed;

   3. Sequences 7, 8 (Form 1), 9, 10, 11, 12, 14, 16, 26, 27 (Form 1) and 30.

4. RH, a boy about 12 years of age, who was a school friend of the respondent’s son, and against whom 1 offence ^[4] was committed;

5. JC, a boy between 12 and 13 years of age, who was a school friend of the respondent’s son, and against whom 1 offence ^[5] was committed;

6. IB, a boy about 12 years of age, who was a school friend of the respondent’s son, and against whom 1 offence ^[6] was committed;

7. BH, a boy between about 14 and 15 years of age, who was a school friend of the respondent’s son, and against whom 2 offences ^[7] were committed; and

8. ID, a boy between 13 and 14 years of age, who was a school friend of the respondent’s son, and against whom 1 offence ^[8] was committed.

   4. Sequence 29.

   5. Sequence 21.

   6. Sequence 19.

   7. Sequences 21 (Form 1) and 22.

   8. Sequence 18.

7. There was one further offence of possessing child abuse material ^[9] which was not committed against any named victim and which, in that sense, stands apart from the balance of the offending.

   9. Sequence 23.

8. Comprehensive agreed facts were tendered on sentence which were summarised by the sentencing judge in her Honour’s reasons. On some occasions, her Honour’s summary did not accurately record aspects of the facts which had been agreed. On other occasions, the summary either omitted agreed facts which were material to the task of assessing the objective seriousness of the offending, or otherwise failed to properly set out the true nature of the offending. In addressing her Honour’s reasons below, I have indicated the instances in which such errors and omissions occurred.

Sequence 2

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 1: KL
2	Sexual intercourse child under 10, s66A (offender’s penis in mouth while child asleep in her bed, offender took photo) Date: December 2008	25 years SNPP 15 years	Below mid-range	4y 6m NPP 2y 11m 3d

9. The sentencing judge said the following in respect of this offending: ^[10]

   10. AB 11 – 12.

“KL was born in November 2001 …

The victim's parents were friendly with [the respondent] and his wife. In December 2008 [the respondent] and his family stayed for one week at the home of the victim. KL was 7 and shared a bedroom with her sister JL.

K and J were asleep. K awoke and saw [the respondent] in the doorway. [The respondent] walked towards the bed, moved the bed coverings, pulled down her pants. K pretended to be asleep. [The respondent] removed his penis from his pants and placed it on her mouth and slightly into her mouth past her lips, whilst doing this [the respondent] took a photograph. K rolled over and [the respondent] left the room ...

The Crown noted that the victim has [sic] just turned 7 and [the respondent] photographed the conduct. It was accepted the offence lasted only a short time, and it was said the offending fell within the lower mid-range.

The defence noted that the victim was 7 and [the respondent] 37, which is a significant age difference, and that his penis only slightly went past her lips. It was said the offending fell below mid-range.

The Crown has submitted that the offence was aggravated as it occurred in the victim's home in her own bed. The defence agreed that the victim was in her own home and had a right to feel safe. It was noted that it occurred in the presence of her sister, but there was nothing to suggest her sister was awake.

The Crown submitted that there was further aggravation in that [the respondent] was a close family friend and was visiting their home and thus there was a breach of trust. The defence did not accept that there is any relevant breach of trust ...

This is serious offending. The victim was young and was well under the maximum age covered by the offence. It occurred for a short period and [the respondent] photographed the conduct. It occurred in her own home where she had a right to feel safe. It occurred in the presence of her sister, which I accept, but I accept there is no evidence the sister awoke. I accept that it occurred in her home and [the respondent] was a family friend, but that is part of the background facts rather than a separate aggravating feature. I find the offending is just below mid-range.”

10. Her Honour’s summary of the offending omitted any reference to the agreed facts that having removed his penis from his pants, the respondent put it on the victim’s face, then put it on her mouth, and then slightly into her mouth past her lips. ^[11]

    11. AB 80 at [17].

Sequence 5

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 2: JL
5	Indecent assault child under 16, s61M(2)	10 years SNPP 8 years	Just below mid-range	1y 6m NPP 11m 21d

11. The sentencing judge said the following in respect of this offending: ^[12]

“JL was born in July 2000.

J was 8 years old.

In May 2009 J's family stayed overnight in [the respondent's] home. The four [sic] children were asleep in one room. J saw the room get more light and saw [the respondent] enter the room. She shut her eyes and lay still. [The respondent] removed the blanket, loosened her clothing, and then ran two of his fingers quickly across the front part of her vagina.

The Crown noted that the victim was between 8 and 9 years, whilst the provision covers children under 16, and the touching occurred beneath the clothing and directly on her vagina. It occurred whilst there were three in other children asleep in the room, and that KL awoke. The Crown submitted it was mid-range.

The defence accepted that JL was well below the age limit and there was a significant age difference. The defence submitted that there was no indication the other child was aware of what was happening. The defence submitted that the offending was opportunistic and unplanned, and was at, or just below mid-range.

I find that the offending was brief, largely opportunistic, but nevertheless serious offending. It occurred in [the respondent's] home. I find it was just below mid-range.”

12. AB 12 – 13.

12. The agreed facts record^[13] that there were in fact five children in the bedroom at the time of the offending, not four as her Honour stated.

    13. AB 81 at [24].

Sequence 4

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 2: JL
4	Form 1 attaching to sequence 5: Indecent assault child under 16, s61M(2) (hand grabbed vagina over towel after shower) Date: March – May 2009	10 years SNPP 8 years	NPP 11m 21d

13. The sentencing judge said the following in respect of this offending: ^[14]

“J was 7 or 8 years old.

Between 25 March 2009 and 7 May 2009 J’s parents were overseas and she was being cared for at her grandparents' home. [The respondent] collected K and J for a sleepover at [his] house.

[The respondent] came in the bathroom whilst drying J. He stood behind her and put pressure on the front of her vagina, then grabbed her vagina through the towel, this caused her to cry out in pain and [the respondent] left.

As noted in the defence submissions, the Form 1 offence occurred at around the same period of time, and is similar in nature, and thus would warrant a small increase in the penalty imposed in the principal offence. I consider it appropriate to take the Form 1 matter into account. It is a serious matter in its own right and places some upward pressure on the appropriate sentence.

The Crown submitted the offending was aggravated because [the respondent] abused a position of trust as the offending occurred at his home. I note that J's entire family stayed overnight at [the respondent's] home.

I accept the defence submission that the offending represents a breach of trust but that breach is not within the factors envisaged by s 21A, but rather forms part of the overall factual matrix.”

14. AB 13 – 14.

14. Contrary to what was recorded by the sentencing judge, the agreed facts stated that it was the respondent's wife, and not the respondent, who had collected K and J from their grandparents’ home. ^[15] Further, her Honour omitted to record the fact that K and J had showered together, and that it was when K left the bathroom that the respondent entered. ^[16] Finally, her Honour’s statement that the respondent “came into the bathroom whilst drying J” did not accurately reflect the agreed fact that the respondent had in fact entered the bathroom and said to the victim that he would dry her. ^[17]

    15. AB 80 at [21].

    16. AB 80 at [22].

    17. AB 80 at [22].

Sequence 6

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 2: JL
6	Indecent assault child under 16, s61M(2) (same incident as 5; offender used child’s hand to masturbate himself) Date: March – May 2009	10 years SNPP 8 years	Mid-range	2y 3m NPP 1y 5m 17d

15. The sentencing judge said the following in respect of this offending: ^[18]

“This occurred directly after sequence 5. [The respondent] took hold of J’s left hand and wrapped her other hand around his penis. He held her hand on his penis and moved it back and forwards to masturbate him. The victim was scared and confused, and afterwards did not want to sleep in case something else happened. K said, ‘What are you doing?’ and [the respondent] left the room.

The Crown made similar submissions as those made with respect to sequence 5.

The defence submitted that the offence was at, or just above, mid-range, and again submitted the breach of trust formed part of the overall factual matrix and did not engage s 21A.

I accept that the facts show that K was awake towards the end of this offending. I find the offending is mid-range of objective seriousness, and the breach of trust is part of the context of the offending.”

18. AB 14 – 15.

Sequences 7 and 8

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 3: CWH
7 8	Indecent assault child under 16, s61M(2) (masturbated victim, tried to place victim’s hand on respondent’s penis) Form 1 attaching to sequence 2: Indecent assault child under 16, s61M(2) (masturbated self and victim) Date: Sept 2010 – 2012	10 years SNPP 8 years	Just above mid-range	3y 9m NPP 2y 5m 7d

16. The sentencing judge said the following in respect of the offending in sequence 7: ^[19]

“CWH was born in August 1988. [The respondent’s] sons attended the same school as CWH and the three boys became friends.

In 2010 when CWH was ten or 12 he had been swimming in the pool at [the respondent's] home. [The respondent] said he could shower in the ensuite attached to [his] bedroom.

CWH entered the bedroom and closed the door. [The respondent] followed him in and touched his hips from behind. CWH asked what he was doing and [the respondent] put his hand inside CWH’s clothing, touched him on the genitalia and took hold of his penis. CWH froze and [the respondent] repeatedly tried to put CWH's hand on [his] hard penis. [The respondent] masturbated CWH for time. [The respondent] stopped and then left the bathroom.

The Crown submitted that this offending was mid-range, noting the age of the victim, and that [the respondent] repeatedly tried to put CWH's hand onto [the respondent’s] penis.

The defence conceded that this was extremely direct and intrusive physical conduct [sic] and [the respondent] ignored the victim's resistance, but submitted that it was opportunistic and unplanned, and fell just above mid-range.

I note there was a significant age difference and I accept that it was a direct physical conduct [sic] and [the respondent] ignored the victim's resistance. I accept it was largely opportunistic. I find this offending mid-range.”

19. AB 15.

17. Her Honour's summary of this offending omitted a number of material facts which were agreed. They included the fact that the victim had specifically asked the respondent to stop touching him, and that the respondent ignored that request and continued to touch, and then masturbate, the victim. ^[20]

    20. AB 82 at [34]-[35].

18. In respect of sequence 8 (the Form 1 offence attached to sequence 7) her Honour said the following: ^[21]

“About one week after sequence 7 CWH was at [the respondent's] home and [the respondent] asked him for help with the computer. [The respondent] pushed CWH into the bedroom and made them both face the mirror. [The

respondent] pulled down his shorts exposing his penis, and then pulled down CWH's shorts and masturbated both himself. CWH froze, [the respondent] stopped.

This offending is very similar in nature and is a serious offence in its own right. I find it appropriate to take it into account when considering sequence 7 and it warrants a small increase in the penalty for sequence 7.”

21. AB 15 – 16.

19. Again, her Honour’s summary of this offending omitted a number of material facts, including the precise circumstances in which the respondent had sought “help” with the computer, from which the only available inference was that he had deliberately deceived the victim in order to facilitate his offending. ^[22]

    22. AB 83 at [38].

Sequences 9 and 10

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 3: CWH
9	Indecent assault child under 16, s61M(2) (masturbated victim after locking him in the car, tried to put victim’s hand on respondent’s penis while offender masturbated himself) Date: Sept 2010 – 2012	10 years SNPP 8 years	Just above mid-range	3y 9m NPP 2y 5m 7d
10	Detain for advantage (sexual gratification), s86(1)(b) Date: Sept 2010 – 2012	14 years	Just below mid-range	2y 3m

20. The sentencing judge said the following in respect of this offending: ^[23]

“These offences occurred on the same day in 2011 when CWH was 12 or 13. [The respondent] offered CWH a lift home from school and drove him to [the respondent's] home to spend time with [his] children. When it became dark [the respondent] offered to drive CWH home but stopped in a carpark of the pre-school. CWH asked what they were doing there and [the respondent] locked the doors (sequence 10).

[The respondent] pushed CWH's seat back, placed his hands down the front of CWH's pants and masturbated him. CWH tried unsuccessfully to get out. [The respondent] tried unsuccessfully to get CWH to masturbate him. [The respondent] stopped masturbating CWH after saying ‘Why is this not working?’ (sequence 9).

The Crown noted that the victim had tried to get out but was unable to do so and that the offending involved a degree of planning, and falls towards the middle range of objective seriousness.

The defence submitted that the offending appears opportunistic with limited planning and the detention was for a short period. It was acknowledged that the indecent assault is a serious example and it was said that the offending sits just above mid-range, and the detention just below mid-range.

The indecent assault is a serious example of offending of this kind, and was followed by, what must have been the victim, a bewildering and hurtful statement made by [the respondent]. I find sequence 9 is around, or just above, mid-range. The detention (sequence 10) is just below mid-range, noting it was for a short time.”

23. AB 16 – 17.

Sequences 11, 12 and 27

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 3: CWH
11 27	Aggravated sexual assault (under 16), s61J(1) (fellatio on victim after locking in the car) Form 1 attaching to sequence 11: Indecent assault child under 16, s61M(2) (same incident as 11, masturbating victim prior) Date: Sept 2010 – 2012	20 years SNPP 10 years	Mid-range	4y 6m NPP 2y 11m 3d
12	Detain for advantage (sexual gratification), s86(1)(b) Date: Sept 2010 – 2012	14 years	Just below mid-range	2y 3m

21. The sentencing judge said the following in respect of this offending: ^[24]

“When CWH was aged 11 or 13 [the respondent] again drove him to a car park on the way home from [the respondent's] home. [The respondent] locked the doors and CWH tried unsuccessfully to get out (sequence 12). [The respondent] put his hands inside CWH's shorts and masturbated his penis which did not become erect (sequence 27).

[The respondent] then pulled CWH's penis out of his shorts and began to suck his penis knowing CWH was not consenting. [The respondent] nibbled CWH's penis which caused him pain (sequence 11). [The respondent] drove to CWH’s home and CWH was in shock and found it hard to breathe.

The Crown submitted that this sequence of offending falls between the middle and upper end of the scale of objective seriousness. It was submitted that it was aggravated by degree of planning and involved an abuse of trust. It was said that sequence 11 fell between the middle and upper end of the scale of objective seriousness.

The defence submitted that sequence 12 was below mid-range, as was sequence 11. It was noted the offending represents an escalation of the previous offending and conceded that there was some degree of premeditation and planning. It was said that the totality of the offending sits at, or just below, mid-range.

[In terms of sequence 11 the respondent] was well aware the victim did not consent to the activity. [The respondent] also caused the victim pain, and there was skin on skin, and other physical contact. The offending involved an exploitation of CWH’s youth and it could not be described as being out of character. I find this offending is towards the high end of mid-range, noting it involved a degree of premeditation and planning.

Form 1 [sequence 27] offence is a serious offence and puts upward pressure on the appropriate sentence. I find it appropriate to take the Form 1 offence into account.

[In respect of sequence 12 the respondent] drove the victim to the carpark and prevented him from leaving the car. He kept the doors locked even after the victim tried to get out. I find this offending is similar to that in sequence 9 and is just below mid-range.”

24. AB 17 – 19.

22. Her Honour found the offending in sequence 12 to be “just below mid-range”, on the basis that it was “similar to that in sequence 9”. Sequence 12 was an offence of detaining a person for advantage. Sequence 9 was an offence of indecent assault. The two offences were therefore entirely different. Moreover, her Honour's finding in respect of the offending in sequence 9 ^[25] was that it was “around, or just above, mid-range”. As set out above, her Honour’s finding in respect of the offending in sequence 12 was that it was “just below mid-range”. There is a significant inconsistency between these conclusions.

    25. At [20] above.

Sequence 30

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 3: CWH
30	Sexual intercourse child > 10 < 14, s66C(1) (fellatio in the car) Date: Sept 2010 – 2012	16 years	Mid-range	4y 1m

23. The sentencing judge said the following in respect of this offending: ^[26]

“In the same year [the respondent's] son asked to come in the car when [the respondent] was driving CWH home but [the respondent] refused. [He] again drove to the carpark and pulled out CWH's penis and placed it in his mouth. [The respondent] again nibbled CWH's penis with his teeth causing pain. This activity continued for about five minutes before [the respondent] ceased and drove CWH home.

The Crown noted that the offence occurred for about five minutes and [the respondent] again caused pain to the victim. It was said that there was an abuse of trust which aggravates the offence pursuant to s 21A(2). It was said that the offending falls towards the middle of the range.

On behalf of the defence it was submitted that the offending occurred for about five minutes and involved some degree of planning that was just below mid-range.

The car door was not locked on this occasion and the offending was relatively brief but it caused the victim pain, and [the respondent] was well aware the victim was not consenting. I find this offending is mid-range and although [the respondent] was in a position of trust I do not find that it falls within s 21A(2) so as to amount to an aggravating feature.”

26. AB 18 – 19.

24. Her Honour’s summary of this offending omitted the agreed fact that the respondent had used his thumb and forefinger to pull the victim’s foreskin back. ^[27]

    27. AB 85 at [55].

Sequences 14 and 26

Seq		Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 3: CWH
26	Aggravated enter dwelling with intent (persons present, serious indictable offence: indecent assault)), s111(2) (appeared in victim’s house whilst he was home alone, was asked to leave but didn’t) Date: Sept 2010 – 2012		14 years	Low end of mid-range	2y 3m
14	Indecent assault child under 16, s61M(2) (masturbated victim while victim was held down) Date: Sept 2010 – 2012		10 years SNPP 8 years	Above mid-range	4y 6m NPP 2y 11m 3d

25. The sentencing judge said the following in respect of this offending: ^[28]

“CWH was home alone playing video games and looked up and saw [the respondent]. CWH asked [the respondent] to leave but he did not move. CWH pushed [the respondent] in the chest and told him to get out. CWH sat on the lounge and [the respondent] sat next to him and placed his hand inside CWH's shorts and on his testicle and penis. CWH tried to push [the respondent's] hand away but was overpowered. [The respondent] used one of his hands to hold CWH down and the other inside [sic] CWH's pants. CWH asked him to ‘Please not do this’ and to ‘Please fuck off’. [The respondent] masturbated CWH and became frustrated when it did not work. CWH told him that ‘Nothing you can do will work anymore’ and [the respondent] asked ‘Why not?’

[The respondent] left but returned two days later and CWH saw him standing in the doorway. [The respondent] said he was waiting for CWH and was told to wait outside. CWH pushed past him and got a knife from the kitchen and threatened to call the police. [The respondent] left.

The Crown submitted that the indecent assault was towards the upper end of objective seriousness as it occurred in the victim's home, involved force, direct contact with the victim's penis, when he was aged between 12 to 13 years.

The defence submissions noted that the offence occurred in the victim's home where he should have been able to feel safe, and [the respondent] persisted despite physical resistance from the victim. He stopped only when the victim did not obtain an erection. It was said that the indecent assault was at, or just above, mid-range.

The indecent assault is a very serious offence. It occurred in the victim's home, and [the respondent] continued with his behaviour and overpowered the much younger victim's resistance. He was asked to ‘Please not continue’ but he continued until such time as he became frustrated with his lack of success.

I find this offending, which clearly involves skin on skin, is just above mid-range of objective seriousness.

Sequence 26 was said by the Crown to be particularly serious as it involved an intent to commit an offence carrying a standard non-parole period of eight years. The defence submitted that the enter the dwelling house was below mid-range. I find the enter the dwelling house was at the low end of mid-range.”

28. AB 19 – 21.

26. The sentencing judge’s summary of this offending omitted the material fact that after the respondent had broken into the victim’s house, the victim told him multiple times to leave and/or to stop the offending, and that those requests were completely ignored by the respondent who simply continued his offending. ^[29] Further, her Honour’s classification of offending in sequence 26 as “enter dwelling house” overlooked that what had in fact been charged was the aggravated form of that offence.

    29. AB 85 at [58] – [60].

Sequence 16

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 3: CWH
16	Break and enter and commit serious indictable offence (indecent assault child under 16), s112(1)(a) (victim fell asleep playing videogames; awoke to being masturbated by offender while offender masturbating himself) Date: Sept 2010 – 2012	14 years	Mid-range	2y 7m 15d

27. The sentencing judge said the following in respect of this offending (which was incorrectly referred to as sequence 1 in her Honour’s reasons): ^[30]

“The following week, CWH closed the screen door after returning home and fell asleep while playing a video game. He awoke to find [the respondent] had one hand inside his pants and the other inside CWH’s pants. CWH was unable to move because [the respondent] was sitting on one of his hands. [The respondent] became angry and told CWH there was something wrong with him because his penis was not erect.

The Crown submitted that this was a serious offence which was brazen and unwarranted given the context of what had occurred the previous week. The defence submissions noted [the respondent] restrained the victim by sitting on his hands and submitted that the offending was just below the mid-range.

The victim was asleep in his own home where he was entitled to feel safe. [The respondent] not only restrained the victim but suggested there was something wrong with him. It is not the victim that had anything wrong with him. I find this offending is mid-range.”

30. AB 21.

Sequence 29

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 4: RH
29	Indecent assault child under 16, s61M(2) (hand running up leg to thigh while victim was in bed) Date: 2011	10 years SNPP 8 years	Well below mid-range	1y 1m 15d NPP 8m 23d

28. The sentencing judge said the following in respect of this offending: ^[31]

“From 2011 to 2015 RH was a school friend of [the respondent’s] son.

When RH was about 12 he went for a sleepover at [the respondent's] home sharing a room with ML. ^[32] [The respondent] entered the room, checked his son was asleep, and then placed his hand on RH's ankle and moved it up his leg. RH pretended to wake up and moved his body towards the wall saying, ‘What are you doing?’ [The respondent] apologised and left. RH was shaken and returned home early the next day.

The Crown submitted the offending was at the lower to mid-range in light of the nature and duration, and the victim's age.

The defence submitted that it assumed it involved skin on skin contact of some short duration in the home of [the respondent] and in the presence of another child. The offending only ceased when the victim challenged [the respondent]. It was said this offending is well below mid-range.

I agree with the submissions of the defence and find this offence well below mid-range.”

31. AB 21 – 22.

32. ML and DL were the respondent’s sons.

29. Her Honour’s summary of this offending omitted to refer to the agreed fact that prior to assaulting the victim, and in the course of taking the step of checking if ML was asleep, the respondent had gone to the lengths of pretending to tuck ML in, as well as the agreed fact that the respondent moved his hand up the victim’s leg, reaching the point of his thigh. ^[33]

    33. AB 87 at [73]-[74].

Sequence 20

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 5: JC
20	Indecent assault child under 16, s61M(2) (lubricated victim’s penis while victim was asleep in bed) Date: 2011	10 years SNPP 8 years	Towards the low end	9m NPP 5m 26d

30. This sequence was referred to in the reasons of the sentencing judge (and in the agreed facts) as sequence 21. By reference to the Charge Certificate ^[34] it was in fact sequence 20 (and the sole offence committed against the victim JC). The sentencing judge said the following in respect of this offending: ^[35]

JC was in the same friendship group as RH.

JC stayed overnight at [the respondent's] home when he was 12 or 13 and shared a room with ML. [The respondent] entered the room when JC was asleep, loosened his track pants, and placed lubricant on his penis. JC awoke and asked “What the fuck he was doing?" and [the respondent] said he was “just tucking him in" and left.

The Crown again submitted that this offending was in the lower to mid-range of objective seriousness.

The defence submitted it was towards the lower end of objective seriousness.

This offence did not involve any skin on skin contact but involved placing lubricant on the victim's penis. It only stopped because the victim asked what [the respondent] was doing. I find this offending is towards the lower end of objective seriousness.

34. AB 52.

35. AB 22 – 23.

31. The sentencing judge's account of the conversation which took place between JC and the respondent during the course of this offending was partly at odds with the agreed facts, which recorded^[36] that the victim had said “What’s going on?” and the respondent had replied ‘I’m just tucking you in, Don’t worry’ about it.

    36. AB 87 at [81].

32. I should also say that, in my view, her Honour’s finding that this offending “did not involve any skin on skin contact” had a tendency to draw a distinction without a difference. In the context of this particular offending, there is no material divergence between skin on skin contact on the one hand, and placing lubricant on a victim's genitalia on the other.

Sequence 19

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 6: IB
19	Aggravated sexual assault (under 16), s61J(1) (fellatio on victim while victim asleep in bed) Date: 2012	20 years SNPP 10 years	Just below mid-range	3y 9m NPP 2y 5m

33. The sentencing judge said the following in respect of this offending: ^[37]

“IB was in the same friendship group until he moved in 2012 and he spent time with [the respondent's] family.

When IB was 12 he noticed [the respondent] would sit beside him and touch him. One school night when he was asleep in ML's room he woke at about 2 or 3am to feel someone touching him. [The respondent] had pulled down IB's pants and was performing fellatio on him whilst he was asleep. When IB awoke [the respondent] apologised and left.

The Crown submitted that this offending falls towards the lower to middle range of objective seriousness as it occurred when the victim was asleep for a couple of minutes until he awoke.

On behalf of the defence it was conceded the offending involved a degree of planning and occurred in the middle of the night and, as IB had been on holidays with [the respondent’s] family, s 21A(2)(K) [sic] might be engaged. It was submitted that the offending was well below mid-range and represented a breach of trust generally.

IB was a close friend of [the respondent's] son. The offending occurred in the middle of the night and involved skin on skin contact. It is not clear how long it continued. I find the offending just below mid-range. I accept that there is a greater element of breach of trust in this offence, but accept the defence submission that it represents a breach of trust generally.”

37. AB 23 – 24.

34. The summary of this offending by the sentencing judge incorrectly stated that the victim had been asleep in ML’s room at the time of the offending. The agreed facts recorded^[38] that the victim “was asked to sleep in the spare room, which was unusual as normally he slept in [ML’s] room”. That agreed fact was not without significance in terms of an assessment of the objective seriousness of the offending, the clear inference being that it was the respondent who had specifically brought about those circumstances in order to assist in the commission of the offending.

    38. AB 88 at [87].

Sequences 21 and 22

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 7: BH
22 21	Indecent assault child under 16, s61M(2) (touching legs towards genitals while asleep) Form 1 attaching to sequence 22: Indecent assault child under 16, s61M(2) (touching on thigh towards testicles while watching a movie earlier) Date: 2013 – 2014	10 years SNPP 8 years	Just below mid-range	1y 6m NPP 11m 21d

35. The sentencing judge said the following in respect of this offending: ^[39]

“BH was in the same year at school as ML.

BH was 14 or 15 years old and had been invited to stay the night after attending a Scouts meeting. [The respondent] sat next to BH when he was watching a movie with ML and placed his hand on BH's inner thigh and rubbed it. He moved his hand closer and touched BH's testicles. BH felt degraded (sequence 22).

BH slept on the couch in the spare room and woke at 6 or 7am and found the [respondent’s] hand between his legs moving towards his genitalia. The victim moved and [the respondent] left (sequence 21). The victim saw him leave the room.

The Crown submitted that it was lower to middle range in light of the nature of the touching, the age of the victim, and the duration of the offence.

[Counsel for the respondent] noted BH was close to the upper age limit and all of the conduct was outside the clothing. It was submitted that the offending was below mid-range.

The facts do not establish that there was skin on skin contact. The victim was at the upper end of the age limit for this offence. I find the offence just below mid-range.

The Form 1 offence occurred on the same day and find it appropriate to take that offence into account and that it places some upward pressure on the appropriate sentence.”

39. AB 24 – 25.

36. Her Honour's summary of the offending in sequence 21 omitted a number of agreed facts which were material to the assessment of objective seriousness. They included the fact that when the respondent entered the room and sat next to the victim, he attempted to touch the victim’s penis (but was not able to do so in light of the position in which the victim was sitting), that he touched the victim’s testicles on two occasions, and that having left the room, he then returned and put his hand on the victim’s inner thigh for a second time. ^[40]

    40. AB 89 at [92].

Sequence 18

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
Victim 8: ID
18	Indecent assault child under 16, s61M(2) (hand on thigh and then genitals during movie) Date: 2016	10 years SNPP 8 years	Below mid-range	1y 1m 15d NPP 8m 23d

37. The sentencing judge said the following in respect of this offending: ^[41]

“ID was a friend of DL.

In 2016 when ID was 13 or 14 he went to [the respondent's] home after school and watched a movie. [The respondent] came into the room and sat on the stool and ID lent [sic] as far away as he could. [The respondent] rubbed ID’s knee and then moved his hand up his leg towards his crutch. [The respondent] told the victim that it was fine. [The respondent's] hand brushed across ID's penis on the outside of his clothing resting on his crutch. ID moved to the edge of the stool and [the respondent] left the room when the movie ended.

The Crown submitted the offending was in the lower to mid-range and noted it occurred while DL was in the room.

The defence submitted the offending was below mid-range but not significantly so.

The offending was brief and did not involve skin on skin contact. I accept that there were other people in the room but there is no evidence that they were aware of what was happening. I find this offending is just below mid-range.”

41. AB 25.

Sequence 23   

Seq	Offence	Max penalty	Finding: objective seriousness	Indicative sentence (after 25% discount)
N/A
23	Possess child abuse material, s91H(2) (2 x videos of children in sexual activity) Date: 6/11/19	10 years	Well below mid-range	9 months

38. The sentencing judge said the following in respect of this offending: ^[42]

On 6 November police arrested [the respondent] and searched his home. In the course of that search they found a SIM card which contained two videos depicting children under the age of 16 engaged in sexual activity category 1.

These facts are the basis of the final offence, which is possess child abuse material, sequence 23.

[Counsel for the respondent] submitted that given the small number of videos compared what is often seen in matters such as this it is low range.

The only details are available are that there are two videos of children engaged in sexual activity who are under 16 years of age. This Court does indeed often see instances where there are thousands of videos, sometimes with children who are much younger. I find this offence is well below mid-range.

42. AB 25 – 26.

THE VICTIM IMPACT STATEMENTS

39. Victim impact statements of CWH and JB were tendered before the sentencing judge. ^[43]

    43. AB 105 – 109.

40. By reference to the statement of CWH, her Honour observed that: ^[44]

(i) prior to the offending, CWH had been very social, outgoing and self-confident;

(ii) during the period of the offending he had felt uncomfortable, had thoughts of killing himself, sought comfort in food, and detached himself from his family and friends which resulted in being isolated and ruining friendships;

(iii) he had felt trapped because the respondent knew where he lived;

(iv) he had felt ashamed that he could not tell his mother, or anyone else, what had happened, and became argumentative and offensive;

(v) there had been an improvement in his condition, in that he felt safer, and was now “doing a lot better" and was “tearing down the barriers”; and

(vi) there had since been a restoration of the bond between CWH and his mother, a return of his self-confidence, and the acquiring of new friendships.

44. AB 26.

41. By reference to the statement of JB, her Honour observed that: ^[45]

    45. AB 26 – 27.

(i) JB initially felt shrouded in guilt and dirtiness, which led to “wedges" in his friendships with IB and ML;

(ii) reporting the event to his school resulted in his being sent to another school, which he described a “gulag”;

(iii) the offending and its consequences had led him to have a hatred for authority;

(iv) JB was very upset about what had happened to IB, which had an impact on his (JB’s) relationship with ML as well;

(v) JB had felt the need to prove his sexual orientation, and had experienced difficulty in relationships;

(vi) JB had suffered from interrupted sleep, but had expressed a hope that this could improve with the conclusion of the proceedings against the respondent; and

(vii) he remained guarded, and felt vulnerable if he relaxed, but was proud of the fact that he and IB had brought these matters to light, and “for making it though [sic] the following ordeal”.

THE RESPONDENT'S SUBJECTIVE CASE

The evidence

42. As I have noted, the respondent did not give oral evidence in the sentencing proceedings. A report of Dr Sathish Dayalan, Forensic Psychiatrist, was tendered in his case on sentence. ^[46] In terms of the respondent’s offending, and based on the history provided to him by the respondent, Dr Dayalan reported: ^[47]

“[The respondent] struggled to explain why he had engaged in the offending behaviour. He admitted to have ruminated about his offending behaviour especially since his inca’ceration. He remarked ‘I had no idea as to what was going on in my life’. He claimed that at the time of the offending, he had not appreciated the impact of his behaviour upon the victims. He admitted to have experienced a sense of excitement when he had engaged in the offending behaviour.

[The respondent] said that he had stopped engaging in offending behaviour some years prior to his arrest despite one of the victims prompting him to continue the offending behaviour. When asked what made him stop the offending behaviour, he responded ‘it was no good for me because it is not the right thing’. After the last offence committed, he had taken efforts to avoid close contact with children including young relatives of his wife.

On reflection, [the respondent] said ‘I am very sorry for them… because it was not right… it's affecting on them’. When asked how his behaviour might have affected the victims he responded ‘may be psychologically. When asked for further details, he said ‘I am not sure’.

He acknowledged that his offences were serious in nature and kept repeating it was ‘not right’. He also regretted his actions as he has lost family and employment. He admitted to have felt suicidal for the first two months of being in gaol but had refrained from acting on the thoughts as he believed he had to ‘pay back’ for his offences.”

46. AB 112 – AB 119.

47. AB 114.

43. In terms of matters bearing upon the respondent's prospects of rehabilitation, Dr Dayalan said: ^[48]

“[The respondent] did not believe that he need [sic] to engage in [the] Sex Offender Treatment Program (SOTP) as he had refrained from the offending behaviour for some years before he got arrested. However, he added that he was not a professional and would be guided by recommendations.”

48. AB 115.

44. Dr Dayalan made a formal diagnosis of (inter alia) paedophilia, ^[49] before going on to say: ^[50]

“In regards to treatment recommendations, [the respondent] will need to engage in sex offender treatment program whilst in custody. A detailed psychosexual assessment and risk assessment will need to be undertaken prior to release into the community as these assessments incorporate dynamic factors that are susceptible to changes over time. Depending upon his presentation and risks posed around the time of release in the community, [the respondent] may be a candidate for pharmacological treatment for sexual paraphilia such as anti-libidinal medication. He may also require ongoing consultations with professionals with expertise in management of sexual paraphilia.

Whilst in a correctional centre, [the respondent] would benefit from consultations with a psychologist for assistance with his anxious ruminations and distress tolerance. Any worsening of his mental state may require treatment with antidepressant medication.

[The respondent] had some difficulty articulating the impact of his behaviour upon the victims but acknowledged that it was ‘not right’. He further made a comment that he had ‘to pay back’ for these offences rather than opting to end his life. It was evident that he regretted his offending behaviour and acknowledged the serious nature of his offences.

He had limited understanding into his sexual paraphilia and the need for treatment. However, he indicated his willingness to adhere to recommendations from an expert. Psychoeducation will need to be provided to improve his engagement in sex offender treatment program.”

49. AB 117.

50. AB 118.

45. Also tendered was a letter from the respondent to the sentencing judge in which the respondent said the following: ^[51]

    51. AB 120.

“I have been in gaol and I have been thinking about how sorry I am for what I have done. Reading the victim's stories made me second guess who I was as a person. I feel so sorry for what I have done. I know that the victims are heart broken and I am extremely disappointed in myself for what I did to them. I have many moments day to day where I have a lot of big emotions come over me and I regret what I had done. It is painful to think about what I have done to my victims. I struggle to recollect what I have done because it is too painful, but I know that the pain my victims are feeling is far greater.

I know my offending did not just affect my victims, but it also effected [sic] their families and friends. They will also be heartbroken about what I have done. They would be disappointed that I took advantage of their loved ones. They have to live the rest of their lives in trauma.

I took advantage at the time of the offences because I thought that no one would hear about what I had done because my victim’s [sic] would not say anything. What I did was gutless. I expect to be punished very hard for what I have done. I understand why the victims and their families want me to be punished for what I've done. I have to pay the price for hurting the victims.

I initially contemplated suicide when I was first charged. I couldn't live with what I had done wrong. But I did not commit suicide because I knew I had to face the consequences for what I have done wrong to my victims. They came forward many years after the offences because of how traumatic it has been for them. I think about that every day and I know I must be punished for what I have done.

I know Dr Dayalan has recommended treatment to me and I understand that I have a problem that needs to be fixed. The professionals have diagnosed me with problems and I want to comply with the treatment they have recommended. I would comply with the sex offender treatment program whilst in gaol. I am extremely worried that other people in the gaol would see me participating in the program which would expose me to being hurt, but I would do it anyway.

Dr Dayalan said that I might need anti-libidinal medication when I am released into the community. I understand that medication may reduce my risk of re-offending because it effects [sic] my hormones. When I am to be released, I would agree to being assessed for this medication if it is suitable.

I will also agree to talk to a psychologist whilst in gaol and outside. I know a psychologist would assess me and try to help. I know professionals will help and I will participate. It will be good to talk to someone about what is going on inside my mind for so many years.

I know I will be in gaol for many years, I will keep working, get healthy by exercising, do a training course in hairdressing so it will give me a chance to work when I am released. I want any chance to leave gaol with new skills and get work in gaol to continue being active.

I want to say sorry to my children as well. I am so sorry I can't be with you to support you. My eldest [ML] has just had his first son. My youngest [DL] is struggling with his mental health. Thank you for reading my letter your Honour.”

46. I interpolate that the practice of tendering material of this kind in sentence proceedings in the absence of the offender giving evidence has been the subject of repeated adverse comment by this Court. ^[52] The respondent’s statement was deserving of little or no weight.

    52. See for example Lai v R [2021] NSWCCA 217 at [79] – [80] per Bellew J (Bathurst CJ and Adamson J agreeing) citing R v Elfar [2003] NSWCCA 358 at [25]; Pfitzner v R [2010] NSWCCA 314 at [33] per McClellan CJ at CL (Hislop and Price JJ agreeing) (Pfitzner); and Weber v R [2020] NSWCCA 103 at [63] per Bellew J (Simpson AJA and Rothman J agreeing).

47. A testimonial was also tendered from ML ^[53] who expressed his support for the respondent.

    53. AB 121.

The findings of the sentencing judge

48. In respect of the respondent’s subjective case, the sentencing judge said the following: ^[54]

    54. AB 33 – 34.

“The Crown conceded that [the respondent] had pleaded guilty at the earliest opportunity and the plea attracts a discount of 25%.

[Counsel for the respondent] submitted that the entry of the plea [sic] was a practical expression of [the respondent's] remorse and an acknowledgement of his wrong doing.

[The respondent] is a person with no prior convictions but, as conceded by [counsel], this has limited significance when sentencing for these kind [sic] of offences. Further, he could not be considered to be of good behaviour after he committed the first offence.

[The respondent] expressed some remorse to Dr Dayalan and in his letter to the Court. Limited weight can be attached to the statement, but the Court accepts he has some remorse and realises that he has in his own words ‘a problem that needs to be fixed’.

[The respondent] continues to have the support of one of his sons and his mother which is a protective factor.

He has started to work in custody and has attempted to do some courses but they were cancelled due to Covid.

He has not had any mental health treatment in custody and has not had any institutional charges.

It is of concern that he indicated to Dr Dayalan that he did not believe he needed to engage in sex offender programs because he had ceased offending, but, as I have already noted, he is willing to be guided by professional advice.

I accept he is remorseful and he has accepted responsibility for his actions by pleading guilty and by accepting the Crown facts. He has some insight into the harm he has done to the victims.

Other than count 23 there is no evidence that he has offended in recent years, and I find he has reasonable prospects of rehabilitation which will be improved if he can access and engage meaningfully with treatment and professional guidance.”

49. Her Honour made no finding as to the respondent’s likelihood of re-offending, in circumstances where that is a separate and distinct consideration from an assessment of an offender’s prospects of rehabilitation and one which must be addressed by a sentencing judge. ^[55]

    55. TL v R [2020] NSWCCA 265 at [369] per Bellew J (Hoeben CJ at CL and Adamson J agreeing) citing Zuffo v R [2017] NSWCCA 187 at [47] per Price J (Hoeben CJ at CL and Adamson J agreeing).

50. In finding special circumstances, her Honour said: ^[56]

“The subjective features are contained in the report of Dr Dayalan and in [the respondent's] letter to the Court which have been summarised above. This is [the respondent's] first time in custody and his record in custody is favourable and entitles him some leniency. He has been in custody un-sentenced for over two years, this is regrettable.

The report of Dr Dayalan suggests it has been difficult for him to access treatment in custody, and given the persistence of the Covid pandemic this may continue to be the case for some time to come, I accept that submission.

I make a finding of special circumstances based on those factors and set a non-parole period of 65%.”

56. AB 34.

51. In considering aggravating factors, her Honour said: ^[57]

“The Crown submitted that all the offences where the victim was staying in [the respondent’s] home were aggravated by a breach of trust or authority, pursuant to section 21A(2)(K) [sic].

The offences against CWH which occurred when [the respondent] was driving him home are also said to involve an abuse of trust.

The offences against CWH which occurred in his home were aggravated by section 21A(E)(B) [sic].

The offences committed against KL and JL were said to be aggravated by occurring in their homes, and it was noted KL was in the room when the offending occurred against JL.

The offences against RH, JC, BH and ID were aggravated by reason of occurring in the presence of either ML or DL.

The defence submitted that whilst the offending against CWH, RH, JC and IB represents a breach of trust generally, the offending is not aggravated by this fact but rather forms part of the factual matrix. It was noted that in the offending taking place where there is a child in the room may enliven s 21A(2)(E)(A) [sic] and the offending in the home of the victim may aggravate conduct pursuant to [sic] 21(2)(E)(B) [sic] consideration.

I have considered the aggravating factors referred to by the Crown and I have taken care not to double count any would have been considered and assessed when assessing the objective seriousness of each offence. The sentence reflects the aggravating factors and the objective seriousness.

57. AB 32 – 33.

52. It is not entirely clear from this passage of her Honour’s reasons what submissions were accepted or rejected, and what aggravating factors were or were not taken into account.

53. Finally, in addressing questions of accumulation, concurrence and totality, her Honour said: ^[58]

“In this case the offending occurred over an extended period of time against multiple victims. All the offences were relatively brief but they differed in nature and there must be some accumulation to reflect each victim and the nature of the offending. Had I not been imposing an aggregate sentence, the offences which occurred on or about the same day against the same victim would be largely concurrent.”

The totality principle requires me, having passed individual sentences on each count, to stand back and consider whether the overall sentence to be imposed is just and appropriate, and reflects the total criminality involved. The principle of totality is designed to avoid the Court imposing a crushing sentence.

THE SUBMISSIONS OF THE PARTIES

58. AB 35 – 36.

Submissions of the Crown

54. Although the Crown before this Court made reference to what were said to be errors in the reasons of the sentencing judge, it was submitted that one of the difficulties in asserting patent error stemmed from the fact that her Honour's reasons were inadequate. Whilst that asserted inadequacy was said to be a matter which “fed into” the imposition of a manifestly inadequate sentence, the Crown put its case on the basis of latent error, and advanced five principal submissions in support of that position.

55. First, the Crown submitted that generally speaking, the respondent had demonstrated a grave breach of trust and/or breach of authority which formed an integral part of the overall factual context in which he was to be sentenced.

56. Secondly, the Crown pointed to the fact that aspects of the respondent’s offending involved bare skin touching of the victims’ genitalia, including on some occasions, masturbation, and on other occasions, fellatio.

57. Thirdly, the Crown emphasised the vulnerability of the victims stemming from a number of circumstances, including the fact that on some occasions the offending had occurred in their beds when they were asleep.

58. Fourthly, the Crown emphasised the significant age difference between the victims and the respondent. The Crown pointed, in particular, to the fact that the respondent was between 36 and 45 years of age during the period of the offending, that some of the victims were between 7 and 8 years of age, and that others were in their early teens. The Crown also emphasised that the youngest victim had only just turned 7 years of age. It was submitted that these various age differences highlighted a significant “power imbalance” between the respondent and his victims, a fact which, in the Crown’s submission, supported a conclusion that the actions of the respondent were predatory.

59. Fifthly, the Crown submitted that the respondent’s subjective case was unremarkable. It was submitted, in particular, that the respondent had not demonstrated any real remorse and that in light of his statements to Dr Dayalan, no positive conclusion could be reached about his prospects of rehabilitation.

60. In terms of the Court’s residual discretion not to intervene in the event that the sentence was found to be manifestly inadequate, the Crown relied on a number of factors in support of the submission that such discretion should not be exercised in the present case.

61. First, it was submitted that there had been no relevant delay in bringing the appeal. In this regard, the Crown pointed to the fact that:

1. the respondent was sentenced on 7 December 2021;

2. the notice of appeal was filed on 20 December 2021; and

3. the notice of appeal was served on the respondent on 22 December 2021.

62. Secondly, it was submitted that, the Crown had made unequivocal submissions on sentence that there should be substantial accumulation to reflect the multiplicity of offending, committed on a number of different victims, over a significant period of time. It was submitted that in these circumstances, it could not be said that the Crown had contributed in any way to the imposition of a manifestly inadequate sentence.

63. Thirdly, the Crown submitted that the inadequacy of the sentence was so great that it risked undermining public confidence in the criminal justice system. It was submitted that the non-parole period imposed was entirely disproportionate to the seriousness of the offending. It was further submitted that the reasons of the sentencing judge failed to properly explain why a finding of special circumstances was made.

64. Finally, it was submitted that there was nothing about the present case which rendered it an inappropriate vehicle for laying down principles for the guidance of sentencing judges.

Submissions of the respondent

65. Counsel for the respondent submitted that it was clear from the reasons of the sentencing judge ^[59] that her Honour was cognisant of the fact that any sentence was required to properly reflect the totality of the respondent’s criminality. In this context, counsel emphasised that a sentencing judge at first instance is to be allowed as much flexibility in sentencing as is consonant with consistency of approach. ^[60]

    59. AB 35.

    60. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27].

66. Counsel further submitted that although the offending occurred over a broad period of 8 years, the majority of it was confined to the period between 2010 and 2012, and that it should be viewed in that light. It was submitted that given the number of offences, it had been important for the sentencing judge to avoid imposing a crushing sentence. It was further submitted that several of the offences, had they been charged on their own, would in all likelihood have resulted in the imposition of a form of custodial sentence to be served in the community.

67. Counsel also pointed to the fact that a substantial degree of concurrency was warranted, in circumstances where some instances of offending were committed against the one victim within the same (or similar) time frame. Counsel also stressed the need to avoid double counting in terms of any aggravating factors which were said to be applicable.

68. In terms of the respondent’s subjective case, counsel submitted that the respondent:

1. had pleaded guilty, thus entitling him to a discount of 25%;

2. had no relevant prior convictions;

3. was supported by his son and his mother;

4. had used his time in custody productively by working and attempting to undertake courses;

5. was willing to undergo treatment if that was thought appropriate;

6. was remorseful;

7. had accepted responsibility for his offending;

8. had reasonable prospects of rehabilitation; and

9. had not offended in recent years.

69. It was submitted that when all of these circumstances were taken into account, this Court would conclude that the Crown had not established that the sentence was manifestly inadequate. In support of that proposition, counsel referred to this Court’s decision in R v Feuerstein. ^[61]

    61. [2015] NSWCCA 82 (Feuerstein).

70. In terms of the residual discretion, counsel submitted that the mere fact that there had been no relevant delay in bringing the appeal, and/or the fact that nothing said or done by the Crown had contributed to the sentence, did not, without more, support the conclusion that the Court should not exercise the residual discretion. It was further submitted that when regard was had to the respondent’s entitlement to a discount of 25% in light of his plea of guilty, the sentence was not one which would give rise to a risk of public confidence in the criminal justice system being undermined.

CONSIDERATION

The principles applicable to Crown appeals

71. The appeal by the Crown is brought pursuant to s 5D of the Criminal Appeal Act 1912 (NSW). In order to enliven the Court's discretion pursuant to s 5D, the Crown must demonstrate error in one or more of the respects identified in House v The King. ^[62] Bearing in mind how the Crown put its case, it is not necessary that a specific error be identified. The nature of the sentence itself may disclose that an error has occurred. ^[63]

    62. (1936) 55 CLR 499; [1936] HCA 40.

    63. Whittaker v The King (1928) 41 CLR 230; [1928] HCA 28; Cranssen v The King (1936) 55 CLR 509; [1936] HCA 42.

72. The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of Courts having the duty of sentencing convicted offenders. ^[64] However, the power to intervene also extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing. ^[65] This Court cannot merely substitute its opinion as to the appropriate sentence, for that of the sentencing judge^[66] and may only interfere where error, either latent or patent, is demonstrated. ^[67]

    64. Griffiths v The Queen (1977) 137 CLR 293; [1977] HCA 44.

    65. R v Wall (2002) 71 NSWLR 692; [2002] NSWCCA 42 at [70] per Wood CJ at CL, Meagher JA and Bell J agreeing) citing Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49.

    66. Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at 671 – 672 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.

    67. Wong v The Queen (2001) 207 CLR 584; [2011] HCA 64 at [58] (per Gaudron, Gummow and Hanye JJ) and [109] (per Kirby J).

73. Even if the Court determines that the sentencing judge erred in the exercise of the sentencing discretion by imposing a sentence which was manifestly inadequate, the Crown must then satisfy the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised. ^[68]

    68. CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.

The reasons of the sentencing judge

74. The Crown before this Court ultimately eschewed any assertion of patent error on the part of the sentencing judge. Notwithstanding that, and bearing in mind that it is part of the role of this Court to provide guidance to sentencing judges, it is necessary for me to make a number of observations of the reasons of the sentencing judge. In doing so, I make it clear that I have not taken any of these observations into account in reaching my conclusion as to the Crown appeal. I have formed my judgment solely on the basis upon which the matter was argued before this Court by the parties, as set out above.

75. First, and as I have already observed, the factual basis upon which the respondent was to be sentenced was set out in comprehensive agreed facts which were tendered to the sentencing judge. Her Honour adopted the practice, for the purposes of determining the circumstances of each instance of offending, of summarising the agreed facts. That summary formed, in each case, part of the basis of her Honour’s conclusions as to the objective seriousness of the offending. Whilst summarising agreed facts may be appropriate and sufficient in many cases, some matters will always remain paramount. To begin with, it is obviously essential that any summary be factually correct. There were instances in the present case where this was not so. Further, it is essential that any summary of agreed facts include a reference to all material facts which bear upon the assessment of the objective seriousness of the offending. There were several instances in the present case where material facts were omitted from her Honour’s reasons. As a consequence, in some cases the true nature of the offending was not set out.

76. Secondly, in summarising the facts of the offending and setting out conclusions as to the objective seriousness in each case, the sentencing judge adopted a formulaic approach which involved:

1. summarising the facts in the manner to which I have referred;

2. reciting, in short form, the submissions made on behalf of each party; and

3. expressing a view as to objective seriousness by reference to a point within a notional range at which the offending was said to fall.

77. The final step in that approach necessarily involved her Honour accepting the submissions of one party and rejecting those of the other, be it wholly or partly. The difficulty is that when doing so, her Honour gave no reasons explaining why she reached the various conclusions as to objective seriousness that she did and, more specifically, why she apparently accepted the submissions of one party over those of the other. Whilst I accept that the assessment of the objective seriousness of an offence is a matter for a sentencing judge, her Honour’s reasons were inadequate in terms of that assessment. In Taylor v R,^[69] Wilson J made the following observations which are apt in the circumstances of the present case:

“It is important to bear in mind the multiple purposes of a Court in giving a sentence judgment, purposes which all point to a requirement for transparency, but not for mere recitation of law and principle. The offender and the Crown must both be able to understand how the sentencing judge arrived at the sentence ultimately imposed, and to ascertain whether there has been some misapplication of fact or principle, or some other error, such that there may be an available appeal on a matter of substance. Any appellate Court considering whether such error has occurred must be able to determine a claim of error by considering the sentencing judgment.”

69. [2018] NSWCCA 255 at [52], White JA and Walton J agreeing.

78. In my view, her Honour’s reasons fell short of what was required. Any path of reasoning which her Honour may have adopted in reaching her various conclusions about the objective seriousness of each episode of offending was not exposed. The requirements of sentencing are not satisfied by a bare recitation of facts, and a reference to objective characteristics of offending. ^[70] However, that is effectively all that her Honour did. In my view, no proper assessment of the circumstances of the offending, or its objective seriousness, was undertaken, particularly in circumstances where some facts were misstated, and others entirely omitted.

    70. R v Cage [2006] NSWCCA 304 at [17].

79. Thirdly, the inadequacy of the reasons is compounded by the fact that her Honour expressed her conclusions as to objective seriousness in terms of where each instance of offending fell on a notional range. Whilst an assessment of objective seriousness is obviously a necessary element of the sentencing task, what is required is that a sentencing judge fully identify the facts, matters and circumstances which he or she concludes have a bearing upon such assessment. ^[71] Articulating such assessment in the terms in which her Honour did was not necessary. ^[72] It added nothing substantive to any analysis.

    71. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [20].

    72. See Yeung v R [2018] NSWCCA 52 at [24] and the authorities cited therein.

80. Fourthly, in some instances there was a displacement between her Honour’s conclusion as to the objective seriousness of the offending, and the indicative sentence. For example, the offending in sequence 10 carried a maximum penalty of 14 years imprisonment. Having found that the offending was “just below mid-range”, her Honour adopted a starting point (in terms of the indicative sentence) of 3 years’ imprisonment, which she reduced by 25% on account of the respondent’s plea of guilty. By way of further example, the offending in sequence 11 (to which a Form 1 was attached) carried a maximum penalty of 20 years imprisonment. Having found that the offending was “mid-range”, her Honour adopted a starting point (in terms of the indicative sentence) of 6 years’ imprisonment which she reduced by 25% on account of the respondent's plea of guilty. The indicative sentences are not, of course, themselves amenable to appeal, but they may be a guide as to whether the aggregate sentence reflects error. ^[73]

    73. JM v R [2014] NSWCCA 297 at [40] per R A Hulme J (Hoeben CJ at CL and Adamson J agreeing).

119. AB 84 at [52] – [55].

144. Given that the request to drive the victim home came from the respondent's son, it could not be said that this offending was planned. However, it is evident that the respondent saw the request as an opportunity to further offend, and seized on it by refusing to allow his son to accompany him. Parking the vehicle in a dark spot in the carpark can only be construed as a conscious attempt by the respondent to avoid detection. It is also significant that some pain was caused to the victim by the respondent's actions, which involved fellatio.

Sequence 14 – Indecent assault of a child under the age of 16 years

Sequence 26 – Aggravated enter dwelling with intent to commit a serious indictable offence of indecent assault of a child under the age of 16 years

145. The agreed facts were as follows: ^[120]

     120. AB 85 – 86 at [56] – [63].

“56. One afternoon in 2011, when the victim was in year seven and aged 12 or 13, he was at home alone after school as he was grounded. The victim was regularly alone in the afternoons after school, as his mother worked. She would leave a side door unlocked for him.

57. The victim was playing video games. At one stage DL came over to ask whether the victim wanted to come and play video games at [his] residence. The victim declined and DL left. The victim continued playing video games.

58. At one stage, the victim looked over and saw [the respondent] standing in the lounge. The victim said: ‘What the fuck? What are you doing in my house? You didn't knock!’ [The respondent] replied, ‘That's no way to greet a friend’. The victim said: ‘Can you please leave my house now? I'm home alone so no one is allowed in and I'm grounded, so I'm not allowed to have anyone over.’ [The respondent] did not leave and asked the victim why he was grounded.

59. The victim got off the lounge, walked towards [the respondent] and pushed him in the chest, saying ‘Get out of the house’. [The respondent] did not move.

60. The victim returned to sitting on the lounge and [the respondent] sat down beside him. [The respondent] put his hands into the victim's pants, beneath the underwear and touched him on the penis and testicles. The victim tried to pushed his hand away but [the respondent] overpowered him and used one of his hands to hold both the victim's hands down beside him. [The respondent] put his other hand back down inside the victim's pants. The victim said: ‘Can you please not do this? This is my house. Can you please fuck off?’

61. [The respondent] masturbated the victim, but he then became frustrated, saying ‘Why is it not working?’. The victim said: ‘This is not going to work. Nothing you can do will work anymore’. [The respondent] said: ‘Why not?’ The victim said ‘None of your fucking business why’.

62. [The respondent] then left.

63. Two days later, the victim again returned to his residence after school. When he went to the side door to enter, he saw that the doors were open and [the respondent] was standing in the door way. The victim said: ‘What are you doing in my fucking house?’. [The respondent] said: ‘Waiting for you’. The victim replied: ‘You can wait outside if you needed to’. The victim pushed past [the respondent], walked into the kitchen and picked up a knife and the home phone. He said: ‘I'll call the police if you don't leave’. [The respondent] left and the victim did not call police.”

146. In terms of the offending in sequence 26, it must have been evident from the victim's reaction, upon finding the respondent in the loungeroom of his home, that he wanted the respondent to leave. Rather than act on what he had been told by the victim, the respondent replied in terms which, given the nature and extent of the offending which had occurred up to that point, were both vile and despicable. The victim’s subsequent actions and statements must have made it abundantly clear to the respondent that the victim did not wish him to be in his house. Notwithstanding that, the respondent then engaged in the offending in sequence 14 which involved skin to skin contact with the victim’s penis and testicles. At one point, the victim tried to push the respondent's hand away, from which it must have been obvious that he was not consenting to what was occurring. The respondent replied by using his size and strength to overpower the victim and continue his offending. Yet again, the victim asked the respondent to stop. Yet again pointed out the fact he was in his own house. Yet again he again told the respondent, in no uncertain terms, to leave. Yet again, the respondent ignored these requests and continued to masturbate the victim. The respondent's offending in both cases was obviously serious, and his treatment of the victim was disdainful.

Sequence 16 – Break and enter and commit the serious indictable offence of indecent assault of a child under the age of 16 years

147. The agreed facts were as follows: ^[121]

“64. The following week, the victim was again home alone after school. The victim closed the side screen door but left the glass door open as it was a hot day. The victim was sitting on a swag in the lounge room with his back up against the lounge and playing a video with headphones on. The victim fell asleep in the middle of the game.

65. The victim awoke to find [the respondent] sitting beside him on the floor. [The respondent] had one hand down inside the victim's pants, and the other hand inside his own pants. The victim's hands were beside him with [the respondent] sitting on them. The victim tried to move but was unable. The victim's penis had been erect when he woke, but the erection stopped when he saw [the respondent]. [The respondent] became upset and angry at the victim. He said: ‘There is something wrong with you because you can't get yourself up’.

66. The offender left and the victim locked the door.”

121. AB 86 at [64] – [66].

148. This offending involved skin on skin contact perpetrated by the respondent upon the victim. The comment made by the respondent to the victim was demeaning.

Sequence 29 – Indecent assault of a child under the age of 16 years

149. The victim of this offending, RH, was a friend of ML and attended the same school. RH was also a friend of the victims JC and IB.

150. The agreed facts were as follows: ^[122]

“72. One day in about 2011, the victim went for a sleep over at [the respondent’s] house. The victim was about 12 years of age. The victim slept in ML’s room on the bottom bunk, and ML was on the top bunk. The victim was unable to go to sleep and lay awake.

73. During the night [the respondent] snuck into the room. [The respondent] checked if ML was asleep and pretended to tuck him in. The victim could see [the respondent] as light was coming into the bedroom through the window. The victim was wearing shorts and was covered by a blanket.

74. [The respondent] his hand underneath a blanket onto the victim's left ankle. The respondent moved his hand up the victim's leg to his knee and thigh. The victim pretended to wake up. He breathed in, moved his leg away from [the respondent's] hand, moved his body towards the wall and said ‘What are you doing?’ [The respondent] replied: ‘Oh sorry, sorry’. [The respondent] left the room.”

122. AB 87 at [72] – [74].

151. The fact that the respondent took the step of checking to ensure that ML was asleep can only be construed as an attempt to ensure, as far as he was able to do so, that ML would not become aware of the offending. Whilst the contact was limited to contact with the victim's knee and thigh area, the only available inference from the facts is that the offending ceased when the victim pretended to wake up.

Sequence 21 – Indecent assault of a child under the age of 16 years

152. The victim of this offending, JC, was in the same school friendship group as the respondent's son, ML, and the victims RH and IB.

153. The agreed facts were as follows: ^[123]

“78. During 2011, when the victim was in year 7 and aged 12 or 13, he started staying overnight at the respondent's residence.

79. One night, the victim stayed overnight in ML’s room. The victim was asleep on the bottom bunk and ML was asleep on the top bunk.

80. While the victim was asleep, [the respondent] entered the room. He pulled the victim's tracksuit pants loose and put an oily colourless and odourless substance or lubricant on the victim's penis.

81. The victim awoke at about 1am or 2am and saw [the respondent] standing over the top of him. He was able see [the respondent] as there was light from the hallway shining into the room. The victim said: ‘What's going on?’ and [the respondent] replied: ‘I’m just tucking you in. Don't worry about it’. [The respondent] left the room.

82. The victim noticed that although his tracksuit pants were on, the elastic around the waist had been loosened. He could also feel the substance or lubricant on his penis. He pulled his pants down and looked at his penis. He could see there was a strand of hair on his penis which was not his own. The victim's penis was not erect. The victim returned to sleep.”

123. AB 87 at [78] – [82].

154. As I observed when dealing with this offending in the context of her Honour’s reasons, its objective seriousness should be assessed on the basis that there was skin on skin contact.

Sequence 19 – Aggravated sexual assault of a child under the age of 16 years

155. The victim of this offending was IB who was a pupil at the same high school, and a member of the same friendship group, as ML. As a consequence of that friendship, the victim spent time with the respondent's family which included going on two family holidays.

156. The agreed facts were as follows: ^[124]

“86. In early 2012, when the victim was in year 8 and 12 years old, he noticed that [the respondent] had begun to touch him strangely. When the victim, DL, ML and [the respondent] would sit in the lounge room or in ML’s room [the respondent] would sit beside the victim and touch him on the knee or on the inside of his thigh whilst talking to him. On these occasions the victim would freeze.

87. During 2012, the victim stayed overnight at [the respondent's] residence one school night. The victim was asked to sleep in the spare room, which was unusual as normally he slept in ML’s room. The spare room was next to the computer room and had a window which looked out onto the carport. The victim had dinner and went to bed wearing shorts and a t-shirt.

88. At about 2am or 3am the victim awoke and felt someone touching him. There was light coming in the bedroom window and the victim could see [the respondent] leaning over his bed. [The respondent] had pulled down the victim's pants and was performing fellatio on him. [The respondent] had commenced performing fellatio while the victim was still asleep. The victim's penis was not erect. The victim could not move and was frozen. [The respondent] said, ‘Oh sorry’. The victim does not know how long [the respondent] performed fellatio, but it felt like minutes. The victim was not able to specifically recall [the respondent] leaving the room but when he awoke the next morning his shorts were pulled back up.”

124. AB 88 – 89 at [86] – [88].

157. There was some degree of planning involved in this offence, as evidenced by the agreed fact that the victim was asked to take the unusual step of sleeping in the spare room. The obvious conclusion to be drawn is that this circumstance was created by the respondent in an effort to facilitate his offending in a way which would ensure that it was not detected. The overwhelming inference is that had the victim not questioned the respondent about his conduct, the respondent would have continued.

Sequence 21 – Indecent assault of a child under the age of 16 years

Sequence 22 – Indecent assault of a child under the age of 16 years (Form 1)

158. The victim of this offending, BH, was in the same year at school as ML.

159. The agreed facts were as follows: ^[125]

“91. In 2013 or 2014, when the victim was in year 9 or year 10 and aged 14 or 15 years old, ML invited him to stay over on a Friday night. They both went to a Scouts meeting after school and then [the respondent] picked them up and took them back to his residence. The victim and ML watched a movie in the lounge room closest to ML’s bedroom. The victim sat on the middle seat of the lounge and ML sat two seats to his left. [The respondent] came into the room and sat to the right of the victim.

92. After sitting for about five to ten minutes, [the respondent] placed his left hand on the victim's right inner thigh. [The respondent] moved his hand and caressed the victim's thigh, rubbing it. [The respondent] then moved his hand closer to the victim's penis but was unable to touch it because the victim was sitting with his left leg up. [The respondent] twice touched the victim's testicles. The victim felt degraded. At one point [the respondent] got up and left the room. When he returned, he sat back beside the victim and put his hand on the victim's inner thigh again. After the movie had finished, the victim left and walked past [the respondent] in the loungeroom.

93. At 11pm the victim went to sleep on a couch in the spare bedroom. The victim wore shorts with an elastic band and a t-shirt. The victim woke up at 6am or 7am. The victim was facing the wall and felt someone directly behind him. [The respondent] had his hand in between the victim's legs and moving towards his genitals. The victim moved around to pretend he was waking. As [the respondent] left the room, the victim looked over and saw him.”

125. AB 89 at [91] – [93].

160. This offending involved consistent skin on skin contact by the respondent, to the point where, having touched the victim, the respondent left the room only to return and resume his offending.

Sequence 18 – Indecent assault of a child under the age of 16 years

161. The victim of this offending was ID, a school friend of ML.

162. The agreed facts were as follows: ^[126]

“95. In 2016, when the victim was in year eight and aged 13 or 14, he went to [the respondent's] residence after school. The victim and DL watched a movie in DL’s room. The victim sat on a stool and DL sat on a chair.

96. During the movie, [the respondent] came into the room and sat on the stool with the victim. There was not enough room on the stool for both of them. The victim felt uncomfortable and leant as far as way [sic] from [the respondent] as he could. [The respondent] said words to the effect: ‘It's fine, its fine’.

97. [The respondent] used his left hand and started rubbing the victim's right leg. [The respondent] rubbed the victim's thigh, starting towards the knee before moving his hand towards his hip. [The respondent's] hand then moved towards the victim's crotch.

98. [The respondent's] hand brushed crossed the victim's penis, on the outside of his clothing. [The respondent's] hand rested for a few seconds on the victim's crotch. The victim moved his body and try to get off stool away from the respondent. The victim moved towards the edge of the stool.

99. When the movie ended, [the respondent] left the room. The victim did not visit [the respondent's] home again.

126. AB 89 – 90 at [95] – [99].

163. The seriousness of this offending is reflected, in part, in the fact that the respondent must have realised from the outset that the victim felt uncomfortable. Rather than respect the victim, the respondent sought to reassure him that it was “fine”. That statement was entirely manipulative, and was obviously made for the purposes of allowing the respondent to continue his offending. The respondent’s self-interest prevailed yet again.

Sequence 23 – Possession of child abuse material

164. The agreed facts were as follows:^[127]

105. Police located a 32G, San Disk Micro SD card in the main bedroom. DSC LOCKE asked the respondent: ‘Mr Lau what can you tell me about this?’ [The respondent] replied: ‘This should be for the mobile phone USB, I mean SD card’. The SD card was forensically examined and found to contain two videos depicting children under the age of sixteen years engaged in sexual activity. The videos are category one in the Interpol Baseline Category. The SD card also contained several personal documents belonging to [the respondent].

127. AB 91 – 90 at [105].

165. The material in the respondent's possession was limited to the two videos to which I have referred. However, objective seriousness of offending of this nature is determined not only by the amount of material, but also by (inter alia) what is depicted. It was agreed that what was depicted in the two videos were “children under the age of sixteen years engaged in sexual activity”. Given that description, the offending was, by its nature, serious.

The respondent's subjective case

166. The respondent read his affidavit of 31 May 2022, and that of his solicitor, Mr Portokalli of the same date, on the question of re-sentence. Those affidavits assert that the respondent:

1. has a deteriorating reflux condition, in respect of which he has found it difficult to obtain medication in custody;

2. remains on protection in custody on account of the nature of his offending;

3. has not come under notice for any behavioural issues;

4. has engaged in work, and has expressed a willingness to undergo courses of study; and

5. has maintained contact with members of his family to the extent that he has been able to do so.

167. In his affidavit the respondent asserted that there have been a number of long lockdowns since he was taken into custody, and that there had been times when he had been “locked in the wing for 4 or 5 days at a time” due to “staff shortages”.

168. In circumstances where the affidavits read by the respondent were filed the day before the hearing, the Crown sought and was granted leave to file and rely upon evidence in response. Pursuant to that leave, the Crown filed an affidavit of Adam Wilczek of 14 June 2022. The effect of Mr Wilczek’s evidence is that he made a number of enquiries with Corrective Services NSW, the aim of which was obviously to verify (or otherwise) what the respondent had asserted in his affidavit. Two matters have emerged.

169. First, Mr Wilczek has deposed to the fact that having been provided with material from Justice Health, he has not identified any documents on which the Crown seeks to rely. There is therefore no challenge to the respondent’s assertions regarding his reflux condition. The fact that the respondent suffers from that condition and has had some difficulties obtaining medication is confirmed by a further affidavit of Mr Portokalli of 14 June which was filed in response to that of Mr Wilczek. I have taken this aspect of the respondent’s health into account. Although it is, in one sense, relatively minor, it has some bearing on the conditions of the respondent’s custody.

170. Secondly, in an email of 31 May 2022, Mr Wilczek posed a number of questions to the Manger of Security at the South Coast Correctional Centre regarding the respondent’s conditions of custody. Bearing in mind what the respondent had asserted in his affidavit, Mr Wilczek was informed that:

1. there had been a total of 60 lockdowns since the respondent was transferred to the South Coast Correctional Centre;

2. that did not mean that the entire Centre was locked down;

3. some had been for a couple of hours up to a full day;

4. no area had been locked down for 4 to 5 days; and

5. it was possible that some lock downs had been brought about by staff shortages.

171. The Court has not received any further submissions from the parties as to what conclusions are sought to be drawn from the evidence as to the respondent’s conditions of custody. In circumstances where none of the deponents were cross-examined, it is difficult to resolve any issues which have arisen. I am certainly not prepared to conclude that the respondent has deliberately told untruths in his affidavit in relation to his custodial conditions. It is widely accepted that the Covid-19 pandemic has had an ongoing, and generally negative, effect on the custodial conditions of inmates in correctional centres in this State and that is a relevant matter to take into account on sentence.

171. The respondent pleaded guilty at the first available opportunity and is entitled to a discount of 25% to reflect the utilitarian value of that plea.

172. There is no dispute that prior to the respondent’s arrest the only entries in his criminal history were in July 1995, when he was convicted of being found in a gaming house and fined, and in June 2006, when he was convicted of driving with a high range prescribed concentration of alcohol and fined and disqualified from driving. The absence of any significant record of previous convictions is a mitigating factor,^[128] although its significance is less, given the nature of the offending.

     128. Section 21A(3)(e) of the Sentencing Act.

173. I have already set out the relevant parts of Dr Dayalan’s report. ^[129] The respondent’s prospects of rehabilitation depend, at least to some extent, on his level of insight into his offending. Based on the opinion of Dr Dayalan, that insight is limited, to the point where the respondent appears reluctant to even accept that he needs treatment. Whilst the respondent’s willingness to work in custody, his preparedness to undergo courses of study, and his continuing contact with his family are all positive, I remain of the view that in light of his expressed attitude towards treatment, his prospects of rehabilitation must be viewed as guarded. I am similarly guarded, for the same reasons, about the likelihood of his reoffending.

     129. At [42] – [44] above.

174. There are some expressions of remorse by the respondent in the report of Dr Dayalan, ^[130] as well as in the respondent’s statement. ^[131] All of them are untested. Whilst there is no requirement that an offender give evidence in proceedings before remorse can be taken into account,^[132] it remains the case that in such circumstances, the Court may give less weight to any expression of remorse contained in material which is not tested by cross-examination. ^[133] I have already made reference to the fact that the respondent’s statement is deserving of little or no weight. I am not prepared to make any finding in the respondent’s favour as to remorse because the evidence does not support it.

     130. AB 114; 118.

     131. AB 120.

     132. Butters v R [2010] NSWCCA 1.

     133. Pfitzner (supra).

175. Bearing in mind the observations I have previously made, ^[134] I am not persuaded that the evidence justifies a finding of special circumstances, particularly given that the respondent appears to be less than fully committed to undertaking the treatment which is necessary for his successful rehabilitation. In any event, the non-parole period which will be imposed will be sufficiently lengthy to allow the respondent to reintegrate into the community.

     134. At [91] – [96].

176. I am not persuaded that the judgment of this Court in Feuerstein is of any real significance as a guide to assessing the sentence for the respondent’s offending. Quite apart from the fact that there are factual differences in the offending and the respective subjective case, a single case is generally of limited utility in determining an appropriate sentence.

177. I have had particular regard to the need for general deterrence, denunciation and protection of the community. It has been observed by this Court, on more than one occasion, that a message must be sent to those who offend against children intentionally and repeatedly that their actions will not be tolerated, and that they will receive significant punishment. ^[135] The sentence imposed by the sentencing judge carries no such message, and provides no deterrent.

     135. See EG v R [2015] NSWCCA 21 at [42] per Hoeben CJ at CL (Harrison and R A Hulme JJ agreeing).

178. Finally, whilst there is a necessity to have regard to, and apply, principles of totality, I am mindful of the observations of Sully J in R v Wheeler:^[136]

“(There) is the need to ensure public confidence in the administration of criminal justice; and, in particular, to ensure that there does not emerge in the community at large a perception that there is not all that much to choose between the person who commits one or two offences, and the person who commits six or seven offences, for the reason that somehow or other they all manage to finish up with effective sentences between or among which there is hardly anything in practical terms to choose.

It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences, - and the present applicant's case, is a good example of the kind, - he must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a studied and deliberate course of criminal behaviour.”

136. [2000] NSWCCA 34 at [36]-[37], Carruthers AJ agreeing.

180. Such observations have been endorsed by this Court in R v Harris ^[137] and R v Van Ryn. ^[138]

     137. [2007] NSWCCA 130 at [46] per McClellan CJ at CL (R A Hulme and Hislop JJ agreeing).

     138. [2016] NSWCCA 1 at [229] per R A Hulme J (Leeming JA and Johnson J agreeing).

ORDERS

181. For the above reasons I set out the following indicative sentences: ^[139]

     139. I have not specified a non-parole period in those cases where no standard non-parole period applies.

Sequence No.	Sentence	Non-parole period
2	5 years, 6 months	4 years, 1 month
5 (taking into account the Form 1 in sequence 4)	1 year, 9 months	1 year, 3 months
6	3 years	2 years, 3 months
7 (taking into account the Form 1 in sequence 8)	4 years, 9 months	3 years, 7 months
9	4 years, 9 months	3 years, 7 months
10	4 years
11 (taking into account the Form 1 in sequence 27)	10 years	7 years, 6 months
12	5 years
30	8 years
26	5 years
14	5 years	3 years, 9 months
16	5 years
29	1 year, 4 months	1 year
21	1 year	9 months
19	6 years	4 years, 6 months
22 (taking into account the Form 1 in sequence 21)	1 year, 7 months	1 year, 2 months
18	1 year, 4 months	1 year
23	1 year, 3 months

182. I propose the following orders:

1. The Crown appeal against sentence is allowed.

2. The aggregate sentence imposed on the respondent in the District Court of New South Wales is quashed.

3. In lieu thereof, the respondent is sentenced to an aggregate term of 15 years imprisonment commencing on 6 November 2019 and expiring on 5 November 2034.

4. Specify a non-parole period of 11 years and 3 months imprisonment, commencing on 6 November 2019 and expiring on 5 February 2031.

183. LONERGAN J: I agree with Bellew J.

Endnotes

Amendments

24 June 2022 - Typographical error in headnote

Decision last updated: 24 June 2022