R v Norton (a pseudonym)

[2023] NSWDC 301

District Court

New South Wales

Medium Neutral Citation:

R v Norton (a pseudonym) [2023] NSWDC 301

Hearing dates:

24 February 2023

Date of orders:

24 February 2023

Decision date:

24 February 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment for 10 years and 3 months with a non-parole period of 6 years and 9 months

Catchwords:

CRIME — Child sex offences — Sexual intercourse with child between 10 and 14 — Circumstances of aggravation

CRIME — Sexual offences — Indecent assault — Circumstances of aggravation – multiple offences- multiple victims

SENTENCING – Relevant factors on sentence –multiple offences - three complainants- stepdaughters - early guilty plea - assessing objective seriousness- victim impact – COVID – reduced moral culpability - history of childhood abuse and neglect - future risk and how it may be managed

Legislation Cited:

Children (Criminal Proceedings) Act1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

AB v R [2022] NSWCCA 62

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146

Barbaro v The Queen (2014) 253 CLR 58

BT v R [2010] NSWCCA 267

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162

R v Cassell [2022] NSWDC 471

Clarkson v R [2011] VSCA 157; 32 VR 361

Decision Restricted [2023] NSWCCA 10

DH v R [2022] NSWCCA 200

Director ofPublic Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Doe v Regina [2013] NSWCCA 248; (2013) 187 A Crim R 328

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Hoare v The Queen (1989) 167 CLR 348

Khoury v R [2011] NSWCCA 118

LB v R [2019] NSWCCA 151

MAK v R [2006] NSWCCA 381

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

MRM v R [2015] NSWCCA 195

Muldrock v The Queen (2011) 244 CLR120

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Owen v R [2022] NSWCCA 214

Paterson v R [2021] NSWCCA 273

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v AJP [2004] NSWCCA 434

R v Clinch (1994) 72 A Crim R 301 at 306

R v Dent NSWCCA unreported 13/03/1991

R v Dodd (1991) 57 A Crim R 349

R v Gavel [2014] NSWCCA 56

R v Gordon (1994) 71 A Crim R 459

R v KNL [2005] NSWCC 260

R v Millwood [2012] NSWCCA 2

R v NJK [2011] NSWCCA 151

R v Thomson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383

R v Van Ryn [2016] NSWCCA 1

R v Windle [2012] NSWCCA 22

Ryan v The Queen (2001) 206 CLR 267

Tepania v R [2018] NSWCCA 247

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168

Zreika v R [2012] NSWCCA 44

Texts Cited:

D T Kenny, “The Social Dynamics and Impacts of Institutional Child Sexual Abuse” (September 2017) 29 Judicial Officer’s Bulletin 8

Category:

Sentence

Parties:

Henry Norton (a pseudonym) (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
A J Booker (for the offender)
Solicitors:
J Walshe (for the Director of Public Prosecutions)
Legal Aid (for the offender)

File Number(s):

2021/332156

Publication restriction:

Non-publication order regarding the name of any complainant or the offender

JUDGMENT - ex tempore revised

Pseudonyms

1. Pseudonyms are used for the names of the offender and the complainants who were at all relevant times children. I remind the media that pursuant to s 15A of the Children (Criminal Proceedings) Act1987 (NSW) and s 578A Crimes Act 1900 (NSW) there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information will be removed from any published version of the judgment, and I will be using the names which are not to be repeated outside the Court.

Introduction

2. There is an absolute prohibition on having sexual contact with children. That absolute prohibition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: see Clarkson v R [2011] VSCA 157; 32 VR 361; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1. Everyone in the community knows this.

3. Parliament on behalf of the community has reinforced that prohibition by fixing significant maximum penalties and standard non-parole periods for many such offences. Courts have over decades, and will continue in the future, sadly, to punish offenders who commit sexual crimes against children very severely. Such punishment is meant to extract appropriate retribution from offenders, vindicate the dignity of the complainants, and by the severity of the penalties imposed, attempt to deter other would-be offenders from committing similar acts.

4. Henry Norton (a pseudonym) knew all these things. He was also aware, having previously spent time in gaol, of how harsh the prison environment is.

5. At various times during his offending, he made promises to Courts to be of good behaviour. Such promises were a fundamental condition of his either, securing bail, or serving a sentence subject to intensive correction in the community. Despite knowing all these things Norton committed a series of sexual offences against three young girls who were in his care and under his authority.

6. The offences were committed against Sue (a pseudonym) between 2014 to 2018, Mary (a pseudonym) in 2021 and Jane (a pseudonym) in 2021. At the relevant times Sue was aged between 9 and 14, Mary 8 and Jane was 12. Each girl was, at the relevant time, his stepdaughter; he had an obligation to protect them from harm.

7. Some offenders against children presume they will not get caught. They make that presumption because they believe, often because threats are made, that the child will not complain, or if they do that the child will not be believed. Here each child did tell others what had occurred, and each child was believed.

Agreed Facts

8. There are comprehensive agreed facts before the Court. What follows is a summary.

Incidents: Sue

9. Sue was 9. She had a friend staying over. She was lying on her bed watching television. The offender entered her bedroom and sat on the bed. He put his hand inside her underpants. He then put his fingers inside her vagina and moved those fingers around. This happened for a period of time before he removed his fingers. That is the first matter for sentence – sequence 1.

10. During the incident he grabbed her hand and put it on his penis on the outside of his clothes. He moved it up and down. He then stopped and said, “If you tell anyone, you’ve seen what happens to your mum, it will happen to you”. This matter is on a Form 1 - sequence 13.

11. On another occasion when Sue was 9, she came home from school. The offender was in the shower. He called to her to come into the bathroom. She went in and she was urged to come closer. He pulled the curtain back, said to the complainant; “Just touch it”. She said, “Don’t want to”, but he said, “Just do it”, and she did because she did not want to get hurt. He grabbed her hand, placed it on his penis and moved it, and this continued for a period of time until the child’s mother came home. This matter is on the Form 1- sequence 14.

12. Sue was 10, she had been staying with a friend. She was picked up by the offender. Because of apparent misbehaviour at the friend’s place, she was grounded. When she got home, she went to her bedroom.

13. A short time later the offender called out and asked her to come to his bedroom. She thought she was going to get yelled at. He said, “You have to make me feel better”. She did not want to. He said, “If you want to be naughty you have to face the consequences”. She began to cry. The offender said, “Grab it like last time I showed you what to do”. Scared that she would be heard she took hold of his penis and moved it, masturbating him until ejaculation. He told her at the time, “This isn’t hurting anyone”, and after ejaculation he told the complainant to go and get him a towel and clean up. He said, “Remember don’t tell anyone or you’ll get what your mother does”. This is the second matter for sentence - sequence 15.

14. The next incident occurred when Sue was 12. At the time the offender was 33 years old. Her mother had broken up with the offender, but they had reconnected. She returned home. As she entered, a door slammed due to the wind. The offender came up to her and said, “You don’t slam doors in my house”. She sought to defend herself, but she was grabbed by the throat and pushed onto her bed. The assault matter on the Form 1- sequence 5. The offender said, “I’m sick of hearing you cry”, and then said, “Move over”. He said, “Be quiet there are people in the house”. He put his hand inside Sue’s pants and underwear, put his finger into her vagina moving it in and out. She was scared. She just lay there. He stopped when he heard someone coming. He said, “If you tell anyone I’ll say you’re just seeking attention. If anyone asks, say I was talking to you about your behaviour”. This is matter is the third sentence – sequence 6.

15. Sue complained to her mother about being assaulted. The offender denied it. Sue was not believed so she did not say anything else.

16. Sue made a disclosure in 2018 when she was in hospital however at that time, she was not in a position to speak to police due to mental health concerns. She made a formal statement in November 2021 when she was 17.

Incidents: Mary

17. The offender and Sue’s mother separated. He formed a relationship with the mother of Mary and Jane. At this time that he had his own apartment, but he would spend time in the children’s home and the children would visit him at his home. At the time of the incidents in relation to both Jane and Mary he was 36 years old.

18. The matters relating to Mary occurred in 2021. She stayed over and was sleeping on a mattress in the lounge room. During the night the offender went to where she was sleeping and sat beside her. He pulled his penis out and started to masturbate. A matter on a Form 1- sequence 7.

19. He then said, “Do you want a lollypop? Do you want to lick it? Don’t be shy”. She said, “No”. The offender said, “You have to, close your eyes”. He continued to masturbate. He then grabbed the hand of the complainant and placed it on his penis on the outside of his pants and used his hand and the hand of the complainant to rub himself. This is the fourth matter for sentence - sequence 8.

20. After she stopped doing this, he used his own hand to rub himself. Before she closed her eyes, Mary saw what she described as his ‘doodle’. A matter on the Form 1.

21. She then rolled on her side. He got off the mattress, stood beside her and placed his penis against the middle of her back and rubbed it against her. Sequence 10 on the Form 1.

22. After he stopped, he said, “Don’t tell anyone”. Understandably, she could not sleep for the rest of the night.

Incidents: Jane

23. The offences against Mary’s older sister, Jane occurred in 2021, when she was 12. She was at her home when she was contacted by the offender over Facetime. He was naked and exposed his penis to her. She said he was “wanking off.” She hung up on him, but he kept calling her back saying, “Jane, look at this”. Sequence 11 on the Form 1.

24. About the middle of 2021 she was staying with her mother and sister at the offender’s flat in Wollongong. He came in and lay beside her on a mattress. He asked her to lay down with him. She said “no”, but eventually did.

25. He started to rub his leg against her on the inside of her thigh. He then pulled his penis out and placed it against her back in the middle of her back. She closed her eyes and froze. She could feel his “private part” pushing against her. Something she described as “weird”. This continued for about five minutes until she got up, went into the bathroom, and locked the door. This is the fifth matter for sentence - sequence 12.

26. Mary told her mother in October 2021 Jane disclosed at the same time, and they made police complaints soon after.

The offender’s arrest

27. The offender was arrested on 22 November 2021, while he was in custody for other matters. He has been in custody ever since. He participated in a police interview. Although he corroborated many of the surrounding factual matters, relating to his interactions with the complainants, he denied all allegations of a sexual nature.

Objective Seriousness

28. An assessment of objective seriousness or the gravity of each offence is a critical component of the sentencing process. There are no prescribed set of descriptors that must accompany such assessment. I trust that the matters critical to my assessment will be readily apparent from these remarks.

29. I have to give effect to basic principles of sentencing law. They are set out in s 3A of Crimes (Sentencing Procedure) Act and reflect common law principles.

30. One important principle is that a sentence of imprisonment, and sentences of imprisonment, it is accepted, must be imposed here, should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime, considered in the light of its objective circumstances: Hoare v The Queen (1989) 167 CLR 348 at [354]; Way v R [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [125]. The objective seriousness of particular offending must be determined in the light of the entirety of the facts and the circumstances that apply to it.

31. Where matters involve sexual intercourse there is no hierarchy in the seriousness of the kinds of sexual intercourse: R v AJP [2004] NSWCCA 434; Doe v Regina [2013] NSWCCA 248; (2013) 187 A Crim R 328 at [54]; MRM v R [2015] NSWCCA 195 at [148]. It goes without saying that every sexual offence against a child is serious. There are some exceptions, but they are notable and rare.

32. An offence is completed when its specific elements are proved or admitted. But there are certain factors that make some sentences more serious than others. They can include:

1. The actual character of the assault, including the nature and degree of physical contact and where on the body the child is touched;

2. If intercourse occurs, the form of intercourse does not necessarily determine objective seriousness, rather a Court looks to the degree of physical interference with the child;

3. The time the incident occurred / took;

4. Where the offence occurred, particularly if the place where it occurred is one where the child would expect to feel safe and secure, such as a home or a bed in their home, or premises where they regularly spend time;

5. The age difference between the perpetrator and the child;

6. The age of the child relevant to the range encompassed by the offence. Various sexual offences, including those here, have age ranges. It is generally accepted that the younger the child, the more serious the offence: R v KNL [2005] NSWCC 260 at [42];

7. The relationship between the child and the perpetrator, including any position of trust, or where authority is exercised over the child. In matters where authority is exercised, care needs to be taken particularly if this is an aggravating element of the offence for sentence; and,

8. Any additional vulnerabilities of the child. It being inevitable that a child would be vulnerable because the other matters I have described apply to them.

33. Some matters can reduce the relative seriousness of sexual offending. Although they, more often than not, are properly classified as an absence of aggravating features.

34. Here, the seriousness of each matter will be reflected in the individual sentences I will indicate. as there will be an aggregate sentence. But, as all relevant matters must be synthesised, those indicated sentences must also include, where applicable, an increase to reflect my taking into account any matter on a Form 1.

35. In her written submissions, Ms Walshe for the Director of Public Prosecutions put forward propositions as to where each offence for sentence lay on a range of objective seriousness. Mr Booker, counsel for the offender, responded with his assessment.

36. In Owenv R [2022] NSWCCA 214, the Court of Criminal Appeal was critical of my sentencing decision because I did not determine a dispute between the parties as to where on a notional range of objective seriousness each offence lay. Since Owen was determined, other benches of the Court of Criminal Appeal have noted that it is not necessary for a judge to place an offence’s seriousness on some notional range. To the contrary, it has been noted in many such cases to do so, is either “unhelpful” or “unlikely to produce useful guidance for a sentencing judge, let alone those reading the judgment.”: Paterson v R [2021] NSWCCA 273; Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162.

37. I do not believe I am obliged to utilise the concept of mid-range offending: DH v R [2022] NSWCCA 200; Zreika v R [2012] NSWCCA 44 at [46]; R v Dodd (1991) 57 A Crim R 349 at 354; Khoury v R [2011] NSWCCA 118; Decision Restricted [2023] NSWCCA 10 at [52] (Button J).

38. That said, the table provided by Ms Walshe in her written submissions, MFI 1, and the response of Mr Booker in his dot points, MFI 2, do set out critical factors relating to each offence, and both were very helpful in my identification of relevant factors.

39. It is accepted by Mr Booker on the offender’s behalf that each offence was objectively serious and would have been “terrifying” for the complainants.

Objective Seriousness Assessments

Matter 1: Sue - s 66A(1) Crimes Act

40. Sue was 9, just short of the statutory threshold. She was in her own home in her own bed where she was entitled to feel safe and secure. The penetration involved movement of the offender’s fingers. There was a period, though brief, of skin-on-skin contact. The act was accompanied by a threat. It was followed by other acts intended to give the offender sexual gratification (the Form 1 matters).

41. While Mr Booker submits the act of intercourse could have been more degrading, it was still a serious example of this sort of offence.

Matter 2: Sue - s 61M(2) Crimes Act

42. The offender opportunistically used the child for his own sexual gratification. It would have been obvious to him that the child was scared, she had to be threatened to do what she did. He ignored her distress. He then further demeaned her by getting her to clean up his ejaculate. Sadly, although of short duration, this is a common example of this serious offence.

Matter 3: Sue - s 66C(2) Crimes Act

43. Again, the offender exploited his position in the household. Although the act of intercourse was relatively brief, it was accompanied by violence and involved manipulation of her vagina by his fingers. Sue was only 12. Again, sadly, while it could have been more degrading, it remains a typical example of this type of serious offence.

44. Each act against Sue occurred in her family home. The offender exploited his position as her stepfather. She was entitled to look to him for support and guidance, not abuse and violation.

Matter 4: Mary - s 66DA(a) Crimes Act

45. Mary was only 8. The offender was nearly 30 years older than the child. She was sleeping and thus particularly vulnerable. Although the act did not involve skin-on-skin contact, the act of masturbation exposed her to premature sexual activity and involved the offender’s manipulation of her for his own sexual pleasure. It was degrading. It occurred in the context of other acts, matters on the Form 1, in defiance of the child’s wishes.

46. Norton exploited his position as her stepfather. All these matters make this crime a serious example of its type.

Matter 5: Jane - s 66DB(a) Crimes Act

47. The offender sought to expose Jane to sexual activity and normalise such activity, the matter on the Form 1. It is in that context that the matter for sentence occurs. He demanded she come to him, making her particularly vulnerable to his sexual touching. By that sexual touching he abused the child. She was 12 years old. She was in no position to refuse or to stop him. He had complete disregard for her as he did with his other victims. He had no regard for her as a human being. He exploited his position as a stepfather. This was a serious example of this type of offence.

Guilty Pleas

48. When he was before the Local Court, Norton indicated at a very early stage that he would be pleading guilty to these matters. He is to be commended for doing so. In R v Thomson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383 at [3], Spigelman CJ noted three reasons why a plea of guilty should attract the lower sentence that would otherwise be imposed:

1. The plea can be a manifestation of remorse or contrition;

2. The plea has a utilitarian value to the efficiency of the criminal justice system; and

3. In particular cases, especially child sexual assault cases and / or crimes involving children, there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence.

49. The indicated sentences must reflect a reduction of 25% to take into account the utilitarian value of the offender’s guilty pleas entered in the Local Court and adhered to today: s 25D Crimes (Sentencing Procedure) Act. I have sought not to erode the benefit given for those pleas when formulating the aggregate sentence.

50. The guilty pleas here also had other values mentioned by the Chief Justice in his third point. But, on the material before me, no evidence other than the fact of the plea can be given serious weight so far as remorse or contrition is concerned, for reasons I will discuss shortly. Nevertheless, those other matters must be taken into account on sentence in addition to the utilitarian value of the plea; which is the subject of the specified discount.

The Form 1s

51. I do not sentence for the matters on the Form 1. But here they do lead to an increase in the sentence for the matter to which they relate. That increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39] to [42]. In some cases that increase can be substantial.

52. I have to take care here. Where I have taken into account Form 1 matters, to inform the objective seriousness of the matter for sentence, I should not double‑count that factor. An example perhaps is the assault on Sue, which although an independent offence taken into account on the Form 1, was also taken into account because of the violence that occurred when the matter for sentence occurred. However, there was also separate sexual offending against each child of some seriousness.

Other Relevant Matters

Victim Impact

53. On her behalf I was asked to read to the Court Sue’s victim impact statement. She told me about how the offending had affected her and how the offender had changed her life. She spoke of multiple self-harm episodes and the loss of self-respect she felt. She told me about her depression and periods she had spent getting help in hospital. She told me about her post‑traumatic stress disorder and how she did not feel comfortable or safe around men.

54. It has taken a long time, but with supportive friends and family she appears to have turned her life around and got herself better. She told me she has chosen to live her life to the full, and with help, put the trauma behind her.

55. I had no difficulty accepting what she said. It served the very practical purpose of drawing to the offender’s, the Court’s, and the community’s attention to the type of personal damage and harm caused by these crimes. Tragically, those harms are all too common responses to sexual offences against children. What she said will be taken into account in terms allowed for by the Crimes (Sentencing Procedure) Act.

56. I commend her and the other complainants for coming forward. They are believed and now the court proceedings are over they can turn the volume down and focus on their own recovery.

57. I note that the sentences I impose are only one indicator of the seriousness with which the Court views the crimes committed. A Court sentencing an offender must take into account all relevant considerations. This means that there is no way there can be a direct correlation between the harm done and the time served in gaol. That would be impossible. A complainant should not see herself as a victim, nor should she equate or measure the damage she has suffered against the punishment actually inflicted on the offender.

58. Jane and Mary did not prepare a victim impact statement. The absence of a victim impact statement does not give rise to an inference that an offence had little or no impact on a victim: s 30E Crimes (Sentencing Procedure) Act.

Offender’s Criminal History

59. Norton has no previous convictions for sexual offending or offences against children, but it is not suggested he is a person of good character. It is clear from the record before me, and the facts before me, that there was violence in the homes of each of the children; violence at his hand. He has been convicted and sentenced for offences of violence, predominantly domestic violence, including against the mothers of the complainants. He has served short periods in gaol.

60. His criminal history disentitles him to the leniency often given to first offenders. But I note that in matters such as these, it is rare to give leniency to first offenders for that reason alone.

61. He committed these offences while subject to conditional liberty in the community. He was on bail or bonds or an Intensive Correction Order (ICO). The breach of promises to be of good behaviour inherent in getting such dispositions aggravate the sentences I have to impose.

62. He was arrested on a parole warrant on 16 October 2021 for a breach of an ICO, imposed for a number of offences involving domestic violence. He did not get the opportunity to participate in any domestic violence programs. The order was breached for consistent breaches of his ICO conditions, further offending, and “negligible insight.”

63. While in custody he was arrested for these matters on 22 November 2021. He has been in custody for these matters since that date. Some of that period was concurrent with the balance of the revoked ICO. That sentence expired on 29 March 2022.

64. There should be some independent punishment for that unrelated matter, warranting a commencement date after 22 November 2021.

Maximum Penalties and Standard Non-parole Periods

65. The following penalties apply here:

• Sexual intercourse with a person under the age of 10, s 66A(1) Crimes Act, has a maximum penalty of 25 years and a standard non-parole period of 15 years. The standard non-parole period represents the non‑parole period for an offence that, taking into account only objective factors affecting the relative seriousness of that offence, is in the middle of the range: s 54A Crimes (Sentencing Procedure) Act 1999.

• Aggravated Indecent Assault of a Child under 16, s 61M(2) Crimes Act has a maximum penalty of 10 years imprisonment and a standard non‑parole period of 8 years.

• Aggravated Sexual Intercourse of a Child aged between 10 and 14, s 66C(2) Crimes Act has a maximum penalty of 20 years imprisonment and a standard non-parole period of 9 years.

• Intentionally Sexually Touch a Child under 10, s 66DA Crimes Act 1900 has a maximum penalty of 16 years imprisonment and a standard non-parole period of 8 years.

• Intentionally Sexually Touch a Child between 10 and 16, s 66DB(a) Crimes Act 1900 has a maximum period of 10 years imprisonment. There is no standard non‑parole period.

66. Careful attention to maximum penalties and standard non‑parole periods, if applicable, is required. Not just because Parliament has legislated for them. Here they provide sentencing measures to be balanced with other relevant factors. They invite comparison between the individual case and other cases. But I don’t start with the standard non‑parole period and simply oscillate around it. Nevertheless, I must give content to a standard non‑parole period while not engaging in a staged approach to sentencing: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Muldrock v The Queen (2011) 244 CLR120 at [28]. I do not have to, as I have noted earlier, compare and contrast the actual offence with some abstract one: s 54B(6) Crimes (Sentencing Procedure) Act; Tepania v R [2018] NSWCCA 247 [103] to [120].

67. I note that at the relevant time the now repealed s 61M(2) Crimes Act carried a maximum penalty of 10 years and a standard non-parole period of 8 years. The relativity between that maximum and the standard non-parole period has been described by judges sitting in Courts of Criminal Appeal as “curious” and, in one case, as “absurd”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. However, a differently constituted Court noted that as a standard non-parole period has been prescribed, it must be given effect to: R v NJK [2011] NSWCCA 151 at [40].

COVID

68. The offender has endured his entire time in custody subject to COVID restrictions, which are now notorious and well-known to the courts. He will face them again. He still faces regular lockdowns in his cell. Those lockdowns interfere with work, programs and visits. COVID causes heightened anxiety and concerns in the community, and they would be heightened by periods in custody. They are relevant factors that I synthesise along with all other matters.

Other Statutory Applicable Principles

69. Apart from the general principles in s 3A Crimes (Sentencing Procedure) Act, to which I have earlier referred, in submissions Ms Walshe referred to provisions relating to the offence occurring in the child’s home, the abuse of position of trust and authority over the child. These s 21A(2) Crimes (Sentencing Procedure) Act principles relate to my assessment of objective seriousness. “Under authority” is an element of one of the offences (sequence 6). These matters all go to the vulnerability of the children and include matters I have already taken into account. It would be wrong to double-count them by applying them again as aggravating factors. Some of the concepts are interrelated, sometimes inextricably so. I do not have to parse them, but I have sought to synthesises all relevant factors in the appropriate sentences I will indicate.

70. I must also apply what is set out in s 21B and s 25AA of the Crimes (Sentencing Procedure) Act. I have to apply the sentencing practices and patterns at the time of sentencing. But I note that these have not changed in any significant regard since 2014, when the first offence occurred. This is clear from the cases cited by the Crown in her submissions which range in time from 1991, R v Dent NSWCCA, unreported 13/03/1991, to matters I have referred to today such as Decision Restricted [2023].

71. A recent review of some matters was contained in a decision of the Chief Justice at Common Law in AB v R [2022] NSWCCA 62. The guidance offered by appellate courts and other decisions, including my own (I was referred to R v Cassell [2022] NSWDC 471, is always welcome. But as Mr Booker noted when referring to Cassell, each case and every offender is individual.

72. Sentencing is a discretionary judgment and the mix of factors that must be weighed will never be precisely the same from one sentence or one case to another: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen (2014) 253 CLR 58 at [74].

73. I must have regard to the trauma that sexual abuse causes children. Judges with the help of the Judicial Commission receive education in relation to those matters, and the longer a judge sits on the bench the more they read reports from psychologists or others in relation to the impact of child sexual abuse. I have read the Royal Commission reports.

74. There is no one group of sexually abused children. There are very few generalisations that can be made other than recognising the seriousness of the harms that can be caused. Behaviours following child sexual abuse will be varied, and the outcomes can be diverse: D T Kenny, “The Social Dynamics and Impacts of Institutional Child Sexual Abuse” (September 2017) 29 Judicial Officer’s Bulletin 8.

75. Again, I note, I do not believe there are any significant changes in the principles over the period during which these matters were committed.

Course of Conduct

76. As the prosecution point out in their submissions, while the offender did cease his activities against children, he did so only when the opportunity to do so was removed. His conduct was repeated against each female child who came into the relationships he was engaged in. The offences occurred in an atmosphere where domestic violence was prevalent in the home. At times Norton relied upon that atmosphere of violence to intimidate the children into compliance with his wishes.

Accumulation and Totality

77. There must be some accumulation of penalty to reflect, so far as Sue is concerned, the repeated offending against her. There must be accumulation to ensure that the appropriate penalty vindicates the dignity of each victim. Effective punishment must be imposed for each offence.

78. The principle of totality does operate to moderate the overall sentence. I do not simply add one matter on top of the other. Application of the principle does not mean that there is some sort of discount for multiple offending. But here the counts did have common features. The purposes of sentencing apply to each, and those purposes overlap. The totality principle also works to recognise that sometimes fixing an appropriate punishment for each offence can result in a sentence that is unduly harsh and crushing. It has to be recognised that gaols are harsh and brutal places, and that the severity of a sentence increases at a greater rate than the increase in the lengths of the sentence. For example, a sentence of 2 years has a greater impact on a prisoner than a sentence of 1 year, so far as its punitive aspects are concerned: R v Clinch (1994) 72 A Crim R 301 at [306]; MAK v R [2006] NSWCCA 381.

79. It is also important to note that for offenders such as Norton, motivation to improve and to engage with programmes is very important and critical. There is a real risk that if he spends too long in gaol he will give up and become institutionalised. The courts have experience of too many people who after release from gaol, immediately reoffend.

80. Too severe a sentence could result in a disproportionate level of punishment, and that could operate to increase his risk to community safety on release. That risk can arise if he becomes institutionalised, if the value of any steps that he has taken to promote rehabilitation diminish over time, and this is particularly so if during the course of his sentence he comes to lose motivation because he fears that any hope of normal life after the end of imprisonment might be denied him, or might be crushed; a submission made by Mr Booker.

81. A sentence should not operate to destroy prospects of rehabilitation and reform. An extremely long sentence can crush an offender’s hope for the future, induce hopelessness. But where there is a proportionate sentence or what might be seen as crushing can really depend on the perspective of the observer, whether they are the offender, offender’s victims, the community, or the appeal court; Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.

82. I also have to take into account the principle of totality when adding this sentence to one already served: R v Gordon (1994) 71 A Crim R 459 at [466]; cited with approval in Postiglione v the Queen (1997) 189 CLR 295; [1997] HCA 26. I propose to commence this sentence on 22 January 2022.

Special Circumstances

83. For each of the indicated sentences where a standard non‑parole period applies I must also indicate a parole period. I must also structure the aggregate sentence to allow a period on parole.

84. The minimum time Norton must spend in custody should adequately reflect the criminality of what he did for each offence and the other purposes of sentencing. He will not be released unless the State Parole Authority is satisfied that it is in the interests of the safety of the community: s 135 Crimes (Administration of Sentences) Act 1999 (NSW).

85. His risk of reoffending will be determined by what occurs over the next few years, and his responses to any treatment programs offered him. It is generally accepted that after a lengthy period in custody parole supervision and monitoring can assist in helping an offender adjust to living a normal community life. He will need help finding housing and with engagement n community‑based programs. All will help him, and more importantly prevent reoffending. Given his risk profile the longer and more comprehensive his supervision can be, the less likely it is he will reoffend.

86. There will be a finding of special circumstances here. It is necessary, for the reasons I have outlined, that Norton be monitored and supervised for as long as possible. But he will not be released to parole until carefully vetted by the State Parole Authority.

The Case for the Offender

87. In two comprehensive reports Ms Duffy, a forensic psychologist, summarised Norton’s background, the tests she had carried out, their results and her opinions. She put forward several propositions and recommendations for further investigation, treatment, and intervention.

88. Overall, I found her findings were balanced, based on uncontroversial material and helpful. Her professional opinion can be respected.

89. Norton was born in 1984. His mother is a Murray woman from Brisbane. His parents separated when he was young. His young life was significantly disrupted. His mother was too young to properly care for him and he spent time being looked after by a grandmother.

90. He spent time in Western Australia where his father lived. Neither parent was in a position to provide adequate care for him. He spent time in a boy’s home.

91. He reports, and I am prepared to accept even though second hand, that he was sexually abused at a children’s home when he was 8, and reports being sexually assaulted when 14 by an adult family friend.

92. At home he was exposed to alcohol abuse. For a period, he was a heavy drinker but was able stop. He is proud of that fact. He did not want to become an alcoholic like his dad.

93. However, in his 30s he developed an addiction to methylamphetamines or ice. That drug use, he told Ms Duffy, led to him having paranoid thoughts and what he described to her as an overactive sex drive. Those paranoid thoughts related to his partners.

94. He frankly conceded to Ms Duffy that when he offended, he was seeking sexual gratification without consideration for the children in his care. He told her he recognised that he had caused them some psychological damage. Told her he would apologise if he could. He expressed motivation to participate in sex offender programs.

95. Ms Duffy concluded in her first report that he satisfied the diagnostic criteria for Stimulant Use Disorder and Persistent Depressive Disorder with anxious distress. She said those criteria could be traced back to a childhood disrupted by parental separation, placement with foster families and rejection by his parents. She noted that studies have shown that high levels of insecure attachment in adulthood can be rooted in such adverse or negative childhood experiences. A study she cited linked such experiences with the development of criminogenic factors that contributed to sexually abusive behaviour. She noted Norton’s adverse childhood experiences disposed him towards the use of substances, and that under the influence of alcohol, and then ice, he had displayed distorted cognitions.

96. In her second report she was asked to amplify some of the matters in the first. She noted, despite what she had been told by the offender, that in her opinion he did satisfy the criteria for a positive diagnosis of a Paedophilic Disorder. She addressed in her reports both static and dynamic risk factors, noting the diagnosis of Paedophilic Disorder includes elements that can change over time with appropriate treatment. She concluded in her second report by noting Norton’s repeated offending behaviour over a protracted period of time is of considerable concern. It requires intervention. She says he will need to undergo more extensive assessment by Corrections’ psychologists. In her opinion it is essential that he participates in rehabilitation programs, including a comprehensive sex offender program.

87. While this is a matter for the gaol authorities to determine, she noted that he would benefit from either the High Intensity Sex Offender Program or the Moderative Intensity Sex Offender Program.

88. I note the history of drug use. I note his explanations offered to Ms Duffy. As Mr Booker accepts, and as the law provides, drug use does not excuse criminal offending. It does not excuse abusing children. It does, however, enable me to have some understanding of the man for sentence and what should occur so far as his future.

89. I note that he has taken a first step by engaging in the only drug program available to him while on remand.

Remorse

100. As I noted earlier, on the material before me, I could not find there is real evidence, other than the fact of the plea, of remorse or contrition. I accept his pleas indicate he has taken responsibility for his actions, and he did so at an early stage. I accept that, as he told Ms Duffy, he is motivated to engage in treatments. I accept that he expressed some limited insight into the effect of his behaviour on his children. But he is not yet able to fully understand himself. He is yet to have any real understanding or insight into the impact of his offending on the children in his care.

101. That conclusion leads to matters that do go to sentence and in particular his own moral culpability.

Moral Culpability

102. In a general sense, Norton’s background, and factors personal to him are relevant to his offending. But on the evidence here, I do not believe they had any substantial effect on the objective circumstances of his offending, in the sense that they are causally connected with or materially contributed to the commission of the offences. They do, however, go to his moral culpability.

103. The determination of moral culpability can involve considerations of the subjective factors affecting the offending; background, age, state of maturity, mental state, intellectual capacity and relevant past.

104. The reasons for a reduction of an offender’s moral culpability and a consequent reduction in sentence can include:

1. The effects of childhood deprivation: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37;

2. Childhood trauma, such as that here and being the victim of sexual assault: Nasrallah v R [2021] NSWCCA 207; and

3. Mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

105. Often, they are interrelated, sometimes inextricably so.

106. There is no particular evidence before me that any of those issues will make his time in custody any harder than a prisoner who did not have his background or the conditions Ms Duffy identifies. There is no particular material before me that indicates that general deterrence, that is the need for a signal to the community, should be ignored, although it could be and will be reduced.

107. There is a need here for specific deterrence. The offender has to understand the consequences of his actions affect others, and if he offends, as he did, against anyone, let alone children, he will be punished severely.

108. Mr Booker took me to evidence about the offender’s disrupted childhood and exposure to alcohol abuse and violence. He noted the childhood sexual abuse and its continuing impact on the offender, and the correlation between such abuse and the neglect and his maladaptive coping mechanisms, such as the use of drugs and alcohol. He took me to Ms Duffy’s evidence that, sadly, such adverse experiences as a child can lead to the sort of depressive disorder and the development of criminogenic behaviours, including paedophilic disorders, which she says must be investigated.

109. On balance, I am prepared to accept Norton suffered from this neglect and abuse, and he suffered tragically, as his victims did, the trauma of being sexually abused as a child, and as a consequence his sentence can be moderated.

110. But that background and his persistent offending also gives rise to risks. They were recognised by Ms Duffy. She was not “ducking responsibility” by saying further investigation was required. She recognised that she has only had brief contact with Norton and that she was preparing a report for court, not a treatment plan. She appropriately deferred to the experts who it is hoped will be in a much better position to make an assessment about him in the future.

111. An offender who had the start in life that Norton had, does not bear equal responsibility with a person who had what might be described as a normal or advantaged upbringing. That background has left a mark, it has compromised his capacity to learn from experience and common sense and common humanity dictate that he has fewer emotional resources to guide his behavioural decisions. That does not mean that Norton bears no moral responsibility, but his background can and will be taken into account: R v Millwood [2012] NSWCCA 2 at [69].

112. It is also important to note that Norton’s background makes him a possible risk on release. At best, his prospects are guarded. But it appears that he is willing to engage and has commenced that process. He might do so out of self‑interest, but it is also in the community interest he does so, because the attitudes he displayed thus far to his former partners and children in his care, indicate entrenched attitudes that must be addressed, and if they are not addressed make him a risk to the community on release. These attitudes were summarised in the prosecution’s submissions.

Submissions

113. I am indebted to Ms Walshe and Mr Booker for their comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters raised, but I have sought to consider and address them in coming to my determination about appropriate sentence.

114. Both counsel did not differ substantially on matters of principle. I raised, at the commencement of these proceedings, matters relating to the commencement date, the weight to be given to Ms Duffy’s opinion, and the question about special circumstances. They raised in submissions about where in the range of objective circumstances each offence lay.

115. Mr Booker urged on me proper consideration of the context in which the offending occurred and the fact that Norton was treating the psychological consequences in a maladaptive way. He urged I give full effect to the impact of childhood trauma.

116. Ms Walshe took me to carefully matters to I have referred. She was critical of some aspects of Ms Duffy’s report. In my opinion what Ms Duffy said was helpful. She was not parroting exculpatory statements from the offender.

117. I accept there must be some independent punishment for the matters the subject of the ICO because the offender failed to meet any conditions imposed on him. He had not been bail refused, however, for this matter it is likely he would not have been forced to serve the whole of that ICO in custody. But if the Local Court had have imposed a sentence of full time imprisonment it is likely a non‑parole period would have been fixed. I will take that into account.

Synthesis

118. I will give appropriate weight to all the mitigating factors, but they cannot be allowed to lead to a penalty which is disproportionate to the crimes he committed. In matters such as this, retribution is an important notion.

119. Retribution reflects the community’s expectation that those who offend against children will be punished and that punishment for matters such as this reflecting the maximum penalties will be severe: Ryan v The Queen (2001) 206 CLR 267; R v Windle [2012] NSWCCA 22. A proper sentence marks the Court’s view of the seriousness of the crimes individually and collectively. It should let others in the community know what will happen to them if they commit similar crimes. Although I have moderated this sentence to a degree, everyone in the community has to understand, as I said at the outset of these remarks, the consequences of offending against children both in terms of punishment to them, but most importantly, the consequences for the children involved.

120. The sentence should, so far as possible, vindicate the dignity of each complainant, express the community’s disapproval of the offending, and try and try again to protect the community from repetition of such offending: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 [52] to [58].

Orders

121. The sentence will commence on 22 January 2022. Each indicated sentence reflects a reduction of 25% for the utilitarian value of the early guilty plea. Where there is a standard non‑parole period, the non-parole period indicated reflects the finding of special circumstances, which, for transparency’s sake, allows approximately a third of the sentence on parole.

122. There will be an aggregate sentence in this matter.

123. I indicate the following sentences:

1. First matter (Sue), s 66A(1), a sentence of 6 years with a non-parole period of 3 years and 10 months.

2. Second matter (Sue), s 61M(2), a sentence of 3 years, 9 months, parole period 2 years, 5 months.

3. Third matter (Sue) , s 66C(2), a sentence of 4 years, 6 months, non-parole period 2 years 11 months. Sequence 1 takes into account the matters on the Form 1.

4. Fourth (Mary), s 66DA, a sentence of 4 years and 6 months, non‑parole period 2 years, 11 months. It takes into account the Form 1

5. Fifth matter (Jane), s 66DB(a), a sentence of 3 years and a non-parole period of 2 years.

124. The sentence is 10 years and 3 months. The non-parole period is 6 years and 9 months. It will commence on 22 January 2022. The offender will be eligible for consideration for release to parole on 21 October 2028. The balance of the term of the sentence is 3 years and 6 months. It will commence on 22 October 28 and expire on 21 April 2032.

125. To repeat, I impose an aggregate sentence, 10 years, 3 months commencing 22 January, non-parole period 6 years, 9 months, balance of 3 years, 6 months. Total sentence expires 21 April 2032.

126. I will direct that copies of Ms Duffy’s reports go with the warrant. The offender is a high-risk offender. The Crimes (High Risk Offenders) Act 2006 (NSW) applies to him.

127. Accordingly, I have to tell you, Mr Norton, that if you do not cooperate with the parole authorities, if you do not cooperate with Corrections, if it is believed that at the expiry of your sentence, or while on parole it is necessary, in the community interest, to put additional conditions on you, which may even include additional time in custody after your sentence is served, you could be at risk of either, not being released, or having additional conditions placed upon you. I am sure that will be explained to you, the consequences. But at the moment it appears your motivation is solid.

128. Secondly, you will be on a sex offender register. I cannot take either of those matters into account, but you should be aware of the important consequences on release of obeying all directions so far as that register is concerned. Otherwise again, you could be returned to custody.

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Decision last updated: 09 August 2023