R v Ms

[2016] NSWDC 65

District Court

New South Wales

Medium Neutral Citation:	R v MS [2016] NSWDC 65
Hearing dates:	15 April 2016
Decision date:	06 May 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For Orders see [85]
Catchwords:	Sentence; historic sexual offences; aggregate sentencing
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Clarkson v R (2011) VSCA 57 Eedens v R [2009] NSWCCA 254 GN v R [2012] NSWCCA 96 Ibbs v R (1987) 163 CLR 447 JM v R [2014] NSWCCA 297 McIntosh v R [2015] NSWCCA 184 McLaren v R [2012] NSWCCA 284 Mill v The Queen (1988) 166 CLR 59 MPB v R [2013] NSWCCA 213 MRW v R [2011] NSWCCA 260 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 R v BJW (2000) ACrimR 1 R v Cahyadi (2007) 168 A Crim R 41 R v Caldwell [2016] NSWCCA 55 R v Gavel [2014] NSWCCA 56 R v Hill (unreported) 7 July 1992 R v JCW (2000) 112 ACrimR 466 R v M [2002] NSWCCA 66 R v Moon [2000] NSWCCA 354 R v PGM (2008) 187 ACrimR 152 R v PGM [2008] NSWCCA 172 R v SLV (2003) 58 NSWLR 589 R v Van Ryn [2016] NSWCCA 1 RWB v R (2010) 202 ACrim R 209
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) MS (Offender)
Representation:	Counsel: L McSpedden (Crown Prosecutor) S Bouveng (Offender)
File Number(s):	13/107828
Publication restriction:	Non-Publication of Name of Complainant and Name of Accused

REMARKS ON SENTENCE

Introduction

1. The offender was found guilty of five counts on an Indictment following a trial which commenced at the District Court sitting at Queanbeyan on 9 June 2015. The verdicts were delivered on Friday 12 June 2015 in respect of the following Counts on the Indictment:

Count 1 – On or about 11 May 2002 at Cooma in the State of New South Wales, did assault LM a person then under the age of 10 years, namely, 8 years old, and at the time of such assault did commit an act of indecency on the said LM.

Count 2 – On or about 11 May 2002 at Cooma in the State of New South Wales, did have sexual intercourse with LM, who was at that time under the age of ten years, namely, 8 years.

Count 4 – Between 11 May 2002 and 31 October 2003 at Cooma in the State of New South Wales, did assault LM a person then under the age of 16 years, namely, 8, 9, or 10 years old, and at the time of such assault did commit an act of indecency on the said LM.

Count 5 – Between 1 January 2006 and 31 August 2007 at Cooma in the State of New South Wales, did assault LM a person then under the age of 16 years, namely, 12 or 13 years old, and at the time of such assault did commit an act of indecency on the said LM.

Count 6 – Between 1 January 2008 and 30 June 2008 at Cooma in the State of New South Wales, did assault LM a person then under the age of 16 years, namely, 14 years old, and at the time of such assault did commit an act of indecency on the said LM.

The Facts

2. A fair summary of the facts based on the evidence given at the trial on which the verdicts were delivered is as follows. In respect of Counts 1 & 2 on the Indictment, they occurred on 11 May 2002, the day before Mother’s Day, when the complainant, LM, who was then aged 8 years was staying at the home of the offender. The mother of the complainant and the offender were then in a relationship but were living in separate homes. The complainant and the offender has watched a video “Anastasia”, following which, the offender turned off the video and the lights and sat with the complainant in front of a wood fire. He then laid the complainant down in front of the fire and put his hand inside her pyjama pants and inside her underpants. He then rubbed the outside of the complainant’s vagina with his fingers for a few minutes. That was conduct that comprised Count 1 on the Indictment.

3. The offender used the fingers of one hand to hold open the opening of LM’s vagina. The offender then said to the complainant “Can you hold this open for me?”, referring to her vagina, then he inserted his finger of his right hand into her vagina. He continued to move his finger in and out of her vagina. When he removed his finger from LM’s vagina he said words to the effect, “Don’t tell anyone because it’s our little secret”. That was the conduct that comprised Count 2 in the Indictment.

4. In October 2003 the offender moved into the same house as the mother of the complainant. At a time before and after he moved in he would do gardening at those premises and take the garden refuge to the local tip. On occasions he took the complainant with him and on one such occasion, after going to the tip, he took her to his house. There he lay on a lounge and had the complainant lie on top of him. When she did that, he slid his hands down the back of her pants and inside her underwear and rubbed the cheeks of her bottom. That lasted for a period of 20 minutes. That was the conduct that comprised Count 4 on the Indictment.

5. After the Offender moved in with the complainant’s mother between 1 January 2006 and 31 August 2007, he called the complainant over to where he was sitting in an armchair in the lounge room to stand next to him and then put his hand up her skirt and inside her underwear. He moved his hand and fingers up and down on the outside of her vagina for approximately five minutes. That was the conduct that comprised Count 5 of the Indictment.

6. Between 1 January 2008 and 30 June 2008 at the same premises, the complainant was standing in the dining room one morning in her pyjamas. The offender came up behind her and put his hands down her pants, inside her underwear. He moved his hand and fingers backwards and forwards on the outside of her vagina for a couple of minutes. That was the conduct that comprised Count 6 in the Indictment.

Penalties

7. The following are the maximum penalties for each offence:

1. Count 1 on the Indictment was a breach of s 61M(2) of the Crimes Act 1900. The offence carries a maximum penalty of imprisonment for 10 years.

2. Count 2 is a breach of s 66A of Crimes Act 1900. The maximum penalty is a term of imprisonment for 25 years.

3. Count 4 is a breach of s 61M(1) of the Crimes Act 1900. The maximum penalty is a term of imprisonment of seven years.

4. Counts 5 and 6 also constitute breaches of s 61M(1) of the Crimes Act 1900 and also carrying a maximum penalty of imprisonment for seven years, and a standard non-parole period of five years.

Second Indictment

8. On 16 June 2015 the offender was found guilty following a trial which commenced at the District Court sitting at Queanbeyan on 11 June 2015 in respect of the following counts on the Indictment:

Count 2 – Between 1 November 2006 and 22 February 2007 at Cooma in the State of NSW did assault CM, a person then under the age of 16 years, namely 10 or 11 years old and at the time of such assault did commit an act of indecency on the said CM.

Count 3 – Between 1 November 2006 and 22 February 2007 at Cooma in the State of NSW did assault CM, a person then under the age of 16 years, namely 10 or 11 years old, and at the time of such assault did commit an act of indecency on the said CM.

The Facts

9. A fair summary of the facts based on the evidence given at the trial in which those two verdicts were delivered is as follows. On or about 16 January 2007 a comet known as the McNaught Comet crossed the skyline in southern Australia. The evidence established that on or about that night the complainant CM was in the back garden of premises where she lived with her mother, older sister and the offender. The offender was also present. The complainant was wearing summer pyjamas. The offender drew the presence of the comet in the sky to the complainant and called her over to sit on his lap to watch it. When she did that, he put his hand underneath her pyjama top and rubbed and grabbed her breasts. At the time she was 11 years of age and she had started to develop breasts. He continued to touch her breasts for approximately 5-10 minutes. That was the conduct comprising Count 2 on the Indictment.

10. After that, the complainant placed his hand down the pyjama pants of the complainant underneath her underpants. When he did so he rubbed the outside of her vagina for a couple of minutes. That was the conduct that comprised Count 3 on the Indictment.

Penalties

11. Both offences constitute a breach of s 61M(1) of the Crimes Act 1900. Each carries a maximum penalty of imprisonment of 7 years. Each offence has a standard non-parole period of five years.

The Sentence Hearing

12. The Crown tendered a Crown Sentence Summary (Ex A), which included the criminal history of the offender. That comprised, leaving aside minor misdemeanours, a PCA conviction on 15 August 1978 and a conviction for high range PCA on 12 January 1982.

13. Exhibit B was a pre-sentence report under the hand of Ms Peta Dean dated 19 August 2015. The author of that report noted that the offender adamantly denied the offences, and appeared to shift blame towards the victims. He was assessed as low risk of re-offending. Further, the report noted that on 10 August 2015 the offender was hospitalised following a stroke. Since his discharge from hospital, he has been incarcerated at the Long Bay Hospital. He was assessed as unsuitable for a Community Service Order.

14. Both complainants made Victim Impact Statements (Exs C and D). The statements were not read to the court and are referred to below.

15. The offender tendered a report by Patrick Sheehan, forensic psychologist dated 11 February 2016. Mr Sheehan interviewed the offender for two hours and set out his familial and educational background. Under the heading “Medical and Psychiatric History”, Mr Sheehan reported:

“10 MS reported no history of major mental illness. He has never experienced symptoms of psychosis, acute depression or anxiety. He has never been admitted into a psychiatric hospital. He has never seen mental health professionals. He described ongoing positive mood in custody despite hardships of adjusting to prison life.”

16. Mr Sheehan also described the stroke the offender suffered in August 2015, following which, testing revealed a moderate to large acute right basal ganglia haemorrhage, as well as acute renal impairment, urinary tract infection and malignant hypertension. A neuro-psychological assessment has subsequently revealed fluctuating and reduced tension, poor working memory and sequencing, slowed information processing, compromised visuospatial skills and a significant reduction in all aspects of high level thinking skills. The offender has limited insight into his condition.

17. Mr Sheehan was of the opinion that there was no compelling evidence to indicate the presence of a disorder of personality. The offender continued to deny involvement in any form of inappropriate sexual behaviour towards the victims, claiming, “It was all lies”. Custody has been onerous for him, given his poor health and his placement under a form of protective custody known as “limited association”.

18. According to Mr Sheehan, treatment options were limited. There is a “Deniers Program”, however, it is not consistently facilitated due to resource limitations and the offender would require a full examination of neuro-psychological functioning to determine the extent of his ability to participate meaningfully in programs which require insight.

19. Psychometric testing placed him in the extremely low range for cognitive ability, non-verbal/visual intellectual skill, and verbal intellectual skills were in the borderline range.

20. Mr Sheehan was of the opinion that the offender’s management in custody and transition to the community may require a multi-disciplinary case management approach, where his security, health and rehabilitation needs can be met. Professional support and supervision provided by Community Corrections Service will assist him in maximising his capacity for positive adjustment in the community.

21. A report from Dr Peter Ashkar, clinical neuro-psychologist, dated 6 April 2016, became Ex 2. Dr Ashkar also took a developmental and psycho-social history.

22. Neuro-psychological testing showed the offender’s premorbid level of intellectual/cognitive functioning was estimated to be at a “low average” level. His information processing involving attention and concentration speed were accessed at borderline and his intellectual functioning as “extremely low” overall. Dr Ashkar noted that the offender’s behaviour was mildly disinhibited, he was distractible and he had difficulty directing and focussing his attention.

23. The offender was now seven months post-stroke and further neurological recovery was possible, however, it plateaued at 12 months. Therefore, the offender’s behavioural and cognitive difficulties are likely to persist throughout his life. Dr Ashkar was of the opinion that the offender was unlikely to benefit from a Sex Offender Treatment Program, due to his behavioural and cognitive impairment. The offender had substantial medical needs relating to his heart disease and stroke that will need to be met during his incarceration. Dr Ashkar was of the opinion that although he was coping well with the structure and routine of the correctional setting, he will have considerable difficulty functioning in the community upon his release. Therefore, a period of Community Corrections supervision was strongly recommended. An occupational therapy assessment will also be important to support his daily functioning. Dr Ashkar noted his estimated low risk of sexual recidivism and low need for treatment from Mr Sheehan’s report.

24. Exhibit 3 was a letter from the offender’s mother, setting out his familial history, and the losses that the offender has suffered as a result of his convictions.

The Crown submissions

25. The Crown relied on a detailed written outline of submissions and submitted that the following factors were relevant to assessing the objective seriousness for an offence under s 66A of the Crimes Act 1900. The factors included:

1. How the offences took place.

2. Over what period.

3. With what degree of coercion.

4. Whether there was a use of threats of pressure.

5. Any immediate effect on the victims.

26. The Crown submitted that it was of considerable significance, when assessing the objective seriousness of indecent assaults against children, to consider the actual character of the assault, including the degree of physical contact involved, relying on R v PGM (2008) 187 ACrimR 152 at [31].

27. In respect of Count 1, the Crown submitted that the objective seriousness of the offending fell around the mid-range. In respect of Count 2, which involved digital penetration of the complainant, the Crown submitted that the objective seriousness fell below the mid-range of objective seriousness for such an offence.

28. The offending in Count 4 also fell below the mid-range of objective seriousness of an offence under s 61M(1).

29. Counts 5 and 6, both of which were offences pursuant to s 61M(1), constituted offending which fell within the mid-range of objective seriousness for such offences. I have noted that the standard non-parole period for those matters was five years. Applicable to Counts 5 and 6, involving LM, and Counts 2 and 3, involving CM, the Crown referred to s 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) as proscribing that the standard non-parole period is a matter to take into account as a legislative guidepost. Pursuant to s 54A(2), the standard non-parole period represents the non-parole period for an offence, taking into account only the objective factors effecting the relative seriousness of that offence, which is in the middle of the range of seriousness.

30. The Crown further submitted that the offender’s moral culpability was a matter to be taken into account. Since Muldrock v R (2011) 244 CLR 120, the assessment of the offender’s moral culpability has been treated as a distinct but important part of the sentencing exercise, relying on GN v R [2012] NSWCCA 96 at [12], and McLaren v R [2012] NSWCCA 284 at [28] – [29].

31. It was submitted that general deterrence should not be reduced in any way in the sentencing process here. There was nothing in the offender’s background to lessen his moral culpability for these offences. Whilst the report of Dr Ashkar noted that the offender’s premorbid level of intellectual/cognitive functioning was at least “low average”, that should not lessen the importance of general deterrence in respect of these offences. Neither should the stroke that the offender suffered whilst he has been incarcerated, although that has clearly reduced his intellectual functioning. It has no relevance to the assessment of his moral culpability for the offences.

32. The Crown submitted that the relevant aggravating factors to be taken into account pursuant to s 21A(2) of the Act were as follows:

“(eb) The offence was committed in the home of the victim or any other persons.

(g) The injury, emotional harm, loss or damage caused by the offence was substantial.

(k) The offender abused a position of trust or authority in relation to the victim.”

33. In respect of the second aggravating factor listed, the Crown relied on R v Gavel [2014] NSWCCA 56 at [110], where the court said in respect of harm caused by sexual abuse of a child:

“This court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature activity can do.”

34. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R (2011) VSCA 57. The Crown submitted that it was clear from the impact statements that substantial emotional harm had been suffered by the victims in this matter.

35. In respect of the third aggravating factor, the Crown submitted that breach of trust was not an element of the offence under 66A. It was acknowledged that a sentencing judge should be cautious in giving undue weight to an abuse of a position of trust where abuse of authority is an aggravating factor to avoid double counting, relying on MRW v R [2011] NSWCCA 260. Further, in family situations, a parent or step-parent exploits the authority they have over children and their power to discipline the child. In R v BJW (2000) ACrimR 1 at [20] – [21], Sheller JA stated:

“A child aged 13 or younger is virtually helpless in the family unit when sexually abused by a step-parent. All too often the child is afraid to inform upon the step-parent; see generally R v Bamford (unreported) CCA 23 July 1991 per Lee CJ at CL at [5]. The younger the victim the more serious is the criminality; see R v PWH (unreported) CCA, 20 February 1992.”

36. The Crown submitted that offences involving a number of victims or a large number of instances occurring over a long period of time involve a very high degree of criminality, referring to R v Hill (unreported) 7 July 1992 NSWCCA. It was submitted that condign punishment is called for when grave and repeated sexual assaults are perpetrated upon young children, particularly by a person in a position of trust and authority, relying on R v JCW (2000) 112 ACrimR 466 per Spiegelman CJ at [121].

37. The offender here fulfilled the role of step-father to both victims over a period of some time. They were both young and vulnerable and it was submitted that the breach of trust involved was at the highest end. In those circumstances, the court should regard it as a significant aggravating factor.

38. The Crown also referred to the following mitigating factors that the court may be asked to take into account, based on the expert reports, pursuant to s 21A(3):

“(g) The offender is unlikely to re-offend.

(h) The offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise.

(i) The remorse shown by the offender for the offence, and

(f) The offender was a person of good character.”

39. In respect of character, the Crown relied on R v PGM [2008] NSWCCA 172, where Fullerton J considered that where there is a pattern of re-offending over an extended period in the course of an ongoing relationship fostered for the commission of the offence,

“a finding that the criminal conduct is out of character fails to recognise that a determined and conscious course of offending … diminishes the mitigating impact of a finding of good character.”; at [44].

40. It was submitted that the assessment of the offender’s risk of reoffending, where a lengthy sentence is imposed, is necessarily imprecise. Findings as to future dangerousness and the likelihood of reoffending do not need to be established beyond reasonable doubt, relying on R v SLV (2003) 58 NSWLR 589.

41. Here, the Crown submitted that there should be genuine concerns regarding any assessment of good prospects of rehabilitation, given that the offender continued to deny the offences, and that he was unlikely to undertake any rehabilitative programs whilst in custody.

42. It was further submitted that the offender had shown no remorse for his criminal conduct, nor had he accepted responsibility for his actions or acknowledged any injury caused by them.

43. In respect of the offender’s ill health, the Crown submitted that ill health would be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his or her state of health, or where there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health. It was submitted that there was nothing in the reports to suggest that the offender will suffer hardship or not have his medical needs met whilst in custody.

44. Further, the fact that the offender would be in protective custody could only be taken into account in mitigation in the determination of the sentence, or finding of special circumstances where there is evidence that the conditions of imprisonment will be more onerous, relying on RWB v R (2010) 202 ACrim R 209 at [192] – [195].

45. Finally, it was submitted that there should be accumulation of sentences here where there were multiple victims. Acknowledgement should be made of the harm done to each victim, which would require at least partial accumulation of the sentences. The Crown further submitted that the charges for which the offender had been convicted are representative of a course of conduct in respect of both victims over a number of years. Evidence of this was admissible not to increase an otherwise proper sentence, but only to rebut any suggestion that the charged misconduct was isolated or out of character.

46. In oral submissions, the Crown submitted that the offender’s degree of cognitive impairment was not sufficient in itself to base a finding of special circumstances pursuant to s 44 of the Act. It was submitted that his cognitive difficulties meant that he could not participate in any rehabilitation programs in any event.

47. The Crown also relied on statistics published by the Judicial Commission of New South Wales in respect of offences under ss 66A and 61M(2).

Submissions on behalf of the offender

48. Learned counsel for the offender also relied on a detailed written outline of submissions. It set out the principles relating to the purposes of sentencing and the judicial discretion involved in that process. Those principles are accepted.

49. Counsel for the offender accepted that aggravating factors pursuant to s 21A(2) of the Act were that the offences were committed in the home of the victims, or any other person, (s 21A(2) (eb)), and further, that the offender abused a position of trust or authority (s 21A(2)(k)).

50. In respect of sentencing principles relating to historical sex offences, learned counsel referred to the tension between the judgments of Howie J in R v Moon [2000] NSWCCA 354, and that of Basten JA in MPB v R [2013] NSWCCA 213 at [34]. It was submitted that the court would fall into error by slavishly following either judgment.

51. Counsel conceded that there should be some level of accumulation in respect of the sentences given that there were two complainants. However, since the offending, which occurred prior to 2003, Parliament had increased dramatically the maximum penalties involved, for example, in respect of s 66A, there was now a maximum term of imprisonment of 25 years, and standard non-parole period of 15 years.

52. In respect of the objective seriousness of the offending here, it was submitted that Count 4, in respect of LM, and Count 2 in respect of CM, will be regarded as at the low end of the objective seriousness of the offending for offences under s 61M(1). Of the remaining Counts, the objective seriousness of the offending should be recognised as below the mid-range of objective seriousness for such offending. In respect of Count 2, in respect of LM, namely, the offence pursuant to s 66A, such offending could relate to a person of any age under 10 years. At the time of the offending here, LM was eight years of age and therefore it was submitted that she was “right near the top of the age group” for such an offence. The court would have regard to the High Court’s decision in Ibbs v R (1987) 163 CLR 447 at pp 451-452.

53. Here, the form of sexual intercourse was digital penetration. That was a matter to be taken into account, and the offender relied on R v Gavel, supra, where at [97] the court said:

“It was appropriate for the sentencing judge to have regard to the form of sexual intercourse which occurred in this case in considering the s 66A(2) offences. There was no act of penile intercourse on the part of the respondent. There was digital penetration and cunnilingus (on two occasions). It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question:- Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33] – [34].”

54. It was submitted that the court should also take into account the age of the victims, and in respect of the s 61M(1) and (2) offences, where the victims were touched, for how long, whether clothes were removed and whether the victims ever saw the penis of the accused or were asked to touch it. Further, the duration of the offending was relevant.

55. R v Gavel, supra, was also relevant to the approach the court should take to the relevance of the Victim Impact Statements. The high maximum penalty and standard non-parole periods for sexual offences such as s 66A(2) crimes, reflects the harm that is caused by this type of offending, and the Court of Appeal has cautioned the danger of double counting with respect to sexual offences and the aggravating factor of substantial harm contained in s 21A(2)(g). This was the only aggravating factor with which the offender disagreed with the Crown case.

56. The offender also submitted that the mitigating factors set out by the Crown were available. Although good character had limited effect here, pursuant to s 21A(5), it was submitted that the offender was unlikely to reoffend. He would be well into his sixties upon release and his health was likely to be impaired for the rest of his life. Further, his previous criminal history could be disregarded as it occurred many years ago and was of a different type of offending.

57. Counsel also noted that the statistics issued by the Judicial Commission were of limited utility in the sentencing process here. Counsel proffered two cases as examples of sentencing principles being applied at the time these offences occurred. The two authorities were R v M [2002] NSWCCA 66, and Eedens v R [2009] NSWCCA 254.

58. It was common ground that any custodial sentence should commence on 9 June 2015.

59. The offender submitted that the court should take into account as subjective factors being relevant to sentencing, the stroke that the offender suffered in August 2015, and the cognitive deficits since identified. It was noted that the greatest gains made in the first six to 12 months following such an event, and that as the offender was now seven months post event, his condition may well plateau in the next four months. It was possible the offender could spend the rest of his sentence in the Long Bay Hospital, otherwise he would be in protective custody or limited association.

60. The fact of the offender’s cognitive impairment could be taken into account in determining whether special circumstances should be found so as to vary the usual ratio between head sentence and non-parole period.

61. It was submitted that specific deterrence was also affected by the impairment now suffered by the offender, which may also be taken into account in respect of general deterrence.

62. Counsel submitted that principles of totality were relevant, particularly where the court imposed an aggregate sentence pursuant to s 53A of the Act. Special circumstances should be found here for the following reasons:

1. It was his first time in custody.

2. When he is released he will require extra supervision to reintegrate into the community.

3. His stroke will make his time in custody more onerous.

Determination

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

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

64. Dealing first with Count 2 of the offences concerning LM, which conduct concerned digital penetration of LM’s vagina, I accept the Crown’s submission that the objective seriousness of the offending fell below the mid-range of objective seriousness for such an offence. However, it was still offending of a most serious kind, and I will have regard to the maximum penalty of a term of imprisonment of 25 years as a guidepost in the sentencing process for that offence.

65. With respect to Count 1 in that Indictment, I accept the Crown’s submission that the objective seriousness of the offending fell “around the mid-range”, however, I am of the view that it was just below the mid-range of objective seriousness for an offence pursuant to s 61M(2).

66. The offending in respect of Count 4 of that Indictment also fell below the mid‑range of objective seriousness of an offence pursuant to s 61M(1), and I accept the Crown’s submission to that effect.

67. In respect of Counts 5 and 6 on that Indictment, I do not accept that the offending constituted offending within the mid-range of objective seriousness for offending pursuant to s 61M(1). Rather, both offences took place over a very short period of time, with no apparent degree of coercion or use of threats. However, in each case, I take into account the maximum sentence of 7 years imprisonment, together with the standard non-parole period of 5 years as guideposts in the sentencing process. In each case I have taken into account the character of the assault in coming to my view on the objective seriousness of the offending.

68. I accept the Crown’s submission that the relevant aggravating factors to be taken into account pursuant to s 21A(2) of the Act, were as follows:

“(eb) The offence was committed in the home of the victim, or any other persons.

(g) The injury, emotional harm, loss or damage caused by the offence was substantial and;

(k) The offender abused a position of trust or authority in relation to the victim.”

69. In terms of the harm caused to the victim, in respect of these offences, I accept the deleterious effect upon LM as set out in her Victim Impact Statement (Ex C), and of course the long term and serious harm, both physical and psychological, materialising generally from child sex offences.

70. With respect to the third aggravating factor, namely, that the offender abused a position of trust or authority in relation to the victim, I note that, at the time of the offending, the offender was in the role of step-father to each of the victims, and that the offences occurred over a long period of time. LM was eight years of age at the time of the offending in Counts 1 and 2, she was nine or ten years of age at the time of the offence in Count 4, twelve years of age at the time of the offending in Count 5, and 14 years old at the time of the offending in Count 6.

71. I have also taken into account the following mitigating factors pursuant to s 21A(3):

“(g) This offender is unlikely to reoffend.

(h) The offender was a person of good character.”

72. In respect to the latter, I have discounted the PCA offences for which the offender was convicted. I further acknowledge that good character in the present circumstances has limited effected, particularly where the offending occurred over such a long period of time, as in the present circumstances, relying on R v PGM, supra.

73. In respect of the offences the subject of the second Indictment, being Counts 2 and 3, each of the offences pursuant to s 61M(1), were below the mid‑range of objective seriousness for such offences. In respect of each offence, the offending conduct was of very short duration, and the conduct involved could be characterised as being at the lower end of the range of objective seriousness for such offences.

74. General deterrence is clearly important in the sentencing process here, however, specific deterrence is somewhat diminished by the stroke suffered by the offender in August 2015, which has left him with significant cognitive deficits.

75. I have also had regard to the Victims Impact Statement of CM (Ex D), and the impact that these offences have had on her physical and emotional state. I note that there is no medical evidence against which to assess the victim impact statements, however, it is a matter of common sense that the offences have had a substantial impact on both victims. I have therefore taken the victims’ impact statements into account, but I make it clear that I have done so not to aggravate the offender’s culpability.

76. I have also had regard to the principle of proportionality and totality referred to in Pearce v R (1998) 194 CLR 610 at [45]. 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; see R v Cahyadi (2007) 168 A Crim R 41, and R v Caldwell [2016] NSWCCA 55. I also acknowledge that since these offences, Parliament has increased substantially the maximum terms for child sex offences generally, and has stipulated lengthy standard non-parole periods for some offences, for example, S 66A.

77. I have taken into account the offender’s subjective features, and in particular, his ongoing physical and cognitive deficits following upon his stroke. I accept that he will require extra supervision to reintegrate into the community, and having regard to the medical evidence, I find special circumstances are established pursuant to s 44(2). He will endure some hardship in serving his sentence due to his medical condition, and will require significant supervision upon his release.

78. This is an appropriate case to impose an aggregate sentence pursuant to s 53A of the Act. Sections 53 and 53A provide as follows:

“S 53 Multiple sentences of imprisonment

(1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence.

(2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

S 53A Aggregate sentences of imprisonment

(1) A court may in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following:

(a) The fact that an aggregate sentence is being imposed,

(b) The sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

(3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

(5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.”

79. I note that any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour – see Mill v The Queen (1988) 166 CLR 59 at [63]. In R v Van Ryn [2016] NSWCCA 1, the court had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

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

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

(See also R v Caldwell, supra, at [55])

81. The Court is required to indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process – see McIntosh v R [2015] NSWCCA 184 at [135]. It is clear that in indicating the sentences, there is no requirement to specify non-parole periods unless the offence is one for which a standard non-parole period is prescribed – see McIntosh v R, supra at [142], JM v R [2014] NSWCCA 297 at [8].

82. The indicative sentences that I would have imposed for each offence are as follows:

On the first Indictment:

1. Count 1 – offence pursuant to s 61M(2) – Indicative sentence of 3 years imprisonment.

2. Count 2 – offence pursuant to s 66A – Indicative sentence of 6 years imprisonment.

3. Count 4 – offence pursuant to s 61M(1) – Indicative sentence of 2 years imprisonment.

4. Count 5 – offence pursuant to s 61M(1) – Indicative sentence of 3 years imprisonment and a non-parole period of 2 years and 3 months.

5. Count 6 – offence pursuant to s 61M(1) – Indicative sentence of 2 years imprisonment and a non-parole period of 18 months.

On the Second Indictment:

6. Count 2 – offence pursuant to s 61M(1) – Indicative sentence of 2 years imprisonment and a non-parole period of 18 months.

7. Count 3 – offence pursuant to s 61M(1) – Indicative sentence of 2 years and 4 months imprisonment and a non-parole period of 1 year and 9 months.

83. It is clear that in an aggregate sentence, the outcome must involve some accumulation of the sentences and also reflect the totality of the criminal conduct, taking into account the statutory aggravating and mitigating features, and also the subjective features outlined above. Having regard to all of those matters here, I intend to sentence the offender to a total sentence of 8 years imprisonment, and impose a non-parole period of 5 years, to take effect from 9 June 2015.

Orders

84. I make the following orders:

1. In respect of the first Indictment, you are convicted of the following offences:

Count 1 – offence pursuant to s 61M(2) of the Crimes Act

Count 2 – offence pursuant to s 66A of the Crimes Act

Count 4 – offence pursuant to s 61M(1) of the Crimes Act

Count 5 - offence pursuant to s 61M(1) of the Crimes Act

Count 6 – offence pursuant to s 61M(1) of the Crimes Act.

2. In respect of the second Indictment, you are convicted of the following offences:

Count 2 – offence pursuant to s 61M(1) of the Crimes Act

Count 3 – offence pursuant to s 61M(1) of the Crimes Act.

3. In respect of all of those offences, I sentence you pursuant to s 53A of the CSPA 1999 to an aggregate sentence, noting the indicative sentences I have set out above.

4. I sentence you to a non-parole period of 5 years, commencing on 9 June 2015 and expiring on 8 June 2020.

5. I sentence you to a further term of imprisonment of 3 years, commencing on 9 June 2020 and expiring on 8 June 2023.

6. The total term of imprisonment will be 8 years imprisonment.

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

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Decision last updated: 10 May 2016