R v Mr (a pseudonym) - [2019] NSWDC 440

District Court

New South Wales

Medium Neutral Citation: R v MR (a pseudonym) [2019] NSWDC 440
Hearing dates: 14 March 2019
Date of orders: 02 May 2019
Decision date: 02 May 2019
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
At [177]

Catchwords: CRIMINAL LAW – sentencing – aggravated indecent assault – aggravated sexual assault with a Form 1 – cause to take intoxicating substance – produce child abuse material – nine counts – questions of insight and remorse
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995
Cases Cited: Cahyadi v R (2007) 168 A Crim R 41
Minehan v R (2010) 201 A Crim R 243
Pearce v The Queen (1998) 194 CLR 610
R v BJW (2000) 112 A Crim R 1
R v Lulham (2016) 263 A Crim R 287
Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146
Texts Cited: None
Category: Sentence
Parties: Regina (Crown)
MR (a pseudonym) (Offender)
Representation:
Counsel:
Ms K Tennant (Crown)
Mr A Radojev (Offender)
Solicitors:
ODPP (Crown)
P Williams and Company Lawyers (Offender)

File Number(s): 2017/13664
Publication restriction: Non-Publication Order of the name of the Offender who will be known as ‘MR’ and the complainants. The identity of the complainants will be further restricted by referring to them as Lucy and Emma.

The pseudonym which has been given to the Offender are the initials ‘MR’. MR appears before the Court for sentencing today after pleading guilty to the nine charges on the Crown’s sentence summary (Exhibit A). Those nine charges are set out below, not in chronological order but in the order in which they appear on the Indictment.
Count 1 on the Indictment, being that on 14 January 2017, at a camping ground on the Central Coast region of New South Wales, the Offender did assault Emma and at the time of the assault committed an act of indecency on Emma, a child under the age of 16 years, namely 13 years, in breach of s61M(2) of the Crimes Act.
Count 2 is that on or about 14 January 2017, at a camping ground on the Central Coast region of New South Wales, the Offender did cause Emma to take an intoxicating substance, namely diazepam, with intent to commit an indictable offence, namely indecent assault, in breach of s38 of the Crimes Act.
Count 3 is that on 15 January 2017, at a camping ground on the Central Coast region of New South Wales, the Offender did have sexual intercourse with Emma, without the consent of Emma, knowing that she was not consenting, in circumstances of aggravation, namely that at the time of the offending Emma was a person under the age of 16 years, namely 13 years, in breach of s61J(1) of the Crimes Act.
Count 5 against the Offender on the Indictment to which he has pleaded guilty is that between 1 June 2016 and 31 December 2016, at a residence in the Northern Sydney region of New South Wales, the Offender did produce child abuse material in breach of s91H(2) of the Crimes Act.
Count 7 is that on or about 14 January 2017, at a camping ground in the Central Coast region of the State of New South Wales, the Offender did cause Lucy to take an intoxicating substance, namely diazepam, with intent to commit an indictable offence, namely indecent assault, in breach of s38 of the Crimes Act.
Count 8 on the Indictment is that on 22 September 2016, at a residence in the Northern Sydney region of New South Wales, the Offender did assault Lucy and at the time of such assault committed an act of indecency on her, a child then under the age of 16, namely 12 years, in breach of s61M(2) of the Crimes Act.
Count 9 on the Indictment is that on 22 September 2016, at a residence in the Northern Sydney region of New South Wales, he did produce child abuse material in breach of s91H(2) of the Crimes Act.
Count 10 on the Indictment is that on 8 July 2016, at a residence in the Northern Sydney region of New South Wales, the Offender did produce child abuse material in breach of s91H(2) of the Crimes Act.
Count 12 on the Indictment is that on 17 December 2011, at a residence in the Northern Sydney region of New South Wales, the Offender did produce child abuse material in breach of s91H(2) of the Crimes Act.
Count 4, being a charge of aggravated indecent assault, in breach of s61M(2) of the Crimes Act, was placed on a Form 1 and attaches to Count 3 referred to above; that is the incident that occurred on 15 January 2017.
Counts 6 and 11 were backup counts which were withdrawn on the last occasion and dismissed by the Court at that time, after the Offender had pleaded guilty to the primary charges for which he is to be sentenced.
In sentencing the Court has regard to the guideposts of maximum penalties and the standard non-parole periods, if one exists. The maximum penalty is Parliament’s assessment of the seriousness of the offending. The standard non-parole period is to be applied in instances of mid‑range offending after a verdict of guilty made by a jury following trial. The offences for which the Offender is to be sentenced and the applicable guideposts as just described are as follows:

for the offence of aggravated indecent assault of a child under the age of 16, being Counts 1 and 8 on the Indictment, in breach of s61M(2) of the Crimes Act, the maximum penalty is 10 years imprisonment with a standard non-parole period of 8 years;

for the offence of cause to take an intoxicating substance with intent to commit an indictable offence, being Counts 2 and 7 on the Indictment, in breach of s38 of the Crimes Act, the maximum penalty is 25 years imprisonment with no standard non-parole period;

for the offence of sexual intercourse without consent in circumstances of aggravation, being Count 3 on the Indictment, in breach of s61J(1) of the Crimes Act, the maximum penalty is 20 years imprisonment with a standard non-parole period of 10 years; and

for the offence of produce child abuse material, being Counts 5, 9, 10 and 12 on the Indictment, in breach of s91H(2) of the Crimes Act, the maximum penalty is 10 years imprisonment without any applicable standard non-parole period.

As I have mentioned there is also the charge on the Form 1 which has been signed by the parties on a prior occasion and by me. By signing the certificate to the Form 1 I confirm that I have taken that charge into account as it attaches to Count 3 on the Indictment.
The charge on the Form 1 is to be taken into account with a view to increasing the penalty that would otherwise be appropriate. For the principal offence, namely Count 3, to which the Form 1 attaches, the Court does so by giving greater weight to two elements which are always material in sentencing procedure. The first is the need for personal deterrence and the second is the community’s expectation and entitlement to extract retribution for serious offences: Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146 at [65].
The Form 1 matter is a charge of aggravated indecent assault in breach of s61M(2) of the Crimes Act; the maximum penalty for that charge is 10 years with a standard non-parole period of eight years. It is without question that even the Form 1 matter carries with it a great deal of seriousness.
The Offender was born in 1976 and is now 42 years of age. The offending was committed during the following periods listed in chronological order:

Count 12 on the Indictment was committed on 17 December 2011;

Count 5 on the Indictment was committed between 1 June 2016 and 31 December 2016;

Count 10 on the Indictment was committed on 8 July 2016;

Counts 8 and 9 on the Indictment were committed on 22 September 2016; and

Counts 1, 2, 3, 4 (being on the Form 1), and 7 were committed between 14 and 15 January 2017.

The period for offending therefore was between about December 2011 through to January 2017.
The Offender was arrested and charged on 15 January 2017. On 19 December 2017, the Offender was committed for trial from the Wyong Local Court.
On 9 February 2018 the matter was listed for trial in this Court on 19 November 2018 and given a call‑over date of 15 November 2018 in order for the Court to check the readiness of the matter to proceed the following week.
At the callover on 15 November 2018 the Court was advised that the trial was ready to proceed with 19 November 2018 being the first date allocated for trial. The presiding judge was told that the matter may resolve and a jury was not empanelled.
It was not until 26 November 2018, 11 days later, that the Offender was arraigned on the Indictment, at which time he pleaded guilty to nine counts and one count was placed on the Form 1. Pleas were not entered or required in respect of two counts on the Indictment, being Counts 6 and 11, as presumably the Crown accepted the other pleas of guilty in satisfaction of the Indictment.
The guilty pleas were made at a very late stage of these proceedings. Although a jury was not empanelled, all witnesses, including the two child victims, would have been interviewed, conferenced and kept on standby for the duration between the time of arrest on 15 January 2017 and the time of the guilty plea on 26 November 2018. This, of course, will be taken into account in assessing the value of the guilty plea.
The Offender has been in custody for these offences for two periods, from 15 January 2017 to 19 December 2017 and from 23 February 2018 to date. My calculation, subject to being corrected, is that the Offender has spent 774 days in custody in relation to these offences and, therefore, the commencement of the sentence to be announced should be backdated to 20 March 2017.
The Crown relied upon the following material at the sentence hearing:

the Crown Bundle (Exhibit A);

a USB stick containing the video recording relating to Count 9;

the Crown’s Submissions on Sentence, dated 14 March 2019 (MFI 1); and

the Crown’s Submissions in Reply to the Offender’s Written Submissions, dated 30 April 2019 (MFI 3).

The Offender relied upon the following material:

an affidavit signed by the Offender and prepared by his solicitor sworn 11 March 2019 (Exhibit 1);

a report by Dr Nielssen, psychiatrist, dated 6 March 2019 (Exhibit 2);

evidence by the Offender given by way of audio visual link on the sentence hearing; and

the Offender’s written submissions dated 29 April 2019 provided at the conclusion and after the sentence hearing (MFI 2).

The following facts are agreed by the parties and form the basis, amongst other considerations, upon which the Offender is to be sentenced.
The Offender is the natural father of Lucy; Lucy’s year of birth is 2003. The other victim, Emma, also shares the same birth year of 2003 and had been a long term childhood friend of Lucy. They had known each other since they were five years of age.
During her interviews with police Lucy detailed a history of verbal and physical abuse that she suffered at the hands of the Offender. Whilst I shall refer to those matters in a moment I place no weight in sentencing upon any uncharged acts or events; the sentence relates only to those matters for which the Offender has pleaded guilty, to which I have already referred.
On or around 4 October 2016 Emma attended the Offender’s residence to visit her close friend Lucy. During this visit the Offender filmed Emma in her swimming costume after playing on a slide. The video appears to focus on Emma from behind. The video was later located on a Samsung GSM Galaxy phone owned by the Offender and it also had been downloaded onto his desktop computer.
On 20 December 2016 the Offender sent his daughter a text message asking her to “organise Emma to stay over on Thursday night”. He then sent another text asking:

“Hey what do you think about going camping? Maybe we could go up the coast for a couple of days after Xmas camping? If you are lucky and behave u might get to invite Emma as she probably likes the idea of camping too.”

Late that afternoon the Offender send his daughter a further text message asking her to confirm if Emma was “definitely coming over Thursday night” and telling her to remind Emma to “bring her swimmers in case you want to set up the slip and slide or depending on the weather maybe go to da beech”.
Early in January 2017 the Offender organised to take his daughter and her close friend Emma to a camping ground on the Central Coast. On 11 January 2017 the Offender sent Emma text message as follows:

“Hi Emma it’s MR Lucy’s dad are you all set for tomorrow? Don’t forget to bring a sleeping bag and a pillow. Will your mum be dropping you off here in the morning.”

On 12 January 2017 the Offender travelled with his daughter Lucy and Emma to the Central Coast for the purpose of the camping holiday. The Offender set up a large tent which had three internal rooms. The two sleeping areas were separated by a central living area. The Offender slept in one of the sleeping areas and the two young girls slept in the other sleeping area.

Count 1: Aggravated Indecent Assault: s61M(2) Crimes Act

At about 1:00am on 14 January 2017 Emma was sleeping on a mattress on the floor of the tent. She was wearing a nightie and underwear but was not using a sleeping bag as it was too hot.
She woke up and rolled over to find the Offender lying next to her on the ground next to her mattress. He was rubbing the outside of her vagina on the outside of her underwear.
Emma asked, “What are you doing?” and the Offender responded, “Oh nothing”. Emma pulled down her nightie which had been lifted up to her lower stomach. The Offender rubbed Emma’s stomach and asked, “Do you remember what was just happening?” She said, “No” and tried to go back to sleep.
The Offender continued massaging Emma’s stomach. He asked her, “Do you like me?” He then asked her to kiss him but she refused. She rolled over to her left side away from the Offender. The Offender was still massaging her stomach. She then remembers lying on her back and feeling the Offender’s hand getting lower. She told him to stop.
The Offender asked Emma to stand up and they walked to the middle section of the tent. He held out his hand to Emma and asked her to lie on his bed telling her, “I just want to talk to you, I won’t hurt you”. She said, “I don’t want to” and tried returning to bed but the Offender grabbed her by the side. She struggled to get out of his arms and told him she was going back to bed.
After returning to bed the Offender again lay down on the ground next to Emma. He asked her, “What is wrong?” and told her she could tell him anything and that she was always welcome to come over to his house. The Offender again asked Emma, “Why are you upset, I know you are angry, I can read you very well. You go quiet when you’re upset and angry”. She told the Offender she felt uncomfortable and the Offender told her, “Don’t be, I’m always here to talk to you whatever you need”.
The Offender told her that she was a good person and had a really good body and that she could be a model. At this point Lucy, that is the daughter of the Offender, woke up and asked, “What are you doing?” The Offender told her they were just talking and he then left the sleeping area. Emma put a sleeping bag over herself and went to sleep.

Counts 2 and 7: Using intoxicating substance with intent to commit an indictable offence, namely indecent assault, s38 of the Crimes Act

At around 9:30pm on 14 January 2017, Emma and Lucy returned from watching the movie “Fantastic Mr Fox”, which had been screening at the caravan park.
Upon entering the tent the Offender handed them each a drink in a disposable plastic cup. He told them it was cordial and they should drink it. Emma drank all of the cordial within the cup although she thought that it tasted funny. Lucy consumed half of the drink in her cup before complaining that the drink tasted weird. The Offender told the girls to drink all of it as cordial is expensive.
After consuming the cordial the girls walked to the caravan park bathroom to brush their teeth. On the way back to the tent Emma started to feel dizzy and found it hard to stand up. Lucy assisted Emma back to the tent; at one stage Emma fell down. Once inside the tent Emma fell on her bed and felt really tired. The Offender told her she was probably suffering from heatstroke and that they should probably go to sleep.

Count 3: Aggravated sexual assault of a child under the age of 16, s61J of the Crimes Act

At about 1:00 or 1:30am on 15 January 2017, Emma was sleeping on a mattress on the floor of the tent. She was wearing a nightie and underwear but was not using a sleeping bag as it was hot. She woke up and thought she saw a flash of light. She saw the Offender in front of her.
The Offender then pulled Emma’s underwear down to her ankles and started rubbing around her vagina before placing his fingers inside her vagina. Emma said she felt him rubbing around in it.

Count 4 (Form 1): Aggravated indecent assault of a child under 16, s61M(2) of the Crimes Act

The Offender then pulled up Emma’s nightie using both hands. He rubbed and kissed her breasts. She asked, “What are you doing” and the Offender replied, “Shush”.
Emma told him to stop and the Offender placed his left hand on her chest near her collarbone, holding her down. The Offender again commenced rubbing her exposed breasts in a circular motion with his right hand before kissing and sucking her left nipple. He then commenced to suck both her nipples and she felt a wet feeling on them.

Complaint

Emma started screaming for her friend Lucy, the daughter of the Offender, who was asleep in the same area of the tent as Emma. The Offender attempted to cover her mouth. Lucy did not wake up immediately.
When she finally woke up the Offender told Lucy, “I found her naked and I was just going to put the sleeping bag on her”. Lucy saw Emma’s underwear was down around her legs. The Offender continued to hold onto Emma who was attempting to get away.
The Offender told her he would go to gaol because she was making a disturbance and also stating, “It wasn’t me, I just found you like that”. Emma continued to attempt to leave the tent however the Offender held her around the middle of her torso to prevent her from doing so.
He said to Lucy, that is his daughter, “I’ll hold her down, she’s just overreacting” and both Lucy and the Offender tried to hold Emma by her arms and around her waist. Emma attempted to get her phone to call her mum but the Offender and Lucy prevented her from having access to her phone.
She eventually was able to run into the middle section of the tent and was trying to unzip the main door to the tent. Fortunately, RN, who was camping nearby, heard Emma screaming and was standing near the door of the tent. She heard a young female voice say, “Help, get away from me” and a male voice saying, “Shush, shush”.
RN then asked, “Is everything okay” and the Offender again stated that he had found Emma naked and that she was overreacting. Emma finally unzipped the door to the tent and ran down the street; RN followed her and after a short discussion she contacted the police.

Crime Scene

Police arrived at 2:14am. The Offender immediately advised, “This is a misunderstanding. I woke up and saw her bottom half had become uncovered during the night and I was just trying to cover her up when she woke up and panicked”. Police conducted a search of the tent and found a red duffle bag containing the following:

two condoms still sealed;

two sachets of “Stay Wet For Longer” lubricant;

an open packed of diazepam tablets 5 milligrams, in the name of the Offender; three blister packs were in the packet and one was completely empty. Tablets filled the remaining two blister packs;

a packet of metermine 40 milligram tablets in the name of the Offender;

resealable bags containing a white residue;

a roll of duct tape;

a tube of Bepanthen nappy rash cream;

a plastic resealable bag containing another six capsules; and

a Samsung mobile phone.

The Offender’s mobile phone was seized by police who observed it to contain a number of photographs on the phone that depicted teenage girls. There were a number of images on this phone of both Emma and the Offender’s own daughter, Lucy, at the camping trip. Those images were of the girls walking in the caravan park in swimmers, taken from behind them, and in some cases cutting off their heads but photographing the lower part of their bodies.

Toxicology

Police observed Lucy, that is the daughter of the Offender, to be quite sleepy and vague and sitting in one of the camp chairs. Lucy disclosed to her mother:

“Dad gave me this cordial that tasted like it had detergent in it. Dad said he just washed it out. I was going to tip it out but dad said I had to drink it because it was expensive cordial.”

Diazepam was detected in blood samples taken from both Lucy and Emma. An expert statement from forensic pharmacologist Dr Fu indicated that based upon Emma’s blood diazepam concentration of 0.17 milligrams per litre at 4.40pm on 16 January 2017 and applying the appropriate elimination half‑life of diazepam at the time of the incident her blood diazepam concentration would have been close to 0.34 milligrams per litre, which was within the reported therapeutic range, and is consistent with her consuming around 1.5 tablets of Valium at or about 9.30pm on 14 January 2017 after returning from the movie.
Although her blood diazepam concentration was at the low end of the therapeutic range at the time of the incident, given that she is inexperienced to diazepam the effects would likely have been sufficient to cause her sedation to the extent that the sexual assault committed upon her could be facilitated by the Offender. The signs and symptoms she displayed were consistent with being well affected by the sedative drug given to her by the Offender.
Dr Fu also opined that based upon Lucy’s blood diazepam concentration of 0.07 milligrams per litre at approximately 9.30pm on 15 January 2017 and applying the usual elimination half‑life, at the time of the incident her blood diazepam concentration would have been close to 0.1 milligrams per litre, which was just under the therapeutic range and is consistent with her consuming less than half a table of Valium at about 9.30pm on 14 January 2017.
Although the following does not appear in the Agreed Facts it plainly arises that the Offender administered 1.5 tablets of Valium to Emma and half a Valium tablet to his daughter upon their returning from watching the movie at the camping ground on 14 January 2017.

DNA

DNA recovered using the Yfiler system and the vulval swab taken from Emma during the SAIK examination matches the Offender. The male DNA recovered was also expected to match all males of his paternal line and to occur in approximately 1:750 unrelated males in the general population. A test for amylase conducted on the swabs taken from the left and right breasts of Emma was positive, indicating that saliva may be present.
A mixed DNA profile was located on the left breast and the Offender cannot be excluded as a contributor to this mixture. Assuming that the two contributors are Emma and the Offender it is 1:100 billion times more likely to be the combination of their DNA in the profile than anyone else in the population. The DNA recovered from swabs taken from the backs and fronts of both of Emma’s hands has the same profile as the Offender.

Arrest

An iPhone 4S located on the Offender when arrested was seized by police. Subsequent examinations revealed the following internet searches had been made using that mobile phone on 13 January 2017:

at approximately 11:25am the search was “how long does metermine take to work?”;

at approximately 11:26am the search was “how long does Valium take to kick in?”;

at approximately 11:29am the search was “how much Valium to take”;

approximately 11:29am the search was the same, that is, “how much Valium to take”. I should note the same search was conducted at approximately 11:30am and 11:31am as well as 11:33am;

at approximately 11:33am the following search was conducted on the Offender’s phone: “how much Valium to take for 50 kilogram female”;

at approximately also 11:33am again searched was “how much Valium to take for 50 kilogram female”; and

at 11:34am the final search on the phone was conducted using the words “Valpam 5 to sleep”.

ERISP

The Offender was arrested and agreed to participate in an ERISP police interview where he made the following comments:

“1.30 this morning I woke up to go to the bathroom and I was confronted with a semi‑naked girl so I went to put a sleeping bag, blanket on top of her. I didn’t know what to do because my daughter was asleep and she woke up and freaked out”;

“I was confronted with what I saw ... it was I think basically underwear was half off I think and she had a top half up”;

“she started freaking out ... she realised that she was in that state and she started screaming, ah, she actually called out to my daughter ... and she tried to get out of the tent”;

“I asked her to be quiet and then I asked my daughter to try and step in ... she was trying to get out the door, she was trying to use the phone ... and she was totally irrational”;

“when she first woke up ... I was standing just outside the door, I was about to grab the sleeping bag which was on the floor in the common area, in the middle section”;

“I tried to calm her down, I tried to sit her down but she, she she’d covered up by then”; and

“I made the decision to go outside the tent and call the lady over and ask her to come over and help ... she tried to help Emma calm down, she offered some breathing exercises”.

The Offender agreed that he was prescribed Valium, also known as diazepam, to assist him with sleeping. During the ERISP the Offender also advised police that he may have taken photographs of both Lucy and Emma from behind during the camping trip as he couldn’t work his phone properly and had chlorine on his hands.
An Apple iPhone located in the possession of the Offender was seized and subsequently analysed by the police. Numerous photographs of both Lucy and Emma in their swimming costumes were located on the phone. A photograph depicting Lucy and Emma walking through the caravan park in their swimming costumes was located. This photograph was taken from behind the girls at around 12:03pm on 14 January 2017. A photograph of Emma walking through the caravan park in her swimming costume was also located. The photograph was also taken from behind at approximately 12:03pm on 14 January 2017.

Analysis of Electronic Devices Belonging to the Offender

At 1:35pm on 16 January 2017 police executed a search warrant on the Offender’s residence. A number of electronic devices were seized. Police seized and analysed a Samsung GSM Galaxy mobile phone and a desktop computer belonging to the Offender.
Subsequent analysis of the Offender’s Galaxy phone revealed photographs of two young females wearing swimming costumes, identical to those belonging to his daughter and to Emma, within the bathroom of the Offender’s premises. Those photographs were date stamped 4 October 2016.
The web history on this mobile phone, included the website XNXS.com which contained videos such as the following:

“dad caught fucking teen baby daughter”, that was searched on 11 May 2016;

“dad and teen daughter”, that was searched on 29 June 2016;

“old man fucking young girl”, that was searched on 2 July 2016;

“daddy fuck his friend daughter!”, that was searched on 14 September 2016;

“daddy brutally fuck his young stepdaughter”, that was searched on 14 September 2016;

“when you want someone you can’t have”, that was searched on 3 October 2016;

“young naked girls”, that was searched on 14 October 2016;

“father enjoying his daughter tight pussy”, that was searched on 2 December 2016; and

“bad father fucking his beauty wife and cute schoolgirl daughter”, that was searched on 2 December 2016.

There were a number of other photos found on each of his mobile phone which were then saved onto his desktop computer.

Count 5: Produce child abuse material: s91H(2) of the Crimes Act

During the course of the JIRT interview Emma also disclosed the following:

“We had a sleepover ... in the holidays after term 3 of school ... I had to have a shower and the lock was broken ... when Lucy was in the shower he kept opening the door to her. And then when I was in the shower, he did the same to me. And he had his phone out too, and I was covering myself up … all I could see is his hand a phone in the door’s opening and after that he just kept unlocking the door when I was getting changed and drying off. There was a mirror and I was getting changed and I could see to the mirror then me.”

Five sequential photographs of Emma in the shower were then located. Emma can be seen in the shower recess completely naked trying to cover herself as she turns away from the camera.

Counts 8 and 9: Aggravated indecent assault (s61M(2) of the Crimes Act); Produce child abuse material (s91H(2) of the Crimes Act)

A video file created 22 September 2016 was located in the Offender’s Galaxy phone. The video depicts the Offender’s daughter fully clothed on the lounge room floor of her residence; initially she is covering her head with a cushion. The person taking the video cannot be seen and says in a high‑pitched voice, “Instagram”.
The person taking the video uses his right hand to grab Lucy by the right ankle and pull her legs apart. A male person with a high‑pitched voice states, “Get the puss” as he leans down and grabs her on the vagina over her underwear. Lucy is crying and attempting to get away from the male for the duration of the recording.
This recording contains a hash value referred to in the agreed facts, which I will not repeat and it also forms Exhibit B in the sentence hearing. The same recording with the identical hash value was also located on the Offender’s desktop computer. SEEB confirms this video was downloaded from the Offender’s mobile telephone to the Offender’s personal laptop computer.

Count 10: Produce child abuse material: s91H(2) of the Crimes Act

In her record of interview with police Lucy told them that the Offender would sometimes come into the bathroom when she was in the shower. She said that he took a picture of her when she was facing away. She said she used to lock the door but that he could open the door with a screwdriver.
Four sequential photographs of Lucy dated 8 July 2016 were located on the Offender’s Samsung mobile phone and also on his desktop computer. Image numbered ending 266 depicts Lucy in the shower with her entire body exposed. Images ending 267 and 268 depict the Offender’s daughter in the shower with her breasts and part of her body exposed. Image ending 269 depicts her in the shower with her breasts exposed.
The photographs, as agreed between the parties, meet category 2 of the Interpol Baseline Categorisation for child abuse material. I pause to note that I have not viewed the photographs and do not intend to but accept that the description as has been agreed between the parties.

Count 12: Produce child abuse material: s 91H(2) of the Crimes Act

Located in a file entitled “Family/Pictures of Lucy” on the Offender’s desktop computer, three sequential photographs dated 17 December 2011 depict Lucy when aged eight years old. Lucy is dressed, lying on a bed with her mouth taped shut with grey electrical tape. Her hands are bound together with green and yellow electrical tape. Her feet are also bound together with green and yellow electrical tape.
These photographs meet category 2 in the Interpol Baseline Categorisation. I have, however, been provided with copies of those photographs and whilst it appears that they have been almost adequately described in the Agreed Facts I note further, having viewed the images myself, of which there are three, that they depict the Offender’s daughter lying on a bed with what is often referred to as duct tape or strong adhesive tape, silver in colour, across her mouth extending from just below her nostrils to about her chin area. There is then what appears to be yellow and green electrical tape tied around her hands, which are placed in front of her around her groin area, and her ankles are then taped together using the same tape, namely what appears to be yellow and green electrical tape, taped tightly around her ankles holding them together. At the base of the bed her head is resting on a pillow and although it is difficult to make any comments about the distress in which the victim may have been subjected as a result of this offending it appears that in at least the third photograph, that is photograph 5, she has her eyes firmly closed as if she was in distress.
The Victim Impact Statement is going to be read verbatim with changes to any identifying features and also there are some corrections in relation to grammatical matters such as tense and the like. But otherwise what I shall read is faithful to what has been recorded by the author of the Victim Impact Statement.
The reason I am reading this onto the record is to give context to the relationship between the Offender and his daughter, both as they pertain to these offences and generally. I do not rely upon any additional offences or uncharged acts that may arise from the matters referred to in the Victim Impact Statement as in any way aggravating the offending.
The Victim Impact Statement is authored by a Psychologist whom the victim Lucy consults, located in Sydney. In the preamble to the report the Psychologist stated that she had been seeing Lucy since January 2017. The report is dated 22 January 2019, which permits the conclusion that the information contained in the report has been garnered through consultations throughout that period of two years:

“Lucy has spoken of the impact of her father’s behaviour towards her at the time of living with him. She has spoken of being fearful of what he would do when she arrived home from school, hoping he wouldn’t be there. If he was home she expected bullying and torment starting from the moment he would call her into his bedroom. Lucy has spoken of being unable to breathe while he physically held her down, crying in pain and feeling powerless as the Offender laughed at her response. Lucy remembers trying to hide bruises on her legs from her friends at school. She has spoken of feeling exposed and violated in the shower when the Offender would unlock the bathroom door with a screwdriver and come in to pour cold water over her and to take her photograph. Lucy has said that she felt she had no choice in what happened to her in her home. Lucy recalls feeling scared and often screaming “this is child abuse”, hoping neighbours would hear and send the police, although they never did. She felt alone and vulnerable.”

Lucy has told the Psychologist the lasting impact of her experiences with her father. Since her father has been incarcerated Lucy has suffered emotionally, physically and socially. The following appears in the Psychologist’s report:

“Lucy has suffered many physical symptoms including nausea, stomach sensitivity, vomiting, headaches, weight gain, fatigue and difficulty sleeping. She misses a lot of school due to these symptoms and then falls behind in her work. Lucy often feels emotionally overwhelmed by stressors and then feels unable to cope with daily life. She has had panic attacks in which she has been sweating, shaking and finding it hard to breathe and feeling dizzy. Lucy has later linked these panic attacks to confronting things her grandmother has said to her about her father.
Lucy reported feeling very sick and panicked in the months leading up to the court date, regularly feeling unable to eat or sleep. Lucy has explained that she heard many confronting things about her father during the court case and she believes her panic symptoms are a result of this.
Despite her illness and her stress Lucy avoids going to the doctor as she does not like to be touched and so her symptoms persist. Lucy has difficulty opening up to her friends and trusting people. She has told the Psychologist that she always feels that she is hiding something from people, like there is something that she wants to say but cannot. This makes is hard to make new friends and she often feels isolated. She also feels targeted by some cruel girls and ends up moving from group to group. Some friends have spread rumours about your daughter such as the fact that she was raped, which has upset her emotionally and caused her to move friend groups again. Lucy has been asked by some peers why her father is in gaol, a question which Lucy feels she needs to avoid and so thereby creates further distance between herself and her friends. Lucy has difficulty speaking about her own experiences and finds it hard to connect with people about things. She often finds herself being used as people’s “dumping ground” for their problems before they move on and leave her alone again. She has told the Psychologist that in class she often thinks about her friends not really liking her, which makes it difficult to concentrate and affects her school performance.
Lucy’s relationship with her family has been significantly affected. Lucy now feels distant from her paternal grandmother, feeling unsure about how much she can trust her. Her grandmother was a significant support in Lucy’s life prior to the last two years and Lucy now feels that her grandmother has chosen her father over her. Lucy has heard other members of her extended family speak about her father and her mother and Lucy feels judgment from people in her family. After incidents like this Lucy invariably suffers from symptoms including nausea and retreats from school. She has often woken in the middle of the night screaming for her mother saying that she cannot breathe and later saying she believed those symptoms are triggered by a specific thing one family member has said.
Lucy’s level of activity has also been affected by the offending. Lucy is an experienced dancer and in the past has done several dance classes per week. Her physical symptoms and social difficulties have caused her to attend less dance classes and enjoy dance less. Lucy also avoided her birthday recently, saying that she did not have friends she wanted to spend it with. She also isolated herself from her family at Christmas. Lucy spent much of her school holidays in bed either feeling unwell or simply preferring to sleep. The impact on Lucy of the offending has been significant and her emotional wellbeing continues to fluctuate. Lucy has difficulty understanding herself and her emotions and is just now beginning to hope for a more positive future.”

The Offender was cross-examined about his response to the Victim Impact Statement at the Sentence Hearing. Rather than express any remorse, regret or contrition in respect of the pain and suffering that has plainly been experienced by his daughter, the one matter which the Offender made comment about in the Victim Impact Statement is what he referred to as an inconsistency. That was that he challenged the accuracy of the statement as it related to her attending dance lessons on a less regular basis.
As will become apparent from what I have to say further in regards to the sentence the Offender has failed to show any remorse, any contrition and, whilst he plainly regrets the personal effects that his offending has had upon him, he is blind to the effect that the offending has had upon his daughter and her close friend.
A predominant factor relevant to the sentence is the objective seriousness of the offending. It is not, however, necessary nor indeed is it possible to articulate a determination by placing the offences along a hypothetical range. It remains an essential task to undertake an evaluative assessment of the objective seriousness of the offence. The starting points are the guideposts to which I have already made reference; that is, the maximum period of imprisonment together with the standard non-parole periods as they apply. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality.

The abhorrence with which the community regards the sexual abuse of young children and the emphasis attached to general deterrence in sentencing Offenders such as the present Offender is well‑recognised at law. I note the comments of Sheller JA in the matter of R v BJW (2000) 112 A Crim R 1 at [20] in which it was stated by him that:

“The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim.”

There is no hierarchy of sexual acts for the purposes of the criminal law. The seriousness of the offending has to be assessed by reference to the context within which it occurred.
In the present matter the fact that one of the victims is the Offender’s biological daughter and the other a close friend of his daughter adds to the seriousness of the offending. This is largely due to the fact that he was able to place himself in a position of trust so as to abuse these children, acting as a parent caring for the two girls particularly whilst camping. I have no doubt that members of the community would consider your conduct with utter disgust and loathing as it would with all perpetrators of child sexual abuse. You have demonstrated yourself to be a repugnant member of our community who has engaged in heinous conduct for your own perverted pleasure.
Assessing the objective seriousness of a particular offence involving child abuse or child pornography material offence is the most significant aspect of the sentencing process. In the matter of Minehan v R (2010) 201 A Crim R 243, the Court of Criminal Appeal identified the following factors as being relevant to the assessment of the objective seriousness of the offending, including the possessing, dissemination, transmission, et cetera of child pornography. They are as follows:

whether actual children were used in the creation of the material. In this case actual children were used by the Offender;

the nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. Whilst the nature of the material produced in this matter falls below the mid‑range the familial connection between the Offender, his daughter and his daughter’s friends does heighten the seriousness of the offending;

the extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. I have already made some comments about the three photographs of your daughter being bound and gagged on the bed and will not repeat those remarks although it appears that she was in some degree of distress. I am also mindful of the distress shown by her, and agreed between the parties, as her being upset and crying after you chased her around the living room with your phone filming her, shouting “Instagram” and “grab the puss” before placing your hand on the outside of her underwear in the region of her vagina. It appears from Exhibit B that that caused her great upset and concern, as one would ordinarily expect. You, on the other hand, seemed completely oblivious to the effect that that conduct had upon your daughter;

the number of images or items of material. The number of images in the present case is small compared to other cases of this type;

whether any payment or other material benefit was made or provided to the Offender. This consideration does not arise in this case;

the proximity of the Offender’s activities to those responsible for bringing the material into existence. Again, this does not particularly arise as the Offender was the sole creator of the child abuse material and, so far as I am aware, there is no evidence of dissemination and the like;

the degree of planning, organisation or sophistication employed by the Offender in acquiring, storing, disseminating or transmitting the material. The conduct of the Offender in this case was not at all sophisticated;

whether the Offender acted alone or in a collaborative network of like‑minded persons. There is no evidence of that in this case so that consideration identified by the Court of Criminal Appeal does not arise;

any risk of the material being seen or acquired by vulnerable persons, including children. There is no evidence of that in this case and, therefore, I shall ignore that consideration;

any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. This consideration does not arise; and

any other matters in s21A(2) or (3) of the Crimes (Sentencing Procedure) Act bearing upon the objective seriousness of the offence, about which I will give separate consideration and provide reasons in a moment.

Findings Regarding Objective Seriousness

Count 1: Aggravated Indecent Assault

This count involved the Offender rubbing the vagina of Emma on the outside of her clothing on the first night of the camping trip.
The Crown submitted that the key factors in assessing the objective seriousness of this count include the actual character of the assault, the age difference between the Offender and the victim - I think you were around 40 at the time and she was around 13 years of age - and the degree of physical contact involved. In respect of that count it was submitted that the objective seriousness of the offence was highlighted by a course of conduct that continued despite the protests of your victim Emma as well as the fact that you touched Emma in three different parts of her body.
Additionally, the Crown highlighted the abuse of trust in this offending as you had taken the victim Emma on a camping trip without any further parental supervision. You were the person solely in charge of her, solely charged with her care, responsibility and wellbeing.
Next, the level of coercion when Emma woke up and you will recall the facts agreed between the parties, that you forced her back down using your hand or arm. And finally, that it was a planned criminal activity, and I will return to that in a moment.
It was submitted by counsel on your behalf that these offences were objectively serious and do not fall below the mid‑range of objective seriousness; that is a frank and fair assertion of counsel acting in your interests. It was, however, subsequently submitted on your behalf in supplementary written submissions that any Crown submission that the act was pre‑planned is speculative.
In reply, the Crown stated in MFI 3 that just because the equipment, being the condoms and lubricant and the like, were not in fact used does not affect the overall criminality of the offending but rather it is the planning involved in taking with you condoms, lubricant and sedative medication on a camping trip with your daughter and her close friend which aggravated and affects the objective gravity of the offending.
Having regard to all submissions made and the facts pertaining to this count, I find that it falls at the mid-range of objective gravity.

Count 2: Cause to Take Intoxicating Substance

This count relates to the Offender giving Emma a “funny tasting drink” which upon investigation contained diazepam.
It was submitted on behalf of the Crown the seriousness of this offence is reflected by the abuse of a position of a trust or authority with the girls being on the camping trip and under your care. It was also submitted that it was clearly a planned criminal activity based on the internet search history that was found on your phone; that is, the search about how much to administer to a girl of some specified kilograms in weight.
No specific submissions were made on your behalf in relation to this particular count other than that it was around the middle of the range of objective seriousness. I do not accept that submission and I find that it falls above the mid‑range of objective seriousness for the reasons submitted by the Crown.

Count 3: Aggravated Sexual Intercourse of a Child Under 16 with the Form 1 attaching being aggravated indecent assault

Count 3 relates to the digital penetration of Emma, which you performed in a tent on the second night of the camping trip. The Crown submitted this offence was above the mid‑range of objective seriousness based on the following factors:

the abuse of a position of trust for the reasons previously outlined;

the offence was part of a planned criminal activity based on the equipment that was found upon the Offender’s arrest;

the nature of the sexual intercourse; and

the Offender’s conduct post the offence with the Offender covering Emma’s mouth so you could stop her screaming and then also telling Lucy that she was overreacting and preventing Emma from calling her mother on her telephone.

They are matters which inform the objective gravity or seriousness of your conduct.
It was submitted on your behalf that the offending fell at the mid‑range compared to other matters of this type.
Whilst the penetration was digital I find that that does not of itself mitigate the offending; to find otherwise would be to engage in a hierarchical assessment of sexual offending. I also make the same finding with regards to Count 1 in respect of planning which was involved, when considering the equipment which was found in your possession when you were taken into custody by the police, including the condoms, the lubricant, the sedative medication, the duct tape, nappy rash cream and the other items to which I have previously referred.
I find the offending in respect of Count 3 falls above the mid‑range of objective seriousness. Additionally, the objective gravity of this offending is elevated by the Form 1 offence which attaches to it; the Form 1 offence involved a further indecent assault of Emma that night. The offence on the Form 1 will only be taken into account when considering the principles of specific deterrence and retribution.

Count 5: Produce Child Abuse Material

This count relates to the five photographs of Emma taken whilst she was naked in the shower at the home of the Offender and Lucy. It was submitted on behalf of the Crown that this offending was heightened by the position of trust which the Offender abused in the commission of the offence.
It was submitted on your behalf that whilst the material was embarrassing and humiliating the material “did not feature too high up the scale of child abuse material”.
Whilst plainly you abused a position of trust by forcing your way into the bathroom to photograph Emma in the shower, it does, however, in the scheme of offences of this type, fall below the mid‑range of objective seriousness.
I am also mindful, and this bears upon the question of contrition, of the evidence you gave on the last occasion concerning your reason for photographing your daughter and her friend in the shower at your house, namely, that you were concerned about the water bill and that you were photographing them in the shower to hurry them up. That is absurd and I reject it out of hand.

Count 7: Cause to Take Intoxicating Substance

This is the same act as Count 2 but in relation to your own daughter. That is, you administered a sedative drug to your daughter. The submissions made by the parties in respect of this count are more or less the same. I find the offending is above the mid‑range for offending of this type for the reasons previously given for Count 2.

Count 8: Aggravated Indecent Assault

The next count is aggravated indecent assault relating to grabbing the right ankle of your daughter forcing your daughter’s legs apart then grabbing your daughter on her vagina over her underwear whilst saying to her, laughingly, “get the puss”, insinuating amongst other things that the video was to be posted on Instagram.
It was submitted on behalf of the Crown that this offence fell in the mid‑range for offending of this type as it was committed in circumstances where you forcibly held your daughter’s legs apart and your daughter was crying as this occurred. It was further submitted by the Crown the objective gravity is elevated by the fact that it occurred in her home, a place where your daughter is entitled to feel safe and protected. I am mindful of the comments of the Court of Criminal Appeal in the matter of R v Lulham (2016) 263 A Crim R 287 in that respect. I am also mindful of the fact that whilst it was the home of his daughter it was also the residential home for the Offender. Nevertheless, I find that the conduct of the Offender in this respect is disturbing and falls in the mid‑range of objective seriousness for offending of this type.

Count 9: Produce Child Abuse Material

This concerns the production of the video or the creation of the video you made when you were holding your daughter’s legs apart. The Crown submitted that a number of matters should be considered in assessing the objective seriousness of this offence, including:

the abuse of a position of trust. There is no doubt that you abused the trust placed in you by your daughter;

the distress that your daughter was clearly suffering whilst you were undertaking the conduct depicted on the video (Exhibit B); and

that the offence was part of a pattern of ongoing behaviour towards your daughter which she described via her Psychologist in the Victim Impact Statement.

Again, I pause to emphasise that, whilst I have had regard to the Psychologist’s report in order to understand the context of the relationship you have, or had, with your daughter, no part of this sentence relates to any uncharged acts or the like.
It was submitted on your behalf that whilst the material was embarrassing and humiliating it did not “feature too high up the scale of child abuse material”. Counsel for the Offender did concede that it was, however, a pattern of ongoing behaviour. Your counsel also conceded that you had abused the trust placed in you by your daughter and others.
This offence cannot be significantly mitigated by the nature of the video being only category 2 on the scale. The offence was part of a pattern of abusive and degrading behaviour towards your own daughter which involved a breach of a position of trust in an environment in which your daughter should have felt safe. I have no hesitation in finding that this offence is objectively serious and falls at, about or just below the mid‑range for such offending.

Count 10: Produce Child Sex Abuse Material

This count relates to four photographs of Lucy in the shower at her home, at your home. The offending is similar to the photographs taken of Emma in the shower which, no doubt, were embarrassing and degrading to both girls. I find the offending the subject of count 10 falls in the mid‑range of objective seriousness.

Count 12: Produce Child Abuse Material

This count relates to the three photographs of Lucy, your daughter, lying on a bed with her mouth taped shut, using duct or electrical tape, from her nostrils down to her chin. Her hands were bound together at her front in the area of her groin. Her feet were bound tightly together. She was just eight years of age. The gravity of this offending is heightened by your daughter’s age at that time.
Whilst the material rates only a category 2 on the scale of child abuse material the position of trust which you abused in taping your daughter, confining her in the binds in which you did and then taking photographs of that is abhorrent and aggravates so as to heighten the objective gravity of the offending to the mid‑range. I recall your evidence, to which I will give greater detailed consideration in due course, that you thought this was funny. To say that conduct of this nature is funny again speaks against any finding of remorse or contrition on your part.

The Subjective Case

Foundation of Subjective Case

The subjective material tendered by the Offender comprised the following:

an affidavit by the Offender sworn 11 March 2019;

a report by Dr Nielssen, psychiatrist, dated 6 March 2019;

oral evidence by the Offender provided at the sentence hearing only after objection was taken to the affidavit by the Crown and the Offender’s counsel was left with no option but to call his client in order to have the affidavit admitted.

The report by Dr Nielssen was prepared following an interview of the Offender via audio visual link from prison on 26 February 2019. Dr Nielssen was also provided with the Indictment, a Statement of Agreed Facts and the reports of two Psychologists, Jenny Hawell and Howard Higgins; in respect of the latter there were two reports. Despite an invitation from the Court, counsel for the Offender failed to tender the material referred to; that is, the reports by Psychologists Jenny Hawell and Howard Higgins. It is difficult to discern the extent to which that material which was provided to the expert but not to the Court affected the formulation of the opinion by the expert as to the matters set out in the report. It does cast considerable doubt as to the reliability of the expert’s opinion in circumstances where there is no transparency as to the reasoning leading to his conclusions.
The result, however, is that the Court is left with a single source for the Offender’s subjective case, and that is you yourself. The difficulty created for the Offender is that unless he is accepted as a reliable and truthful witness his subjective case will attract little, if any, weight.

Oral Evidence of the Offender

In examination‑in‑chief the Offender adopted the contents of his affidavit as his evidence, however, during the sentence hearing he did not have access to the affidavit as he was appearing via AVL from the Correction Centre at which he was residing. As I previously observed, it was the intention of counsel acting for the Offender to simply tender the affidavit, however ,the point under the Evidence Act was taken by the Crown, resulting in the Offender being called and cross-examined.
He initially agreed with his affidavit and with the Agreed Facts with regards to the offences that occurred at the Central Coast campground, being Counts 1, 2, 3, 4 and 7. He stated that he is unable to explain his actions; he accepted that those actions were immoral, illegal and inexcusable. I consider those remarks to be a gross understatement.
He then went on to attempt to justify his behaviour because he was in a “very dark place personally”, citing an unhappy relationship with his wife, the mother of Lucy, a work life consisting of day to day grind and an inner turmoil of depression, unhappiness and hopelessness for his future. He stated that he can now see that these things led him to make poor choices and commit the offences. Many people experience these negative life influences but they do not justify the behaviour in which you engaged.
You repeated the same justification with regards to the offences committed in the Northern Sydney region, being counts 5, 8, 9 and 10. You stated that upon reflection you “may have thought it was funny and a joke but was in fact quite traumatising” to your daughter and may have a lasting impact upon her. It seems to me undoubted that it will have a lasting impact upon her and for you to consider your behaviour a joke is absurd and abhorrent.
I find your excuse insulting to your daughter and I find that your excuses in relation to much of your offending highlights the complete and utter lack of insight which you have shown into your offending. For example, to tie your daughter down with duct tape because you considered it to be funny is ridiculous and absurd; no ordinary person of the community would agree with you. To force your way into the bathroom when your daughter and her friend were showering and take photographs of them because the water bill was too high is just utterly ridiculous and unacceptable. You have in the course of your evidence, to which I will return to in a moment, demonstrated a complete lack of insight which permits and compels me to make a finding of no remorse.

The remainder of your affidavit details the effects that the convictions and the incarceration have had upon you. In fact, the theme of your affidavit is rather that you regret what occurred or perhaps regret being caught and regret the effects it has had upon your personally. For example, you refer to being exposed to danger and retribution from other prisoners; you refer to losing the family home; you refer to losing relationships with your daughter; you refer to, quite oddly, your inability to respond to an outstanding tax debt as one of the negative effects of your offending; you refer to losing your business as a landscaper including your landscaping vehicle as being one of the effects of your offending. They are utterly irrelevant compared to the effects your offending has had upon the two young victims who you assaulted and treated contrary to law.
None of your excuses or none of those outcomes I have just referred to can be given any weight, entitling any leniency, when compared to the cowardly, abusive conduct you engaged in in taking advantage of and breaching the trust of two young girls, including your daughter. None of those factors could be considered anything like extra curial punishment in nature but simply the obvious effects of the offending which occurred as a result of your choice.
In paragraph 33 of your affidavit you make one sole reference to the other victim Emma and you state similar thoughts with regards to your daughter Lucy. You go on to say that you cannot explain your actions and the attempts you have made to explain your actions before this Court, frankly, have made a mockery of this Court and the sentencing process. Your excuses are transparently fabricated and false and do not justify your conduct. I note, for example, by reference to the transcript of evidence, that you were a combative witness, you were reluctant to accept a number of obvious propositions put to you by the Crown in cross-examination, you were argumentative with the Crown in cross-examination, you were resistant to answering questions and when you did answer questions you provided excuses for your behaviour which were, frankly, ridiculous.
You attempted to blame your offending upon what you refer to as going through a dark phase, however, the only psychiatric treatment you have had, it seems, is one consultation with a GP in or about 2000 when you were prescribed medication. Now, it is unclear to me where the drugs that you used to sedate these two young girls came from but, plainly, you had a single depressive episode in 2000, many, many years prior to this offending. I do not see how that psychiatric condition, such as it may have been, could have any causal connection or bearing upon your conduct.
Your explanations for your offending continued to become even more unacceptable; when you were questioned about some inappropriate photographs of your daughter and her friend you tried to discount your culpability by suggesting that the photographs were taken from your balcony as if that, for some reason, reduces the objective or other seriousness of the offending.
Whenever you were confronted with any aspect of your offending you came up with excuses which were illogical and would offend most members of society. For example, when you used duct tape on your daughter you referred to the fact that your wife was present but that she did not find that amusing and you referred to your wife fairly disparagingly in that you said, when you were asked the question at T40.31: “Q: She didn’t think it was funny? A: No, she just - she’s just a very negative towards a lot of things at the time.” To try to denigrate your wife or to try and excuse your conduct by humour in circumstances where the conduct was so offensive further aggravates your offending.
I have already referred to the fact that your excuse for first of all entering the bathroom and then taking photographs of your daughter and her friend in the shower naked was to save on your water bill, I have already referred previously to your evidence in that regard. You obviously have had considerable time to consider your offending following your late guilty plea and, frankly, your excuses for your conduct establish just one thing. That is, that you lack any insight at all into your offending behaviour.
At T35.38, or just before that, you said that you entered the bathroom and took photos of them to “hurry them up” and then you stated “to get them out of the shower because we had a massive water bill”. There is no connection between you taking photographs of your naked daughter and her close friend and the need for you to reduce your water bill. The excuse you have provided is, as I have said previously, absurd and utterly rejected by the Court.
There are plenty of other examples in the transcript of answers provided by you in cross-examination which show a complete lack of insight into your offending which obviously would lead to a finding of no genuine remorse. It is impossible or unlikely that you could be remorseful for offending into which you have no insight.

Psychiatric Report

I have given consideration to the report by Dr Nielssen, the psychiatrist who interviewed you on one occasion via AVL on 26 February 2019. You confirmed with him that whilst pleas of guilty had been entered you had memory lapses and did not remember committing the offences. This statement appears at odds with the fact that just three months prior you signed a Statement of Agreed Facts in which you agreed to the details of the facts of the offending, to which I have already referred. I can only assume, therefore, that the reference to Dr Nielssen to your lack of recollection of the events is an attempt to obfuscate and to affect the opinion which he later expressed.
You denied any interest in prepubescent children when speaking with Dr Nielssen. Leaving aside the description “prepubescent children”, the Internet searches, which I previously identified, performed by you demonstrate that you had a sexual interest in children and your conduct has demonstrated that you had a sexual interest in your daughter. Your conduct has also illustrated that you had a sexual interest in your daughter’s friend, Emma. You have shown no remorse whatsoever for that offending.
In relation to Dr Nielssen, regrettably his opinion is hampered by the fact that it was based upon essentially three sources of information: the previous reports of two Psychologists whose reports the Court has not seen and, therefore, cannot determine what weight was given to those opinions and how they affected the opinion of Dr Nielssen; secondly, your affidavit which, frankly, whilst it attempts to provide some evidence of remorse I consider it to be feigned; and thirdly, your own description or answer to questions provided in the course of the AVL interview with Dr Nielssen. Unfortunately, by reason of that fact, Dr Nielssen’s report can only attract the value which your credibility does and you have no credibility. I give no weight to the opinion of Dr Nielssen.
I also note that Dr Nielssen in seemingly adopting the diagnoses of other health professionals has not transparently exposed his reasoning in a way which is required at law so as to render his reasoning and his opinion unsafe. The diagnoses made by him were made without reference to the criteria for diagnoses of psychiatric conditions pursuant to DSM‑5. The report is flawed and will attract no weight. I further find there is no nexus whatsoever between any mental condition from which you may have suffered and your offending behaviour.

Subjective Findings

As to matters arising out of the subjective case, which require specific consideration, I make the following findings for the reasons given:

reliability and credibility. I consider you to be an unreliable witness based upon the numerous inconsistencies in your accounts and also your demeanour as a witness. As I have already observed, you are evasive and argumentative in giving evidence and your behaviour failed to demonstrate any remorse or regret for your offending, abhorrent behaviour.

Remorse. You rely upon what is in your affidavit as evidence of remorse. For the reasons I have already given I do not accept that. Your affidavit is mostly directed towards the effects that your offending has had upon you and the regrets you have about those effects. I do not accept that you are remorseful and I decline to find genuine remorse.

good character. This is a matter that the Court ought to consider. It is without doubt that you were in a position of trust for both victims. You do not have a criminal history which means that ordinarily you would be entitled to a finding of good prior character, which would entitle you to a finding of leniency in sentence. However, given your behaviour and the nature of your offending that does not occur. It was your position of good character as a parent that permitted you to commit the offences which you did. If you had a history of child sex abuse, for example, which would reflect poorly upon your character, then it is unlikely you would be taking two children camping unsupervised. In many respects you are akin to a white collar criminal who is in a position of trust by reason of the history of good character and it is that good character which in this circumstance regrettably permitted you to commit the abhorrent conduct and acts which you did. I decline to find prior good conduct as an entitlement to any leniency;

prospects of successful rehabilitation. There is no satisfactory evidence as to this. Given that no weight is to be given to the report of Dr Nielssen and given that the counsel appearing for the Offender on the last occasion declined to tender any other psychiatric or psychological material, there is no basis upon which the Court can find that rehabilitation would be successful. The highest finding I can make in your favour is the prospects are guarded;

the prospects of reoffending; I am not persuaded by the evidence which has been adduced that you are unlikely to reoffend.

A number of curious submissions were made on your behalf by counsel, Mr Radojev, appearing for you. Some of these matters I have already dealt with and will not repeat them but submissions were advanced your behalf on your behalf as to matters such as reoffending, rehabilitation, remorse, accepting responsibility, acknowledging the hurt done, all of which I have previously given reasons for rejecting. But it was then submitted on your behalf that you were not fully aware of the consequences of your actions because of your age or disability.
You were 40 years of age at the time of the most serious offending, at an age when an ordinary, normal person would be aware of the heinous nature of your conduct. Further, there is nothing about your health which would give rise to a finding of disability which would bear upon your awareness of the consequences of your offending. I reject those submissions.
It was also submitted by Mr Radojev that the sentence ought to be mitigated on the basis that you pleaded guilty. Your guilty plea was painfully delayed and worked, frankly, only to worsen the effect of the offending, not to mitigate against it. Your daughter and her friend were kept on standby to give evidence in relation to a trial in which they would have been cross-examined about your sexual conduct towards them and it was not until 11 days after the first day set for trial that you confessed and admitted guilt to the matters to which I have previously referred. I decline to make a finding that the plea of guilt mitigates against penalty or sentence in these circumstances.

Approach to Sentencing

General Principles

Section 3A of the Crimes (Sentencing Procedure) Act sets out the purposes for which a court may impose a sentence on an Offender as follows:

punishment, to ensure that the Offender is adequately punished. There is no doubt that you require stern punishment and in your case this is paramount;

deterrence, to prevent crime by deterring the Offender and other persons from committing similar offences. The sentence which I will impose upon you will reflect the need for both specific deterrence and also general deterrence. Notwithstanding the suggestion that you may have consulted a doctor about depression in 2000, I find that you are an appropriate vehicle for general deterrence and I will give emphasis to both specific and general deterrence in the sentence to be imposed;

protection, to protect the community from the Offender. This obviously looms large; you have acted as a sexual predator taking advantage of perhaps a class of the most vulnerable members of the community, children, and in particular your own daughter. The community must be protected from people like you who behave in such a vile and abhorrent manner;

rehabilitation, to remote rehabilitation of the Offender. Based upon the evidence such as it is I am unable to make any finding about the likelihood of successful rehabilitation but there is no doubt that you require rehabilitation and that will be provided to you, hopefully in custody and upon your release;

accountability, to make you accountable for your actions. Whilst you may regret your conduct and the effects it has had on you like losing your truck or your car, you have not, in my view, demonstrated genuine remorse. The sentence therefore must be directed to making you accountable for your conduct, sometime to date you have not been willing or prepared to do;

denunciation, that is to denounce the conduct of the Offender. It is trite for me to say this but your conduct offends all sensibilities of society and requires stern denunciation;

recognition, to recognise the harm done to the victims of the crime and the community. In this regard I have had regard, of course, to the victim impact statement of your daughter. Regrettably, I do not have access to any such information in relation to your other victim but I expect that she is suffering similar, if not worse, effects. The sentence will include a component which reflects the purpose of recognition of the harm which you have done to your child and to her close friend in your offending behaviour.

Having considered the objective gravity of your offending and the subjective circumstances and being mindful of all the purposes of sentencing it now falls to the Court to engage in a process of instinctive synthesis in which all such matters are weighed and considered in context, often for and against each other.

Imprisonment

I must be satisfied, having considered all possible alternatives, that no sentence, including non-custodial sentences, other than imprisonment is appropriate. In this case the Crown has contended that the threshold under s 5 has been met and that a term of imprisonment is warranted. Your counsel also made the same concession. In fact, in his written submissions he accepted twice that “a lengthy term of imprisonment must be imposed”.
I agree and find that, after considering all alternatives, imprisonment by way of full‑time custody is the only reasonable and appropriate sentence outcome in your case.

Guilty Plea

I must give consideration to your late guilty plea as is required by s22 of the Crimes (Sentencing Procedure) Act. You pleaded guilty on 26 November 2018 at a very late stage. I note that the Crown submitted that a reduction in sentence of 10% was justified in the circumstances; your counsel submitted 15%.
Although this is entirely discretionary for the Court I will be guided by the submissions made by the parties, particularly by the Crown. Whilst I have would have reduced your sentence by less than 10%, probably 5%, I will adhere to the submission advanced by the Crown and apply a reduction of 10% to your sentence.

Special Circumstances

It is not agreed that special circumstances exist so as to justify a departure from the statutory regime of parole. The Crown accepts that while special circumstances can be found, as this is your first time in custody, the fact that a person is of good character and will be in custody for the first time will not ordinarily alone constitute special circumstances.
On your behalf it was submitted that special circumstances would be found based upon your mental health, about which there is virtually no evidence, and the fact that it will be your first time in custody.
You are to be sentenced for nine very serious charges, two of which carry maximum penalties of 25 years imprisonment. Even when considering the principles of totality, as I have, it is inevitable that you will be sentenced to a lengthy term of imprisonment. The authorities on this point are clear that the fact that it is your first time in custody is not a sufficient basis for a finding, necessarily, of special circumstances.
In the sentence to be imposed I consider that the parole period to be allowed is sufficient to permit your rehabilitation and any reintegration into the community without adjusting the statutory ratio. To the extent that matters of rehabilitation and reintegration are to be considered, the period of time that you will be on parole will be more than sufficient to accommodate those needs. I decline to find special circumstances.

Consistency

In determining the appropriate sentence and the indicative sentences in relation to these multiple counts I have had regard to the statistics produced by the Judicial Commission of New South Wales. I am satisfied that the findings I will make in a moment about the indicative sentences, and having regard to the findings that I have already made concerning the objective seriousness of your offending, are consistent generally with sentencing trends and will not offend same.

Proportionality

I am also mindful of the need for proportionality and totality referred to in Pearce v The Queen (1998) 194 CLR 610. There is no general rule as to whether sentences should be served concurrently or cumulatively and I acknowledge that the issue is one of totality: Cahyadi v R (2007) 168 A Crim R 41.

Commencement Date

I have already referred to the time spent in prison. I calculate the commencement date to be 20 March 2017, agreed by both parties.

Standard Non-Parole Period

I am required, at least in relation to some of the charges, to have regard to the standard non-parole period which represents the non-parole period for an offence mid‑range after a jury trial, and I am required to impose the standard non-parole period unless I find otherwise, although I do note that you did plead guilty which separates you from the need to impose the standard non‑parole period.
For the purpose of s54B(3) the purpose of that section is to incorporate a full range of well‑established sentencing principles into the determination of reasons for departing from the specified standard non-parole period. Section 21A(1)(c) specifically requires the Court to take other subjective or objective factors which affect the relative seriousness of the offence into account, which I have done. Your guilty plea is a factor which mitigates in your favour against imposition of the standard non-parole period. Nevertheless, I have taken the standard non-parole periods, to the extent that they apply, into account in determining what is an appropriate sentence, as I have the other guideposts for sentencing, namely the maximum period of imprisonment.

Aggregate Sentence

I intend to impose an aggregate sentence, that is one single sentence in relation to all of these offences, pursuant to s53A of the Crimes (Sentencing Procedure) Act. I am first required at law to record the sentences which I would otherwise have imposed upon you in respect of each count on the Indictment.
I have discretion to aggregate sentences in certain cases; in my view this is one such case. Were I to impose the total indicative sentences on an accumulative basis the sentence would be crushing and excessive. It is in the interests of totality that I will permit, in my sentence, a reasonable degree of concurrency to ensure that your sentence is fair and reasonable.

Indicative Sentences

Before announcing those I note that the charge on the Form 1 attaches to Count 3 on the Indictment. Each of the indicative sentences have been discounted by 10% to reflect the guilty plea.
In respect of Count 1, being indecent assault of a child under the age of 16, being the rubbing of Emma’s vagina on the outside of her clothing on the first night of the camping trip, I provide an indicative sentence of three years. As a standard non-parole period exists I am required to provide an indicative non-parole period which is two years and three months.
In relation to Count 2, namely causing Emma to take diazepam in order for you to commit an indictable offence, I provide an indicative sentence of five years; I am not required to provide an indicative non-parole period.
In relation to Count 3, namely sexual intercourse without consent in circumstances of aggravation, that is, the digital penetration of Emma on the second night of the camping trip, and bearing in mind the matter on the Form 1, I impose an indicative sentence of six years and I am required to provide an indicative non-parole period given that a standard non-parole period applies. The indicative non-parole period for that offence is four years and six months, having regard also to the Form 1 matter.
In respect of Count 5, that is, produce child abuse material, being the photographs of Emma in the shower, I provide an indicative sentence of two years; there is no need to provide an indicative non-parole period.
In relation to Count 7, causing your daughter to take an intoxicating substance with the intent to commit an indictable offence I impose an indicative sentence of five years and there is no standard non-parole period which is applicable.
In relation to Count 8, the indecent assault of your daughter when you separated your daughter’s legs and grabbed her vagina on the outside of her underwear I impose an indicative sentence of three years and an indicative non-parole period of two years and three months.
In relation to Count 9 of produce child abuse material, being the video of you chasing your daughter around before grabbing her in the area of the vagina, I impose an indicative sentence of two years and I am not required to impose an indicative non-parole period.
In relation to Count 10 of produce child abuse material, being the four photographs of your daughter in the shower at her home, I impose an indicative sentence of three years; there is no applicable standard non-parole period.
In relation to Count 12, produce child abuse material, being the three photographs of your daughter lying on the bed strapped at her wrists and her ankles as well as having duct tape applied across her face from her nostrils to her chin, I impose an indicative sentence of three years; there is no indicative non-parole period required. I note that she was eight years of age when that occurred.
In coming to an aggregate sentence I have had close regard to the principles of totality as discussed in Pearce. Those principles require me, after having arrived at the indicative sentences in relation to each offence, to then stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the total criminality involved.
I have stepped back from this on a number of occasions since you were before me last and I am satisfied that the sentence to be imposed is appropriate and reasonable in the circumstances. The sentence which I will impose permits a degree of concurrency which the indicative sentences would otherwise not permit. Would you please stand, sir.

Pronouncement of Conviction and Sentence

You are convicted of the nine offences, namely:

Count 1 on the Indictment, being that on 14 January 2017 at the Central Coast of New South Wales you did assault Emma and at the time of such assault committed an act of indecency upon her, being a child under the age of 16, in breach of s61M(2) of the Crimes Act;

Count 2 on the Indictment, being that on or about 14 January 2017 at the Central Coast of New South Wales you caused Emma to take an intoxicating substance, namely diazepam, with your intent to commit an indictable offence, namely indecent assault, in breach of s38 of the Crimes Act;

Count 3 on the Indictment, being that on 15 January 2017 on the Central Coast of New South Wales you did have sexual intercourse with Emma without the consent of Emma, knowing that she was not consenting, in circumstances of aggravation, namely that at the time of the offence Emma was a person under the age of 16, just 13 years of age, in breach of s61J(1) of the Crimes Act;

Count 5 on the Indictment that between 1 June 2016 and 31 December 2016 in Northern Sydney in the State of New South Wales you did produce child abuse material in breach of s91H(2) of the Crimes Act;

Count 7 on the Indictment, being that on or about 14 January 2017 on the Central Coast of New South Wales you caused your daughter to take an intoxicating substance, namely diazepam, with your intent to commit an indictable offence, namely indecent assault, in contravention of s38 of the Crimes Act;

Count 8 on the Indictment, being that on 22 September 2016 at a suburb in Northern Sydney you did assault your daughter and at the time of such assault committed an act of indecency upon your daughter, a child at that time under the age of 16 years. This relates to the act of indecency that occurred in the course of you filming your daughter and grabbing her by the vagina and shouting “Instagram” and “catch the puss”, or whatever the words you used. You are convicted of that offence in breach of s61M(2) of the Crimes Act;

Count 9 on the Indictment, being that on 22 September 2016 in Northern Sydney in New South Wales you did produce child abuse material in breach of s91H(2) of the Crimes Act;

Count 10 on the Indictment, being that on 8 July 2016 at a suburb in Northern Sydney in New South Wales you did produce child abuse material in breach of s91H(2) of the Crimes Act; and

Count 12 on the Indictment, being that on 17 December 2011 at a suburb in Northern Sydney in New South Wales you did produce child abuse material in breach of s91H(2) of the Crimes Act and it is in respect of that count for which the complainant was eight years of age.

I impose upon you an aggregate sentence of 20 years commencing 20 March 2017 and expiring 19 March 2037. I impose a non-parole period of 15 years which will expire on 19 March 2032.
This means you have been sentenced to a term of imprisonment of 20 years. The non-parole period which I have set is the minimum time you must remain in prison. After that date, that is, 19 March 2032, you will be eligible for parole, but it will be a matter for the parole authority as to whether you get it, and during any period of parole you must be of good behaviour.

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Decision last updated: 28 August 2019

Medium Neutral Citation:	R v MR (a pseudonym) [2019] NSWDC 440
Hearing dates:	14 March 2019
Date of orders:	02 May 2019
Decision date:	02 May 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	At [177]
Catchwords:	CRIMINAL LAW – sentencing – aggravated indecent assault – aggravated sexual assault with a Form 1 – cause to take intoxicating substance – produce child abuse material – nine counts – questions of insight and remorse
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
Cases Cited:	Cahyadi v R (2007) 168 A Crim R 41 Minehan v R (2010) 201 A Crim R 243 Pearce v The Queen (1998) 194 CLR 610 R v BJW (2000) 112 A Crim R 1 R v Lulham (2016) 263 A Crim R 287 Re Attorney General’s Application (No 1 of 2002) (NSW) (2002) 56 NSWLR 146
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) MR (a pseudonym) (Offender)
Representation:	Counsel: Ms K Tennant (Crown) Mr A Radojev (Offender) Solicitors: ODPP (Crown) P Williams and Company Lawyers (Offender)
File Number(s):	2017/13664
Publication restriction:	Non-Publication Order of the name of the Offender who will be known as ‘MR’ and the complainants. The identity of the complainants will be further restricted by referring to them as Lucy and Emma.