R v Mullins

Case •

[2024] NSWDC 672

•

03 October 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Mullins [2024] NSWDC 672
Hearing dates: 30 August 2024
Date of orders: 3 October 2024
Decision date: 03 October 2024
Jurisdiction:Criminal
Before: Sutherland SC DCJ
Decision:

Head sentence of 10 years with a non-parole period of 6 years and 6 months, at [159] – [162].

Catchwords:

SENTENCING — Child sex offences, 11 counts — Sentence following jury trial — Elderly offender — Offences committed by offender between his late 60s to early 80s — Two complainants — No contrition or remorse for offences to which offender pleaded Not Guilty at trial — No prior criminal history — Abuse of position of trust between complainants and offender — Element of grooming — Offender paid one complainant for sexual acts — Offender provided other complainant with gifts — Significance of general deterrence for child sexual abuse offences.

Legislation Cited:

Crimes Act 1900 (NSW), ss 61M, 61N, 66A, 66C, 66DD

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited: Anastasiou v R [2010] NSWCCA 100
GAT v R [2007] NSWCCA 208
GS v R [2016] NSWCCA 266
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Antin (a pseudonym) (No 2) [2021] NSWDC 584
R v BJW (2000) 112 A Crim R 1; [2000] NSWCCA 60
R v Fisher (1989) 40 A Crim R 442
R v MJ [2023] NSWCCA 306
R v MJR (2002) 54 NSWLR 368; [2002] NSWCCA 129
R v PGM (2008) 187 A Crim R 152; [2008] NSWCCA 172
R v Thomas [2007] NSWCCA 269
Scrimshaw (a pseudonym) v R [2021] NSWCCA 81
Category:Sentence
Parties: Rex (Crown)
Brian Audley Mullins (Offender)
Representation:

Counsel:
F Vella (Crown)
D Stewart (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Ross Hill & Associate Solicitors (Offender)
File Number(s): 2022/00140921
Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants in accordance with section 578A of the Crimes Act 1900 and section 15A(1) of the Children (Criminal Proceedings) Act 1987.

JUDGMENT

  1. My oral Remarks on Sentence with respect to the child victims of the offenders' sexual abuse will refer to each of the complainants on occasion by name. There is, however, a statutory prohibition against the publication of any of the names of the victims or of material tending to identify them pursuant to section 578A of the Crimes Act 1900. Accordingly, my published Remarks will include redactions where necessary. References in this judgment to victim or complainant is used interchangeably.

  2. The offender, Brian Audley Mullins, appears for sentence in respect of 11 offences committed against two female children who were then under the age of 16 years. The offences occurred some 18 years ago in 2006 with respect to the first victim who was 8 years of age at the time. The offender was 68 at the time of that offending. The more recent offending occurred with the second victim aged 10 and 11 years of age between 2017 and 2019 when the offender was aged between approximately 79 and 81 years of age.

  3. The offender entered pleas of Guilty to three of the 12 counts on indictment on 21 September 2023 at the pre-recorded hearing and again on the first day of the trial proper on 11 June 2024. He was convicted of the remaining 8 counts on the indictment as a result of a jury trial on 24 June 2024. A verdict in relation to an alternative count was not required.

  4. Counts 1 and 4 relate to the first victim, and are offences of indecent assault against a child under 10. These have been charged pursuant to section 61M(2) of the Crimes Act 1900 as it was at the time and carry a maximum penalty of 10 years imprisonment with a standard non-parole period of 5 years.

  5. Count 2 against the same complainant is an offence of sexual intercourse with a person under the age of 10 years and contravenes section 66A of the Crimes Act 1900, and carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 15 years.

  6. Counts 5 and 7 are offences of indecent assault against a child under 16 years of age. The maximum penalty of 10 years imprisonment applies but an increased standard non-parole period is specified of 8 years.

  7. Counts 6, 8, 9 and 10 are offences of having sexual intercourse with a person between the ages of 10 and 14, and have been charged pursuant to section 66C(1) of the Crimes Act 1900. Each offence under section 66C(1) carries a maximum penalty of 16 years imprisonment with a standard non-parole period of 7 years.

  8. Count 11 is an offence of inciting a person under 16 to commit an act of indecency and contravenes section 61N(1) of the Crimes Act1900. This carries a maximum penalty of 2 years imprisonment.

  9. Count 12 is an offence of intentionally doing a sexual act with a child over 10 years and under 16 years in contravention of section 66DD(a) of the Crimes Act 1900 and carries a maximum penalty of 2 years imprisonment.

  10. The maximum penalties prescribed with respect to the various different offences operate as a guide or yardstick in the determination of an appropriate sentence.

FACTUAL BACKGROUND

  1. The first four counts in the indictment allege three different acts of sexual assault by the offender against a then 8-year-old girl. The complainant, who was born in [redacted] 1997, was the daughter of a man who had been a friend of the offender for a number of years. The offender had been a volunteer manager for the Telstra Museum in Ashfield, Sydney and had struck up a friendship with the complainant’s father [redacted]. They [redacted] subsequently stayed in contact with each other on a regular basis.

  2. In June 2006, the offender was approximately 68 years of age. At that time, the first complainant lived with her mother and father and three brothers at their home in [redacted], Victoria.

  3. The complainant’s father, [redacted] and had a work trip to Sydney. It was around the time of [his] birthday and he brought on the trip to Sydney his eldest son and his daughter, the first complainant, who was 8 years of age at the time. After staying overnight at a motel en route from Melbourne to Sydney, they arrived at the offender, Brian Mullins’ home in Sydney. It was intended that they would stay with Mr Mullins for a few days.

  4. This was the first occasion that the complainant met the offender. She described the layout of the house and described the three members of her family as all being very sick with the flu. The offender gave up his own bedroom for [the complainant’s father] and the complainant to sleep in that room which had a Queen-sized waterbed.

  5. The complainant’s older brother stayed in the bedroom immediately next to the main bedroom while the offender stayed in the third bedroom in the house. On the first night that they arrived, the complainant described the aim was just to get to bed.

  6. She described having gone to the bathroom for a shower and that after she got out of the shower, the offender had entered into the bathroom while she was naked except for a towel around her shoulders. The offender asked her if she needed help drying and she told him: “No I don’t, I can do it myself.” She described heading past the offender and into the hallway intending to walk down to the bedroom that she was sharing with her father. She described the offender standing in front of her and blocking her path. He had a towel in his hands and was also holding her pyjamas which she had left on the floor in the bathroom.

  7. Ignoring the response from the complainant, he started drying her at the top of her shoulders and then going down her arms. The complainant said she was “frozen”. She described the offender drying her back and chest and then up and down her legs. She said she felt “very sick in the stomach”. She described that: “He dried my bum, and then ended up drying my vagina last.” She said she felt his hands under the towel and said: “it was painful… the fabric was very rough.” She described him wiping the inside of her vagina with the towel for 3 or 4 wipes. She said she didn’t say anything and that she was “frozen in fear.”

  8. When he had finished drying her, he helped her put her underpants on. She described that as he was “putting the undies up” she felt the back of his bare hand graze her vagina. She described that that was his hand touching her skin.

  9. These acts form the basis for the first four counts in the indictment. Count 1 related to the use of the towel to rub the victim’s bottom. It led to the indecent assault with the victim under the age of 10 years, contrary to the provisions of section 61M(2) of the Crimes Act 1900. As noted earlier, it carries a relevant maximum penalty of 10 years imprisonment and a standard non-parole period of 5 years.

  10. The second count in the indictment related to the use of the towel to rub or wipe the inside of the victim’s vagina. This count alleged sexual intercourse with a person under the age of 10 years. It contravenes section 66A of the Crimes Act 1900 and carries a maximum penalty of 25 years imprisonment. There is a standard non-parole period of 15 years imprisonment.

  11. The third count in the indictment had been pleaded as an alternative to the second count and alleged an act of indecency. This alternative count would have been available to the jury in the event that they had not been satisfied of penetration of the vagina which was a fundamental element with respect to count 2 of sexual intercourse. In light of the jury’s verdict of Guilty on count 2, count 3 is no longer relevant.

  12. Count 4 related to the intentional touching of the victim’s vagina with the back of the offender’s hand. The jury similarly returned a verdict of Guilty with respect to that count, namely an assault with an act of indecency on a person under the age of 10. It also was a contravention of section 61M(2) of the Crimes Act 1900.

  13. After committing those acts, each of which I am satisfied occurred in the fashion and manner described by the victim, the offender helped the victim to put her pyjamas back on. She then walked to the bedroom that she was sharing with her father where she started crying. She eventually fell asleep.

  14. She described staying at the offender’s house for about two or three days. She told of him giving her a gift of a CD recording of the Black Eyed Peas which she found strange because he did not give her older brother anything.

  15. Subsequently, there were multiple occasions when the offender stayed at the [complainant’s] family residence in Victoria. She recalled an occasion of seeing him in Canberra when they had travelled to the national capital for her father’s work in around 2011.

  16. The victim described having had three school friends stay at her house in 2009 when she was in grade 6. She described warning those three girls about the offender, who was also staying at her house at the time, that “he wasn’t a good person and to just stay away.” She described that when she was about 14 in 2011, the offender had quietly told her, out of earshot of others, that her haircut “makes you look very sexy.”

  17. She also gave evidence of a particular occasion when she was playing games on a laptop computer at her home and the offender had come up behind her and started rubbing her neck and shoulders. She recalled him kissing her head and her hair. She said that she remained silent and had a sick, nervous and anxious reaction similar to how she had felt in the bathroom incident.

  18. The victim said that she did tell her parents when she was a teenager that she didn’t like Brian. She told them about what he had said about looking sexy with her new haircut. She said she made it very clear to her parents that she did not like him coming around to their home. She said that her parents would then give her a “heads-up” if he was coming over so that she could go and stay at a friend’s house or she could have a friend stay with her. She described sleeping with a butter knife under her pillow just because it felt safe.

  19. She described the offender sending birthday gifts to her and her brothers. However, she said the gifts she received were always worth a significant amount more in either cash or gift cards than the gifts he gave to her brothers.

  20. She described the first person she told about the incident in the offender’s bathroom was a friend when they were both about 18 years of age. She said that she told her female friend a watered-down version of what had occurred. She said she told her about him drying her but did not tell her about the detail of the touching. She said she did not tell the whole story because she was very embarrassed.

  21. She identified the next person she told as being her brother’s fiancé. She subsequently told her parents and some months later, spoke to the Detective to whom she made a statement.

  22. The circumstances of her telling her parents arose in about May 2022, when her father became aware that the offender had been arrested with respect to the second complainant. Her father had asked the first complainant if Mullins had done anything to her. She said that she initially shook her head indicating “No”, but then very quickly said “Yes”. She said that she was still very embarrassed and felt a lot of shame and gave her parents a very watered-down version of what had happened. She said the person to whom she told the severity and detail of what had occurred was Detective Davies.

  23. I am satisfied, beyond reasonable doubt, and consistent with the verdicts of the jury, that the evidence given by the first complainant was both accurate and reliable.

  24. The remaining eight counts in the indictment all related to acts of sexual assault committed by the offender upon a second complainant. The complainant, established to be a victim by the verdicts of the jury, was a neighbour of the offender and lived near to his address in [redacted]. All of the offending conduct occurred during a period of approximately 16 months between November 2017 and March 2019. The victim turned 10 and then 11 years of age during that period.

  25. The complainant described having first met the offender when she was about 10 years of age. She described herself as being an entrepreneur and said that she loved making money. She said she had made some “stress balls” and would sell them for $3 at cafes further down the street to where she lived and where the offender lived. She described her own house being around the corner from where the offender lived. He had initially asked her if she did 10 cent refund bottles and started giving her empty bottles to help her get some pocket money. She described the offender bringing home empty refund bottles from his work and giving them to her.

  26. After a couple of weeks, she described going to get the refund bottles which were normally in his driveway. On this occasion they were not there, so she walked around into his backyard, where she saw him naked. He asked her if she wanted to make some extra money and she said: “Yes, of course.” She explained that that was because she and her family were “really tight for money back then.”

  27. The complainant described that by selling the stress balls she made and cashing in the 10c refund bottles, she was going home with roughly $50 per day. She said that she would buy pizza down the road and that she felt really responsible and that she was doing something for her family.

  28. Against that background, she said that she was interested in making extra money when asked by the offender.

  29. She described him asking her to walk into his house and then to take her clothes off. He said: “Just take your clothes off and then you can put them straight back on.” She said she took her clothes off and then did put them straight back on. He gave her some money and told her to come back the next day.

  30. The following day he did not ask her to take her clothes off. She described them ending up as friends. At that time she could not talk to her mother or anyone else and she did not have any friends at school. She said that he posed as her friend and would invite her in for biscuits and give her “food and stuff”.

  31. This first instance of being asked to take off her clothes and being paid for doing so was the basis for Count 5 in the indictment. The act was charged as an assault with an act of indecency on a person under the age of 16 years contrary to the provisions of section 61M(2) of the Crimes Act 1900. That section had been amended between 2007 when it related to victims under the age of 10. In 2017 and the years following, it related to victims under 16 years and carried an increased standard non-parole period of 8 years.

  32. The victim described the offender as being a nudist. She said he always walked around his house naked. She said that she had been promised and then given $5 on the first occasion that she had taken her clothes off.

  33. The victim described that after they became friends, she would visit the offender every day, but not on every weekend. I note that in the course of cross-examination, the proposition that she visited him every weekday was challenged. I accept that she called in to see the offender at his house very regularly. She would call in to see the offender at his home on her way home from school. In due course, he offered her money if she would let him touch her on her underwear area. She said that she would touch him in the same place.

  34. In the course of describing what occurred, the complainant initially said: “His fingers never went in. He’d just, on the outside… I’m pretty sure.” However in the course of further describing what had occurred, her recollection changed and she said: “I think he did put his fingers inside of me. But he’d always complain about how tight I was.” She said that the offender would say: “I’m too tight and that I should try to loosen up my vagina.”

  35. She said that she was naked at the time and that he would have offered her money to take her clothes off. She said that he played compact discs of porn depicting people having sex. The incident of his fingers being inserted into her vagina constituted the allegation in count 6 of sexual intercourse with a victim above the age of 10 and under the age of 14 years. Such an offence contravened section 66C(1) of the Crimes Act 1900 and carries a maximum penalty of 16 years imprisonment with a standard non-parole period of 7 years.

  36. The victim described being asked to give the offender a hand job. She described using her hand to go up and down on his penis. This formed the basis for count 7, namely an indecent assault on a person under the age of 16, again contrary to the provisions of section 61M(2) of the Crimes Act 1900.

  37. She then described being asked to suck his penis. She described remembering phrases that he would say such as “no teeth” and “good girl” while her mouth was sucking his penis. This described occurrence constituted Count 8, namely sexual intercourse with a person over 10 years of age and under 14, contrary to the provisions of section 66C(1) of the Crimes Act 1900.

  38. Upon arraignment at the commencement of the trial, the offender pleaded Guilty to this particular count. It will, accordingly, attract a 5% discount on an otherwise appropriate sentence.

  39. The victim then described a third incident in which the offender licked her vagina and also got her to suck his penis while they were in a “69” position. She described the detail of how they were lying on his bed with him lying on his back and her straddling him with her legs on each side of his head while she sucked his penis and he licked her vagina.

  40. With respect to these actions, Count 9 related to the act of cunnilingus. The accused’s account before the jury denied this particular incident. The jury’s verdict demonstrated acceptance beyond reasonable doubt of the victim’s account, which I similarly accept.

  41. With respect to the act of fellatio whilst in the described position, this formed the basis for Count 10 which again was a count of sexual intercourse with a person between the ages of 10 and 14 years.

  1. As with the earlier incident of fellatio, the offender pleaded Guilty upon arraignment before the jury. That count will similarly attract a 5% discount on sentence.

  2. The fourth incident described by the victim related to an incident colloquially described as a “Golden Shower”. The victim described being repeatedly asked to stand over the offender and “pee” on him. After refusing to do so for a couple of weeks, she described finally giving in and urinating on the offender while he lay down on the bathroom floor.

  3. This act was charged as an offence of inciting a person under 16 years of age to commit an act of indecency with the offender, contrary to the provisions of section 61N(1) of the Crimes Act 1900. This offence carries a maximum penalty of 2 years imprisonment. There is no standard non-parole period. The offender pleaded Guilty upon arraignment to this count and accordingly will be entitled to a 5% discount.

  4. The last charged incident was an occasion on which the offender masturbated himself in front of the victim and ejaculated into his other hand. The offender said that he had done that just to show her what semen looked like.

  5. That act was charged as the carrying out of a sexual act towards a child between the ages of 10 and 16. Such an offence contravenes section 66DD(a) of the Crimes Act 1900 and carries a maximum penalty of 2 years imprisonment. There is no standard non-parole period.

  6. Accordingly, the offender now appears for sentence with respect to three counts in relation to the first victim and eight counts with respect to the second victim.

  7. The second complainant also gave contextual and tendency evidence of the regular occurrence of various of the sexual acts that she had described. She said that sexual acts happened basically every weekday. The offender would regularly touch her vagina, sometimes on the inside and sometimes on the outside of her clothing. She also described acts of fellatio and what she described as a hand job on a regular basis.

  8. She had first told a male friend of hers about what had happened but did not describe the detail. She said they were telling each other a bunch of secrets. While she didn’t describe the details, she told him she had been sexually assaulted by her neighbour when she was younger. She said that she did not elaborate on the detail because she was still under the presumption that it was her fault because she had been accepting money which he had offered to her. She described another occasion having been hysterically crying in her room when her brother had walked in, who then went and told her mother. She then finally told her mother who asked her if she wanted to go to the police.

  9. She described her mother having been on drugs at the times that her mother had previously met the offender. She described the offending conduct as having stopped on an occasion when she had gone to a [redacted] Camp when she was 11 or 12.

  10. The second victim made a statement to police in 2022. The offender was arrested and charged with respect to sexual offending against her at that time.

  11. As I have already indicated, the first complainant in time had not told her parents up until that time, nor had she made any complaints to police. After her father heard of the offender’s arrest, the first complainant was spoken to and in due course provided a statement to police.

OBJECTIVE SERIOUSNESS

  1. In assessing the objective seriousness of sexual offences committed against children, it is important to give consideration to the nature and character of the assault, including the degree of physical contact which is involved: see GAT v R [2007] NSWCCA 208 at [22]; R v PGM [2008] NSWCCA 172 at [31].

  2. The abhorrence with which the community regards the sexual abuse of children and the significant importance of general deterrence in sentencing child sex offenders has been repeatedly stated and is reflected in a very large number of appellate judgments of the NSW Court of Criminal Appeal. Sheller JA stated in R v BJW [2000] NSWCCA 60 at [20]:

“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…”

  1. Judgments in the appellate jurisdiction have described the necessity for substantial terms of imprisonment “not only to punish them, but also in an endeavour to deter others who might have similar inclinations…” (R v Fisher (1989) 40 A Crim R 442 at [6]). The increasing pattern of sentences for child sexual assault offences reflect a change in community attitudes to child sexual assaults.

  2. Mason P, in R v MJR [2002] 54 NSWLR 368; [2002] NSWCCA 129 at [57] described the pattern of increasing sentences as having:

“come about in response to greater understanding about the long-term effects of child sexual abuse and incest; as well as by a considered judicial response to changing community attitudes to these crimes.”

  1. The Crown pointed to a number of aggravating factors pursuant to the factors set out in section 21A(2) of the Crimes (Sentencing Procedure) Act 1999. These include the abuse of a position of trust. With respect to the first victim, there was a position of trust reposed in the offender by virtue of the visiting family and the father of the complainant implicitly trusting the good character of his friend.

  2. With respect to the second victim, the offender built up what might be perceived as a degree of trust in his young visitor over a period of time during which a friendship evolved. She was clearly vulnerable and proved susceptible to the monetary and other inducements which he proffered.

  3. Whilst the offending was not committed in the home of either victim, with respect to the first victim she was a visitor in his home together with one of her parents and her sibling. She was entitled to feel safe, just as she would have in her own home.

  4. With respect to the second victim, I accept the Crown’s description of the offender’s home having become a “safe haven” for his young victim who did not tell her mother where she was visiting, other than for the collection of bottles.

  5. Both victims were vulnerable by virtue of their respective ages. However, the element of their young ages is reflected in the age elements in the offences charged. Care must be taken to not double count this factor.

  6. However, it is appropriate to recognise the additional vulnerability of the second victim by virtue of her apparent economic and financial vulnerability which is a factor distinct from her age.

  7. Both parties have undertaken an assessment of the objective seriousness of the individual counts in the indictment. A general submission by the Crown is that none of the offences fall above the mid-range of objective seriousness.

  8. With respect to Count 1, the indecent assault constituted by using a towel to rub the victim’s bottom, the Crown and the defence both agree in their written submissions that the offence falls just below the mid-range of the objective seriousness for such an offence. I agree with that categorisation.

  9. With respect to Count 2, sexual intercourse involving penetration with the towel of the victim’s vagina, the defence submits that the degree of penetration was slight, although enough to cause some pain due to the roughness of the towel. The defence submits that the duration was brief and the victim was aged 8, which was approaching the upper end of the age limit stipulated at the time of the offence. While the offence caused embarrassment and some degree of trauma, with the victim crying until she went to sleep, the defence acknowledges that the memory of the event has continued into her adult life. In the defence submission, the objective criminality of the offence falls “well toward the lower end of objective criminality.” In the Crown’s submission, the objective seriousness of Count 2 is more appropriately placed “to the lower end of the mid-range.”

  10. In my assessment, the objective seriousness falls slightly below the mid-range.

  11. With respect to Count 4, the indecent assault constituted by the deliberate brushing against the outside of the victim’s vagina with the back of the offender’s hand, both parties agree that the objective seriousness falls below the mid-range. I agree.

  12. With respect to Count 5, the indecent assault constituted by paying the child to remove her clothing, both parties agree in their respective written submissions that the objective seriousness falls “just below mid-range”.

  13. Whilst acknowledging the subjectivity which is implicit in an assessment of objective seriousness, and the potential for some divergence of opinion as to how far below the mid-range such offending falls, I agree that it falls below the mid-range. The assault was constituted by holding the victims’ arms. It did not include sexual touching.

  14. Counts 6, 7 and 8, described as constituting the “second incident” with the second complainant, involved the digital penetration of the child’s vagina (Count 6), the using of the victim’s hand to rub the offenders penis “up and down” described by her as a “hand job” (Count 7), and then the act of fellatio where the offender asked the victim to suck his penis and passed remarks such as “no teeth” (Count 8). In the defence submission, Counts 6 and 8 fall below the mid-range while Count 7 is submitted to fall “around the mid-range.” In the Crown’s submission, each of the three offences “fall at mid-range.”

  15. Recognising that there is no necessary gradation of seriousness with respect to physical acts constituting sexual intercourse, I will place the digital penetration below mid-range for such types of offending and Count 8 towards the lower end of the mid-range. The indecent assault in Count 7 I agree falls within the mid-range for such offences. There is, of course, a different maximum penalty for Count 7.

  16. Counts 9 and 10 involve the act of cunnilingus (Count 9) and the simultaneous act of fellatio (Count 10). In the defence submission, both of these offences fall “just below the mid-range.” In the Crown’s submission, they fall “well into the mid-range.” The offending was submitted by the Crown to constitute a breach of the trust which had been built up between the child victim and the offender who had befriended her in the circumstances set out and against the background of what appears to have been a somewhat dysfunctional upbringing. I agree that the objective seriousness falls within the mid-range of objective seriousness.

  17. Count 11 related to the act of indecency constituted by the offender encouraging the victim to urinate on him while he lay on the ground. This act of inciting a child to commit an act of indecency is agreed by both parties to fall around the mid-range of objective seriousness. I agree with that assessment.

  18. With respect to Count 12, the offence of carrying out a sexual act towards the child by masturbating himself to the point of ejaculation and showing the ejaculate to the victim, both parties agree that this similarly falls “around mid-range.” I similarly agree.

SUBJECTIVE CIRCUMSTANCES

  1. The offender did not give evidence on the sentence proceedings. A psychological assessment by Dr Paul Pusey, Clinical and Forensic Psychologist, dated 17 August 2024 was tendered in the defence case. The Court also received the benefit of a Sentencing Assessment Report prepared by Ilona Koro, Team Leader of the Silverwater Parole Unit dated 26 August 2024, and a Psychological Case Report prepared by New South Wales Department of Corrective Services Psychologist, staff member Allison Hills, dated 23 August 2024.

  2. At the time of the assessments and at the time of the sentence proceedings, the offender was 86 years of age. The offender was born in Grafton in November 1937 and was raised in that town. He describes his childhood as being “very good. I had beautiful parents and a beautiful family. We weren’t rich, but we were happy.” The offender described his family as being regular church goers and told the psychologist that he used to win prizes for Sunday School attendance. He denied any experience of adverse childhood events, exposure to anti-social attitudes or beliefs. He similarly denied experience of anti-social behaviour or having associates who conducted themselves anti-socially.

  3. He attended school, according to the psychologist’s report, up until completion of Year 10 and receiving his School Certificate. I suspect that that is a misunderstanding by the psychologist as, prior to the introduction of the Wyndham Scheme, the offender would have left school after completing the Intermediate Certificate in what would have been third form at High School. I note that the introduction of the School Certificate and the obtaining of such an intermediate level of certification was not introduced into the New South Wales school system until 1967.

  4. The offender described having attended public schools in both primary and high school. He said that he did not have any conduct-related issues during his time at school.

  5. After leaving school, at what I would infer was approximately 15 years of age, he said that he joined the Post Office. He described learning Morse Code while he was in the Post Office. He said that he was “in the last class in 1956 when it was taught.” At the time of his assessment, the offender acknowledged he was retired and in receipt of the aged pension prior to his incarceration. He described that when he was in the community, he managed the Telstra Museum at Bankstown. He told Dr Pusey that he had also founded it and had been volunteering with the Telstra Society since 1989.

  6. He described having had “very good social relationships, particularly through the Morse Code fraternity.” He described managing the Telstra Museum and said that he had been provided with a Telstra vehicle up until his 80s for what he was doing for the company. He described that through his involvement with the Telstra Museum, he had “friends in every state.” He described travelling around the state and also the country with members of the Telstra Society. He said that the trips were paid for by Telstra. He had received the Order of Australia Medal in 2007 for his services to the community and recognition of his volunteer work.

  7. He described having married his wife in 1962. He said that he is currently separated from his wife. He attributed the breakdown of his marriage as a consequence of his “devotion to trying to preserve Australia’s telecommunications history.” He said that his wife had believed he should have been being paid for what he was doing. He said that the volume of volunteer work he was doing and his commitment to it was the biggest cause of his marriage problems. He said that the charges presently before the Court had not had any impact on his marital relationship. He said that the offences occurred “after our separation”. He described his wife still living at the house they had bought together.

  8. The offender and his wife had one daughter who is their only child. He acknowledged that she does not want to talk to him since his arrest. They now only communicate by mail. He said: “I understand why.” He described his relationship with his daughter prior to being arrested as a “beautiful” relationship. He described the detail of their regular meetings.

  9. With respect to the consumption of alcohol or the use of illicit substances or cigarettes, the offender denied any history of substance misuse. He denied having any history of engaging in the use of illicit substances. He acknowledged a “minimal consumption” of alcohol.

  10. With respect to his psychosexual history, he identified as being heterosexual and said that his wife had been his only sexual partner. He denied any engagement in sexual relations with a partner under the legal age of consent. He denied having any attraction to either underage sexual partners or to children. He stated that the offending behaviour “was just out of the blue”.

  11. The offender described his health having gone downhill fast since he had gone into custody. He said he had initially lost 8 kilograms but put a little bit of weight back on. He said he was currently 69 to 70 kilograms. He described his belief that he had lost weight due to worrying. However, he said he was also unable to eat the food provided in gaol. He said that he had an ulcerated oesophagus which he had been taking medicine for since about the age of 40. He also described a sinus problem which impacted his breathing at night. He claimed to not be receiving the correct medication for either of those problems. He described being managed by medication for blood pressure, gout, and an overactive thyroid. He described there being a problem with his “meds” because they had a different nurse every night. He said that on one occasion he had received “someone else’s meds”. He said that he had had a seizure on Christmas Day 2022 which he believed was as a consequence of being given the wrong tablets.

  12. Whilst in custody, he said he had asked to see a psychologist but was still on the waiting list. He rated his mood as between 4 to 5 out of 10. He said that he worries because he “can’t apologise for what I’ve done.” He said: “I would dearly love to apologise to the girl involved and her family.” He said that “It continues to go through my mind that I won’t be allowed to.” He said that he was concerned about the second complainant and her family and his own family because of the damage he had caused.

  13. He described having experienced both deliberate self-harming and suicidal ideation during the period of his incarceration. He described having slashed his wrist which he said was repaired with microsurgery at Prince of Wales Hospital. Other than that one occasion, he said he has not made any further attempts on his life after realising how stupid the thought was to think about killing himself. He thought that his cognitive function had got worse during his time in custody. He acknowledged experiencing feelings of guilt and remorse with respect of the charges relating to the offences involving the second complainant.

  14. In his record of interview he had described things being done to him, rather than him doing things to the complainant. He told the psychologist he thought he was currently experiencing an episode of depression.

  15. Dr Pusey, the Clinical and Forensic Psychologist, carried out a screening assessment for both sexually-based and general criminality recidivism risk. The BARR-2002R was an actuarial risk scale for assessing general and violent recidivism, including sexual recidivism. The score achieved in that assessment led Dr Pusey to express the opinion that the offender presents as having a very low risk of general and/or violent criminal recidivism.

  16. A second assessment was undertaken using the instrument described as the STATIC-2002R. The score returned by the offender was 0 on this scale. That was described as being approximately 0.38 times lower than the recidivism rate of the typical sexual offender. The score placed him in the low-risk category of sexually-based recidivism.

  17. Additional testing was undertaken to test the veracity and accuracy of the other tests and scales utilised in the course of the assessment. It was concluded that there was an 18% probability that his results belonged to an experimental feigner. Based upon the information gleaned in the assessment, Dr Pusey expressed the opinion that it was possible that the offender would fit the diagnosis for a mental health diagnosis as described in the DSM-5. The diagnosis which appeared to be congruent with the offending behaviour reported to the psychiatrist would be one of Paedophilic Disorder. Dr Pusey noted the admissions regarding offending with respect to the second complainant whilst the offender continued his assertions denying guilt with respect to the first complainant.

  1. Dr Pusey opined that diagnoses of a Major Depressive Disorder and a Somatic Symptom Disorder were consistent with the offender’s presentation during the clinical interview.

  2. The psychologist reported that no evidence had been provided suggestive of a history of criminal offending preceding the charges currently before the Court. Dr Pusey thought that the offender demonstrated an extremely limited degree of insight into the causal mechanism relating to the events pertaining to the first complainant, as well as a limited degree of insight into the events relating to the second complainant.

  3. The report from Dr Pusey goes into considerable detail regarding what is described as the “Risk Needs Responsivity Model”. This is described as one of the “dominant paradigms in the risk assessment field.” Dr Pusey ultimately concluded that what is described as Antisocial Cognition appears to be one of the major risk factors most related to his offending behaviour and the circumstances and decision-making which resulted in this occurring. Dr Pusey opined that this risk factor reflected self-justifications and belief systems which allowed the offender to engage in his offending behaviour. The psychologist also thought that this risk factor may additionally reflect the offender’s inability to accept responsibility in relation to the charges pertaining to the first complainant.

  4. However, notwithstanding those expressions of opinion, Dr Pusey was of the view that none of the additional risk factors were relevant in relation to Mr Mullins’ offending. He concluded that the risk of recidivism was in the very low to low-risk category based upon the results returned from the entirety of the assessment process.

  5. Dr Pusey further expressed the opinion that the offender’s willingness to meaningfully engage in evidence-based psychological treatment was a further factor which would require ongoing assessment and monitoring with respect to his risk of recidivism.

  6. Dr Pusey concluded with his opinion that in the event that the offender remains in custody, he should be assessed for suitability for referral to the CUBIT treatment program given the nature of his offending. Dr Pusey recommended that a copy of his report should be released to all treatment providers in order to support intervention with the offender.

  7. The Case Note Report, prepared by staff member Allison Hill within Corrective Services, was based on file information and liaison with Corrective Services staff. The offender was not interviewed by the author. The report noted that the offender had been interviewed by Ms Koro on two occasions in August 2024. He appeared agitated when discussing the first victim and denied those offences. He suggested they were fabricated by the child’s father as “revenge”.

  8. In relation to the second victim in 2017, the offender had accepted responsibility for some of the offences. He had, however, denied licking the child’s vagina and similarly denied inserting his fingers into her vagina. He described the victim as being “sexualised for her age”. He denied sexual attraction to children or adolescents and denied sexual gratification from his offending. He did not acknowledge his behaviour as grooming and denied having offered money to the child.

  9. The report describes that the offender had previously been charged with sexual offences in 1965. No evidence has been adduced with respect to any such offending and the reference to it is to be ignored.

  10. An assessment of the risk of sexual re-offending was undertaken using the actuarial risk assessment STATIC-99R. His total score of 0 placed him in the below-average risk category. The result was accounted for by factors including his age, prior charges, and his victims being either unrelated or a stranger. As I have already noted, the suggestion of prior charges is to be ignored. In light of aspects of the offender’s denials, a Corrective Services psychologist recommended that a comprehensive assessment of dynamic, or changeable, risk factors should be completed.

  11. Based on the risk rating pursuant to STATIC-99R, the offender was unlikely to be eligible for NSW Correctional Services Sex Offender Programs. In the event of a custodial sentence, it is recommended that he be referred to Corrective Services Psychology Services for referral to an appropriately qualified psychologist in order to complete further assessments and determine his treatment needs.

  12. The Sentencing Assessment Report described the offender having been separated from his wife for the past 20 years. The report described the offender’s family, including his 57-year-old daughter and two granddaughters who are both aged in their 20s. The offender confirmed he has nil contact with these family members.

  13. The personal and social background and employment background of the offender was described in summary fashion consistent with the report from the psychologist. His NSW criminal record indicating nil prior criminal convictions was contrasted with the reference in the psychology assessment consultation which referred to sex offences in 1965. I repeat, they will be ignored.

  14. The offender was assessed as displaying limited insight and only accepting minimal responsibility for his offending. His denial of offending with respect to the first victim was again noted. His limited acceptance of responsibility with respect to the second victim was again qualified by denial of two of the more serious offences against her.

  15. With respect to specific risks, the author of the Sentencing Assessment Report expressed the opinion that the offender appeared to pose most risk to extra-familial females aged between 8 and 11 years. It was noted that the second victim was vulnerable having experienced disadvantage in the family home. The author of the report thought that the offender’s actions suggest he may have exploited this vulnerability. Corrective Services records confirmed that the offender had engaged in an act of self-harm on 19 August 2022.

  16. While the offender stated he was “remorseful” and that his actions may have had a negative impact on one of the victims, he was unable to articulate how or in what way his behaviour may have impacted the victim. The offender is currently accommodated in an “aged and frail” unit in the Metropolitan Reception and Remand Centre (MRRC). The assessment of the offender having a low risk of re-offending according to the Level of Service Inventory – Revised (LSI-R) was recorded.

VICTIM IMPACT STATEMENTS

  1. Each of the victims prepared a victim impact statement. The first complainant said that she had toned down what she wanted to say for the sake of people listening, including her family. She said she had also restrained her comments about what the offender did and the impact he had had on her for her own sake and her own dignity.

  2. She described it having been 18 years since her first ever interaction with the offender. She said there was not a single day that goes by that she does not think about it. It marked the day that her childhood, teenage years and young adulthood were brazenly and selfishly stolen from her. She described that the first time he had laid hands on her as an 8-year-old child would forever haunt her thoughts and will impact on any future choices that she will make. She described the terror that she felt at the time. She described understanding now as an adult the devastating impact he had on her life.

  3. The first victim described the many years of her life feeling ashamed, voiceless and hypervigilant in keeping secret what had happened in fear of judgement from her family and friends. She described a current understanding that she suffered from a symptom of complex PTSD, depression and anxiety as a consequence of his actions. She described numerous mental health concerns including thoughts of suicide, self-harm and eating disorders as well as other issues including, inter alia, heart palpitations, chronic fatigue and gastrointestinal issues. She described taking a lot of medication daily.

  4. She described the considerable help she had received from her psychologist who had helped her immensely. She had come to the realisation that she is no longer voiceless and that what the offender did to her no longer makes her feel ashamed of herself and how others perceive her. She described commencing a new chapter of her life where thoughts of the offender will be diminished and one day gone forever.

  5. The second victim, described the profound effect that the assaults committed by the offender had had on her life. She described struggling with anxiety, bouts of depression, insomnia and relentless nightmares. She described a deep fear of older men. Certain phrases by the offender still haunt her and trigger painful flashbacks. Her grades at school plummeted due to severe depression and she dropped out of school at the beginning of year 10. She described the guilt felt by her mother who has believed that it was her fault that the events occurred to her daughter. These thoughts only deepened the pain of the victim herself.

  6. The second victim said that she often turns to poetry to help understand her emotions, especially when she finds it hard to express how she feels. The lengthy poem that she wrote was recited by her to the Court. I do not repeat it in full. It includes the following excerpts:

“But I still feel the pain so much,

The fear of my memories,

Drives my everyday activity,

There are no known remedies,

That can help my insanity…”

“Predator was just a word,

A term and a meaning,

Before you turned it into something differently entirely,

You hunted me down like I was your prey,

Earnt my trust over time,

And it worked much to my dismay.”

“You let me talk about my problems,

And you told me it’d all be okay,

And yet you became my biggest demon,

One I still haven’t slayed.”

“You took a little girl’s trust and loneliness,

And used it to your advantage,

You grasped that little girl’s future in your hands,

And messed it up like it was nothing.”

  1. The importance and significance of the need of the law to take into account the impact of offences on victims has frequently been referred to. The High Court in Munda v Western Australia [2013] 249 CLR 60; [2013] HCA 38 at [54] referred to the role of the criminal law as including: “the longstanding obligation of the State to vindicate the dignity of each victim of violence.”

  2. The statutory scheme which is set out in Part 3, Division 2 of the Crimes (Sentencing Procedure) Act 1999 provides for the receipt of victim impact statements. The statements prepared and read in the current proceedings reflect not only the general experience of the law with respect to the sexual abuse of young children, but highlights the particular harm suffered by the individual victims, that is both of them, in the present matter.

  3. In light of the findings which I have made, and consistent with the jury’s verdicts regarding the criminal conduct of the offender, it is appropriate to give relevant weight to each of the victim impact statements which have been read to this Court (see R v Thomas [2007] NSWCCA 269 per Basten JA at [37], Latham J agreeing).

COMPARATIVE CASES

  1. The Court was not provided with any comparative cases. Most cases dealing with aged offenders for similar criminal conduct are sentences imposed with respect to historical sexual assaults. The present offender was 80 or 81 years of age at the time of his sexual assaults upon the second complainant. No offending in sexual assault matters by an offender of similar age at the time of the offending was able to be located by the Crown.

  2. However, the Court has found one matter to which I will shortly refer which was a special hearing in which the offender was 90 years of age and suffering from dementia at the time of the hearing. However, the sexual offences had occurred with the first complainant in that matter when the offender was between approximately 73 and 75 years of age, and the later offending against a second complainant had occurred when he was 85 or 86 years of age.

  3. To the extent that other cases provide some general assistance in an ascertaining of range, the Court has looked at the following cases.

  4. Scrimshaw (a pseudonym) v R [2021] NSWCCA 81 concerned an offender who was 59 years of age. The abuse of trust was more extreme involving, amongst other offending, penile/vaginal penetration of his natural daughter when she was between the ages of approximately 10 and 14. The offender had also served a period of imprisonment when he was in his 20s for the sexual abuse of other children.

  5. An aggregated sentence of 11 years with a total non-parole period of 7 years had been imposed at first instance by means of a series of “cascading” head sentences with staggered commencement dates, rather than indicative sentences with a single aggregate sentence. Four substantive offences had each carried a maximum penalty of 16 years. Other sexual offending, including digital penetration, had been included on Form 1 documents.

  6. Three of the head sentences imposed in the District Court were of 5 years, and one of 7 years, leading to the total head sentence of 11 years with an effective non-parole period of 7 years.

  7. The significance of the matter in the Court of Criminal Appeal was that the Court, if it had proceeded to re-sentence on the basis of identified errors in the Court below, indicated that indicative sentences for the four counts would have been longer than the individual sentences which had been imposed at first instance. Accordingly, although leave to appeal against the severity of the sentence was granted, the appeal was dismissed.

  8. R v MJ [2023] NSWCCA 306 was a Crown appeal against inadequacy. The offender was 38 years of age and the victim was 10 years old. The offender lived occasionally with the mother of the victim at her house. On one specific day the offender had taken the 10-year-old victim with him to a service station where he had taken the child into the service station bathroom where he anally raped her. The penile/anal intercourse had clearly been planned and the offender had sprayed lubricant on the victim’s anus before engaging in the intercourse. An incident involving assault with an act of indecency committed upon the victim earlier that day was placed on a Form 1.

  9. The offence contrary to section 66C(1) of the Crimes Act 1900 carried a maximum penalty of 16 years and a standard non-parole period of 7 years.

  10. The offender was initially arrested and refused bail for unrelated domestic violence offences committed against the victim’s mother on an earlier occasion. He had been sentenced with respect to those matters to an aggregate term of imprisonment of 3 years and 4 months (40 months) with an aggregate non-parole period of 1 year and 8 months (20 months) which terms commenced on 21 February 2022.

  11. After allowing a 25% discount for the Guilty plea, and taking into account Bugmy considerations, the sentencing judge, Grant DCJ, had imposed a sentence of 3 years with a non-parole period of 2 years. However, the sentencing judge had also backdated the sentence which he imposed to commence on 11 September 2022, slightly less than six months into the pre-existing sentence for the domestic violence offending.

  12. The overall effect of such a degree of concurrence with the earlier sentence meant that the offender would only serve a period of 8 months and 20 days which was wholly referable to the section 66C(1) offence.

  13. The Court of Criminal Appeal upheld the Crown’s challenge both as to the length of the sentence which had been imposed and also as to the date from which the sentence should commence. Price J, Simpson AJA and Davies J agreeing, re-sentenced the offender to a term of imprisonment of 6 years with a non-parole period of 4 years. The sentence was backdated to commence on 21 December 2023 which was after the expiration of the non-parole period which had been imposed in the Local Court with respect to the separate charges of assault and domestic violence committed against the different victim.

  14. The sentence imposed in the Court of Criminal Appeal took into account the not insubstantial Bugmy considerations which related to the offender.

  15. R v Antin (a pseudonym) (No 2) [2021] NSWDC 584 is the case to which I referred earlier involving a 90-year-old offender. Antin was suffering from significant cognitive impairment dementia and was found “unfit to be tried” by Acting Judge Woods QC in March 2021. A special hearing was conducted by Judge Haesler SC in October 2021 following which the offender was referred to the Mental Health Review Tribunal. Two of the offences which were found established on the limited evidence available related to an act of indecency where the offender had caused his then 3-year-old granddaughter to perform what she described in her evidence, given as a young adult, as a “hand job”. That offending occurred in approximately 2004 when the offender was aged approximately 73. The last incident with his granddaughter occurred some years later when she was about 7 or 8 and in her description, “he anally raped me”. She described similar events having occurred about 10 times previously.

  16. The second complainant was a neighbour of the offender and was about 10 or 11 years of age when the events with her took place. She had been called into the backyard by the offender on an occasion where she presumed he was going to give her some vegetables from his garden, which he had done previously. He got her to come inside the house where he removed her clothing in an assault with an act of indecency. He also placed his penis against her anus. The offender was 85 or 86 years of age at the time of that offending.

  17. The offender had been born in Macedonia in 1931. He had been of prior good character which was described as having been lost when he commenced the offending against the first complainant, his granddaughter. The fact of there having been some delay in those matters being brought to Court had provided the offender with the benefit of people assuming he was a man of good character and living free in the community during that time when he was, in fact, following the first offending, a serious sexual offender.

  18. By the time of his special hearing, the offender was suffering from a number of conditions described as not unusual for a man of 90. He had disc prolapse, back pain, dermatitis, rosacea, and hypertension. He had suffered pulmonary embolisms and had had cataract surgery, in addition to other serious medical problems including stage 3 chronic renal disease. He had also developed a major neurocognitive disorder in the form of advanced dementia.

  19. In determining an appropriate limiting term in accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the sentencing Judge noted at [30] that:

“General deterrence is often of considerable importance in sentencing child sex offenders but here those considerations need significantly less emphasis than would be the case if I sentenced after trial, a person who did not have his significant cognitive disability.”

  1. In the circumstance that the offender in his present mental state did not even realise that he was in Australia, Judge Haesler found it impossible to make a finding that specific deterrence could have an impact upon him. Judge Haesler took into account the state of the health of the offender and also the circumstances of the COVID pandemic which rendered additional restrictions being placed on prisoners at that time and a sentence accordingly being more onerous.

  2. His Honour observed at [33]:

“Because of his age and mental condition a custodial sentence will weigh more heavily on him. He will serve his term in conditions more onerous than those for a person who does not have his condition. This is frankly a cases [sic] where despite the heinousness of the offending found to have been committed on the limited evidence the community would say human sympathy means that you would not expect him to get the same sentence as someone else: R v Engert (1995) 84 A Crim R 67 per Allen J at 70.” (sic. cf at 72).

  1. However, Haesler SC DCJ went on to say at [36]:

“The limiting term that I impose will effectively last for the rest of his life and while that might attract sympathy for some, although I suspect not for many in the community, it is not the test the Court must apply. The Court must apply principle: Anastasiou v R [2010] NSWCCA 110. It is not for this Court to impose an inappropriate sentence in order to give an ill or elderly offender hope of release before his death: GS v R [2016] NSWCCA 266 at 107.”

  1. It is respectfully pointed out that the citation in his Honour’s judgment to Anastasiou is incorrect. The correct citation is Anastasiou v R [2010] NSWCCA 100. Anastasiou did not involve sexual offending. Sentences had been imposed for a substantial number of offences of larceny and related offending. At the time of his appeal, Anastasiou was dying from a cancer developed from cirrhosis of the liver that had been caused by chronic hepatitis C infection from the use of drugs.

  2. Rothman J, with whom McClellan CJ at CL and James J agreed, said at [22] that the state of health of an offender and the effect of imprisonment is a relevant consideration in the determination of an appropriate sentence. However, on the circumstances then before the Court his Honour said at [34]:

“There is no doubt that the terminal illness of the applicant, Mr Anastasiou, is one which evokes great sympathy, not least from the Court. But sympathy is not the test that this Court must apply. The Court must apply principle.”

  1. In GS v R [2016] NSWCCA 266, to which Judge Haesler SC had also referred, the offender was 67 years of age at the time of sentence. He was frail and suffering from chronic kidney disease as well as a number of other serious medical conditions.

  2. He had been sentenced for a number of different sexual assaults by different judges, first in 2011 by Williams DCJ and secondly by Culver DCJ in 2014. Significant consideration of the principle of totality needed to be taken into account by Judge Culver. Evidence relating to the offender’s anticipated life expectancy had been led on both occasions of him being sentenced. However, in dismissing the appeal against the severity of sentence, Gleeson JA, with whom Fagan and N Adams JJ agreed, held that despite the applicant’s age and ill health, and “the real risk that he will spend the remainder of his life in custody”, the sentences were not plainly unreasonable or unjust.

  3. N Adams J had added, at [107]:

“Her Honour was aware that, by reason of the applicant’s age and ill health, there was a significant likelihood that the applicant would die before the expiration of his non-parole period. It is not uncommon for this Court to hear applications for leave to appeal against sentence brought by elderly applicants or applicants suffering from serious illnesses, which may well be exacerbated by the custodial environment. Some of those conditions may be terminal. The Court has sympathy for applicants in such circumstances but it is not for this Court to intervene in a sentence that is otherwise appropriate and not affected by error in order to give an ill or elderly applicant hope of release before his or her death.”

  1. Whilst noting that there is no direct correlation in the length of a limiting term in the circumstances being dealt with in Antin, the limiting terms which were determined by Judge Haesler SC were of 2 years and 3 years with respect to the complainant who was the offender’s neighbour, and 4 years and 7 years with respect to the offending against his granddaughter. The limiting terms were staggered as to their dates of commencement and the effective limiting term was 9 years and 6 months.

  2. The Court has also had regard to the “blunt instrument” of the various Judicial Commission Statistics. The Court recognises their limited utility other than indicating a broad range in respect of the various charges.

  3. In some instances, the limited utility of the statistics is underscored by the small number of cases appropriate to the specific charge. The ranges revealed with respect to the specific counts and the respective number of offenders are as follows:

  1. Counts 1 and 4 (section 61M(2)); child under 10; standard non-parole period 5 years; one offender only; sentence of 12 years with 8 years non-parole (the indicative sentence for the section 61M(2) offence in that matter was 7 years with a 4 year non-parole period).

  2. Count 2 (section 66A); sexual intercourse child under 10; 32 offenders in total; 1 CCO, head sentences (multiple offences and multiple victims) range from 30 years down to 18 months. Approximately 60% of all terms of imprisonment involved sentences of 12 years or less, of which almost 30% in total were terms of imprisonment of 10 years or 12 years.

  3. Counts 5 and 7 (section 61M(2)); indecent assault under 16; standard non-parole period 8 years; total offenders 146; 80% (118) terms of imprisonment ranging from 6 months up to 18 years. In excess of 50% of the terms of imprisonment fall within the range of 2 years to 4 ½ years as the head sentence.

  4. Counts 6, 8, 9 and 10 (section 66C(1)); sexual intercourse child between 10 and 14; total offenders 100; terms of imprisonment 87; head sentences range from 12 months to 18 years. In excess of 50% of terms of imprisonment fall within the range of 4 years to 8 years.

  5. Count 11 (section 61N(1)); incite person under 16 to commit act of indecency; one offender; 6 months imprisonment.

  6. Count 12 (section 66DD(a)); sexual act with child between 10 and 16; one offender; 6 months imprisonment.

CONSIDERATION

  1. I note the offender’s lack of remorse completely with respect to the first victim. He has acknowledged a limited acceptance of responsibility with respect to the second victim. In my view, the Crown accurately described his admission as relating to acts to him by the victim and a continued denial of wrongful acts done by him. There was, in my view, an element of victim blaming in what he told the police with respect to the second victim. Such an attitude diminishes the value of his partial acknowledgement of remorse.

  2. I bear in mind the significance with respect to the sexual abuse of children of general deterrence. I recognise the ongoing deleterious effects on the mental health and wellbeing of both victims.

  3. I propose to proceed by way of an aggregate sentence pursuant to the provisions of section 53A of the Crimes (Sentencing Procedure) Act 1999. The indicative sentences and where required, the indicative non-parole periods, are as follows.

  1. Count 1: 18 months with an indicative non-parole period of 13 months.

  2. Count 2: 5 years with an indicative non-parole period of 3 years 9 months.

  3. Count 4: 2 years with an indicative non-parole period of 18 months.

  4. Count 5: 12 months with an indicative non-parole period of 9 months.

  5. Count 6: 5 years with an indicative non-parole period of 3 years 9 months.

  6. Count 7: 5 years with an indicative non-parole period of 3 years 9 months.

  7. Count 8: taking into account a 5% discount, 5 years 8 months with an indicative non-parole period of 4 years 3 months.

  8. Count 9: 6 years with an indicative non-parole period of 4 years 6 months.

  9. Count 10: taking into account a 5% discount, 5 years 8 months with an indicative non-parole period of 4 years 3 months.

  10. Count 11: taking into account a 5% discount, 13 months.

  11. Count 12: 12 months.

  1. In determining an appropriate aggregate sentence and bearing in mind the principle of totality, it needs to be made clear that the significance of general deterrence and appropriate recognition of the indignity of the offending on two children, are not matters which should be outweighed by misconceived emotions of sympathy for an offender who will spend a considerable part of his remaining years in custody. While I have not found special circumstances with respect to the indicative non-parole periods, acknowledging that it is the offender’s first time in custody and that he is likely to find conditions of imprisonment more onerous than others by virtue of his increasing age, I have made a finding of special circumstances in determining the aggregate non-parole period, taking into account those subjective factors.

  2. The aggregate head sentence will be a period of 10 years.

  3. I have varied the statutory ratio with respect to the non-parole period on account of the factors to which I have referred. The non-parole period will be 6 years and 6 months. The head sentence and non-parole period will commence on the day of the offender having gone into custody, namely 16 May 2022. The non-parole period will, accordingly, expire on 15 November 2028. The balance of term of 3 years and 6 months will expire on 15 May 2032.

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Decision last updated: 15 May 2025

Most Recent Citation
Cases Citing This Decision

1

FGC v The State of Western Australia [2008] WASCA 47
Cases Cited

16

Statutory Material Cited

2

GAT v R [2007] NSWCCA 208
R v PGM [2008] NSWCCA 172
R v BJW [2000] NSWCCA 60