R v OA (pseudonym) - [2019] NSWDC 264

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v OA (pseudonym) [2019] NSWDC 264
Hearing dates: 16 April and 24 May 2019
Decision date: 18 June 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 14 years with a non parole period of 9 years 6 months.

Catchwords: CRIME - Sentence - act of indecency with a person under 10 years of age - sexual intercourse with a person under 10 years of age - indecent assault on a person under 10 years of age - aggravated act of indecency towards person under 16 years of age and under authority - indecent assault on a person under 16 years of age - sexual intercourse with a person over 14 years but under 16 years of age.
Legislation Cited: Crimes Act 1900 (NSW), s.61O(2), 66A, 61M(2), 61O(1), 66C(3)
Cases Cited: Royal Commission into Institutional Responses to Child Abuse, opening address
Category: Sentence
Parties: Regina (Crown)
OA (pseudonym) (Offender)
Representation:
Mr Paish (Crown Prosecutor)
Mr Peluso (Counsel for the offender)

File Number(s): 2018/74390
Publication restriction: Non publication order of the names of the offender, the offender's 2 partners, the names of the 3 victims or anything that might, directly or indirectly, identify any of them.

Judgment

OA, you appear for sentence in relation to nine principal offences of sexual misconduct against your three children which you committed in the period December 1999 to November 2017.
To the extent necessary, I confirm the non-publication order previously made of the names of your victims, and any other information which might identify them, directly or indirectly, including your name.
Four of those principal offences involved you committing an act of indecency with or towards a person under 10 years or age. These are Counts 1, 2, 5 and 6 (sequences 17, 19, 23 and 24).
These involve contraventions of s 61 O (2) of the Crimes Act. The maximum penalty for each of these offences is 7 years imprisonment. There is no standard non-parole period.
One of the principal offences involved you having sexual intercourse with a person under 10 years of age. This is Count 3 (sequence 4).
This involves a contravention of s 66 A of the Crimes Act. The maximum penalty for that offence is 20 years imprisonment. There is no standard non-parole period.
Another principal offence involved you committing an indecent assault on a person under 10 years of age. This is Count 4 (sequence 22).
This involves a contravention of s 61 M (2) of the Crimes Act. The maximum penalty for this offence is 10 years imprisonment.
This offence took place somewhere between 17 December 1999 and 17 December 2003. As from 1 February 2003 there was a standard non-parole period of 5 years imprisonment. As I am unable to be satisfied beyond reasonable doubt as to where, within this timeframe, the offence occurred, I do not propose to take into account the standard non-parole period.
Another principal offence involved you committing an aggravated act of indecency towards a person under 16 years of age and whilst that person was under authority. This is Count 7 (sequence 11).
This involves a contravention of s 61 O (1) of the Crimes Act. The maximum penalty for this offence is 5 years imprisonment. There is no standard non-parole period.
Another principal offence involved you committing an indecent assault upon a person under 16 years of age. This is Count 8 (sequence 26).
This involves a further contravention of s 61 M (2) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. There is a standard non-parole period of 8 years imprisonment.
The final principal offence involved you having sexual intercourse with a person over the age of 14 years but under the age of 16 years. This is Count 9 (sequence 14).
This involves a contravention of s 66 C (3) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. There is no standard non-parole period.
In addition to these nine principal offences, you have asked me to take into account three matters on three Form 1s which I have certified.
The first Form 1 is to be taken into account with Count 1. The matter on that Form 1 is committing an act of indecency with a person under 10 years of age (sequence 18).
The second Form 1 is to be taken into account with Count 3. The matter on that Form 1 is also committing an act of indecency with a person under 10 years of age (sequence 20).
The third Form 1 is to be taken into account with Count 9. The matter on that Form 1 is an indecent assault on a person under 16 years of age (sequence 27). I note that this Form 1 matter is incorrectly referred to in the Crown’s sentencing summary cover sheet as “aggravated” indecent assault.
The facts surrounding the nine principal offences and the three matters on the relevant Form 1 are contained in an agreed statement of facts. Recast by me as to style but not substance they are as follows.
You were born in July 1970.
In about 1989 (when you were 19 years old) you married a young lady. In December 1993 a daughter was born to that marriage. I shall refer to her by the pseudonym “Samantha”. You were about 23 years of age when she was born.
You separated from your wife when Samantha was two years old. Samantha went to live with her mother and you had no contact with her until she was five years old.
When Samantha was 5 years old, at your request, you started to visit her at your parents’ home in a Sydney suburb on Saturdays.
During these visits to your parents’ home, you started watching pornography in Samantha’s presence. You masturbated whilst you were watching that pornography and whilst she was sitting next to you. By the time Samantha turned 6 you started touching her breasts, her backside and her vagina. There is no suggestion that your parents were aware of your criminal activity.
At some time precisely not disclosed in the agreed facts, you commenced a de facto relationship with another lady.
Two children were born to that relationship. A son (whom I shall refer to by the pseudonym “John”) was born in October 2000 and a daughter (whom I shall refer to by the pseudonym “Nicole”) was born in April 2002. You lived with this lady and those two children until the lady died in October 2013. Following her death, you were the sole carer for John and Nicole.
The following facts relate to the first of the four principal offences of committing an act of indecency with a child under 10 years of age (Count 1: sequence 17) as well as the matter on the relevant Form 1 (sequence 18).
On an occasion when you were visiting Samantha at your parents’ home, you and she were clothed and lying on a bed in the spare room. You pulled your pants down to your knees and thereby exposed your penis. You told your daughter to lick it. Samantha was reluctant to do this, but you exploited the fact that she wanted a particular toy to persuade her to start licking the tip of your penis whilst you masturbated. After a time, which is not specified in the facts, Samantha stopped licking you, but you continued to masturbate until you ejaculated on your stomach.
After you cleaned yourself, you told her that you loved her and that you were sorry for what you had done.
It was the persuading of Samantha to lick your penis which is the principal offence; it is the continuation of your masturbation in her presence which is the matter on the Form 1. Because of the nature of the matter on the Form 1 there will be a meaningful increase in the sentence.
I pause to observe that it is agreed that, in addition to this instance, you had bought Samantha other toys for performing similar acts which are not the subject of any principal offence nor Form 1 matter.
The following facts relate to the second principal offence of an act of indecency towards a child under 10 years (Count 2: sequence 19).
There was another occasion when Samantha was somewhere between 6 and 8 years of age when you and she again were in the spare room at your parents’ home. She wanted you to buy her a toy. You told her that if she took her clothes off, and let you watch her, you would take her shopping afterwards. Samantha did take her clothes off and stood in the middle of the room naked. You then masturbated until you ejaculated on yourself in her presence.
The following are the facts in relation to the principal offence of sexual intercourse with a person under 10 years of age (Count 3: sequence 4) and the matter on the relevant Form 1 being an act of indecency towards a child under 10 years (sequence 20).
On a third specific occasion, you and Samantha were in the spare room at your parents’ home.
On this occasion you were both in the bed and under the covers watching a movie. Samantha was wearing pyjamas.
During the course of the movie, you reached under her pyjama top and started touching and grabbing her chest. You then took that pyjama top off and started sucking her nipples. You then used one hand to grab at her chest; with the other, you masturbated yourself.
You then pulled Samantha’s pyjama pants down to her ankles and, whilst you were still masturbating, you licked her vagina.
It is the licking of Samantha’s vagina which constitutes the principal offence of sexual intercourse. It is your masturbation in her presence which constitutes the act of indecency on the Form 1. Because of the nature of the matter on the Form 1 there will be a meaningful increase in the sentence.
I note you have not been charged with any criminal offence in relation to your touching Samantha’s chest or sucking at her nipples.
The following are the facts in relation to the principal offence of indecent assault with a child under 10 years (Count 4: sequence 22).
On another occasion, you were with Samantha in the spare bedroom in your parents’ home when she was 7 years old.
You were both under the bed covers.
Samantha was wearing a tracksuit and underwear.
Whilst you were under the covers, you licked your fingers and put your hand down the front of her clothing and inside her underwear. You used your fingers to rub the outside of her vagina. Samantha pulled your hand away.
The agreed facts state that incidents, such as the ones I have described, continued until Samantha was about 12 or 13 years of age.
The incidents, the subject of these charges involving Samantha, were, therefore, not isolated incidents.
Samantha revealed your abuse of her to her uncle when Samantha was 21 years old.
The following are the facts in connection with the third principal offence of committing an act of indecency towards a child under 10 years (Count 5: sequence 23).
When Nicole was about 7 years of age, she was at home alone with you. You were both in a room where a computer was located, and that computer was on a desk in front of you both.
You screened adult pornography on that computer and masturbated whilst Nicole was sitting beside you. Although the agreed statement of facts do not expressly say so, the only rational inference in the circumstances is that Nicole also saw that pornography.
The following are the facts in relation to the fourth principal of committing an act of indecency towards a child under 10 years of age (Count 6: sequence 24).
This incident also occurred when Nicole was about 7 years of age and at home with you.
On this occasion, you were both in your bedroom.
You showed Nicole a condom and you asked her whether she would suck on it if you put it on. Nicole refused.
Whilst all of this was occurring, you were rubbing your penis – although the agreed facts do not state whether that was from the outside of your clothing or otherwise. Because this would be an aggravating fact, which has not been proved beyond reasonable doubt, I shall assume it was from the outside.
The following are the facts in relation to the principal offence of aggravated act of indecency towards a child under 16 years (Count 7: sequence 11).
Somewhere between September 2011 and October 2013, when Nicole was between 9 and 11 years of age, you and she were again in your bedroom.
You undressed Nicole, after which you were sitting on the bed behind her whilst she faced in the opposite direction.
You started rubbing her back and bottom with one of your hands.
Nicole looked over her shoulder and saw that you were masturbating using your other hand.
After a time, you ran from that bedroom to the bathroom. Nicole followed and saw you ejaculate into the bathroom sink.
The following are the facts in relation to the principal offence of indecent assault with a person under 16 years (Count 8: sequence 26).
When John was about 13 years of age, you and he were watching a movie together at your home.
Whilst you were watching the movie, you reached over and put your hand on John’s genitals on the outside of his clothing. You then moved your hand around, rubbing John’s genitals.
John pushed your hand away and left the room.
The following are the facts in relation to the final principal offence of sexual intercourse with a person over the age of 14 years but under the age of 16 years (Count 9: sequence 14), and the relevant Form 1 matter of indecent assault with a person under 16 years (sequence 27).
In November 2017, when Nicole was about 15 years of age, she was in bed in the early hours of the morning when she heard you come into her bedroom. She was lying on her side, facing the wall, and she pretended to be asleep.
Nicole felt a light touch on her arm which developed into a rubbing of her back.
You continued to rub her back and, in so doing, your hand moved closer and closer towards her breasts.
Nicole was wearing a t-shirt, a bra, underwear and jeans, and the bed covers were pulled up over her.
The fact that Nicole was wearing jeans whilst trying to sleep in her own bedroom is noteworthy.
You pulled the covers down and your hands went under her t-shirt and bra and you rubbed her naked breasts.
You returned to rubbing her back. Your hand moved onto her backside, which you then rubbed.
You then climbed onto the bed behind Nicole. She could feel your stomach against her back. She continued to pretend to be asleep.
You then pushed her jeans and underwear down past her backside. You rubbed your hand on the outside of her vagina before inserting one of your fingers into her vagina. The agreed facts do not state for how long your finger was inside her.
Nicole heard you pulling your pants down and she was aware that you were pulling your penis out and that you were rubbing it against her anus.
You continued to rub your penis up and down her bottom for some time before you stopped.
You then pulled her pants up and her t-shirt down and you left the room and went to the bathroom.
It is the insertion of your finger into Nicole’s vagina which constitutes the principal offence of sexual intercourse; and it is the touching of her breasts and rubbing of her backside which constitutes the indecent assault on the relevant Form 1. Because of the nature of the matter on the Form 1 there will be a meaningful increase in the sentence.
Immediately after you left Nicole’s room, she sent a text message to one of her friends and, as a result of this, your offending conduct was quickly brought to the attention of other family members and the police in late November 2017.
For reasons not explained in the agreed statement of facts, you were not arrested until 7 March 2018.
You have been in custody continuously since that date, solely referrable to the matters presently before the Court, and, accordingly, the sentence date which I shall ultimately impose will be backdated to that date.
It is necessary for the Court to make a finding of the objective seriousness for each offence for an offence of its kind.
In this regard, your counsel submitted that each offence was a mid-range offence.
The Crown prosecutor generally agreed with that submission - with the following exceptions. He submitted that Count 3 was mid-range or just below; Count 4 was very close to the top of the range; and Count 5 was, at least, mid-range.
In my opinion all, except Counts 4 and 5, are mid-range offences; Counts 4 and 5 are above the mid-range but not at the upper-end of the range.
There are no victim impact statements from any of the three victims of your offending.
It is, therefore, difficult for me to know the extent to which you have inflicted psychological damage to them. Your counsel quite properly conceded that, undoubtedly, some psychological harm would have been done to each of your three victims, but the extent of that harm is not known to me. That being said, I am entitled to have regard to what the President of the Royal Commission into Institutional Responses to Child Abuse said in his Honour’s opening address:

“What many may consider to be low levels of abuse of boys and girls can have catastrophic consequences for them, leading to a life which is seriously compromised from what might otherwise have been. Both boys and girls are left with a distrust of adults and difficulties with intimacy. Inappropriate touching of boys may leave them with confusion as to their sexual identity. This can result in life-long difficulty in relationships which can cause problems in other aspects of their lives. Although the impact on the lives of abused persons has been reported within the academic literature, I have no doubt that it is not well understood by the general community. In my role as a Judge I have been called upon to review many of the sentences imposed upon people convicted of the sexual abuse of children but I readily acknowledge that, until I began my work with the commission, I did not adequately appreciate the devastating and long-lasting effect which sexual abuse, however inflicted, can have on an individual’s life.”

With the exception of Count 7, each of the offences additionally is aggravated by the fact that you grossly abused a position of trust in relation to each of your victims.
Furthermore, the offences involving Nicole and John additionally are aggravated by the fact that the offences occurred in their home.
Although the offences against Samantha were committed in her grandparents’ home, that home should properly be regarded as an extension of her own home, and, accordingly, I regard the fact that they occurred there as an additional aggravating factor.
You are now 49 years of age.
You were born in Sydney.
You grew up in a loving and supportive family.
You attended most of your primary and most of your secondary school in Sydney, although there was a time when your family moved to Turkey for three years and you did further High School there.
You returned to Australia and enrolled in Year 11. However, you left school at the end of Year 11.
Since leaving school, you have been in consistent employment, including long-term employment as a well-respected bus driver.
Although your family life was loving and supportive, you were exposed on a number of occasions – not by your parents – to inappropriate sexual behaviour and you were sexually abused as a child and as an adolescent.
The details of those matters are contained in the report of Ms Howell, the impressive forensic psychologist who prepared a report for the sentence proceedings and who also gave invaluable oral evidence in those proceedings.
The quote that I read out earlier from the President of the Royal Commission, in the context of you sexually abusing your children, is just as applicable to the sexual abuse that you underwent as a child. In your case, however, the consequences to you had been more idiosyncratic. You do not have PTSD or a similar commonly seen condition as a result of childhood trauma, nor have you abused alcohol or illicit drugs in order to self-medicate against the harm inflicted on you as a child. You have been capable of having normal adult heterosexual relations with your two partners. But the experience of your own sexual victimisation means that, although you have some insight into your offending conduct, you remain captured by your own victimisation. In part this means that, even now, you do not have a full appreciation of how, despite your belief that you love your children, you have severely injured them.

You have not received any treatment yourself for the sexual abuse that you received as a child and I am satisfied, on the basis of the evidence of Ms Howell, that there is a causal connection between that abuse and your sexual abuse of your own children.
Moreover, I am satisfied on the basis of her evidence that you are, to use her word, “treatable”, and that it is vitally important that you participate in the CUBIT Program conducted by the Department of Corrective Services. Furthermore, if that program is not made available to you, or if you do not successfully complete it, I am satisfied that you present an ongoing risk, not to children generally in the community, but to your own children and any grandchildren that you may have.
In making that last observation, however, it seems highly unlikely that you will have any access in the future to your (now adult) children or to any grandchildren – but the risk of reoffending remains real unless, and until, you have received and successfully completed that treatment.
You have expressed remorse for your actions. In this regard, at face value, that expression of remorse might seem qualified. However, when one reads fully the evidence of Ms Howell, I have come to the conclusion that the remorse is genuine.
Your prospects of rehabilitation, therefore, remain significantly guarded unless, and until, you successfully complete the CUBIT Program.
In coming to my conclusion about your prospects for rehabilitation, I have noted that you have only one matter on your criminal history which was of a relevantly minor matter.
Although an absence of prior offending is of lesser significance for child sexual offences, it is still a relevant consideration and some leniency will be extended to you by that lack of prior offending. But of course, the benefit of such leniency diminishes exponentially with each offence after the first principal one.
Because of your own sexual abuse as a child and the consequences to you as a result of it, considerations of general deterrence are somewhat reduced. However, considerations of specific deterrence and the protection of the community remain fully engaged.
No sentence other than a sentence of full-time imprisonment is appropriate for any of the individual offences and the contrary was not submitted by your counsel.
I intend imposing an aggregate sentence.
Accordingly, it is necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence.
In relation to the indicative sentences, you will receive a 25 percent discount for the utilitarian value of your early plea.
Further, because of your age, and the fact that this will be your first time in custody, and because your prospects of rehabilitation would be enhanced by a longer period on parole, I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period – but the reduction will not be such as to understate the seriousness of your objective criminality. I note that the Crown has supported a modest adjustment for special circumstances.
In relation to Count 1, the indicative sentence after the discount of 25 percent is 4 years 6 months imprisonment.
In relation to Count 2, the indicative sentence after the discount of 25 percent is 3 years imprisonment.
In relation to Count 3, the indicative sentence after the discount of 25 percent is 6 years imprisonment.
In relation to Count 4, the indicative sentence after the discount of 25 percent is 3 years 9 months imprisonment. The indicative non-parole period is 2 years 5 months.
In relation to Count 5, the indicative sentence after the discount of 25 percent is 3 years 9 months.
In relation to Count 6, the indicative sentence after the discount of 25 percent is 3 years imprisonment.
In relation to Count 7, the indicative sentence after the discount of 25 percent is 2 years 3 months imprisonment.
In relation to Count 8, the indicative sentence after the discount of 25 percent is 3 years imprisonment. The indicative non-parole period is 1 year 11 months.
In relation to Count 9, the indicative sentence after the discount of 25 percent is 4 years 6 months imprisonment.
By having regard to the notion of totality there would have been meaningful accumulation of these indicative sentences but for the aggregate sentence.
OA, of the four offences of committing an act of indecency with or towards a person under 10 years, the offence of sexual intercourse with a person under 10 years, the offence of indecent assault of a person under 10 years, the offence of aggravated act of indecency towards a person under 16 years, the offence of indecent assault towards a person under 16 years, and the offence of sexual intercourse with a person over the age of 14 years but under the age of 16 years, you are convicted.
I sentence you to a term of imprisonment of 14 years.
I fix a non-parole of 9 years 6 months to date from 7 March 2018 and which will expire on 6 September 2027.
I fix a balance of 4 years 6 months to date from 7 September 2027 and which will expire on 6 March 2032.

Amendments

27 June 2019 - added party to coversheet

Decision last updated: 27 June 2019

Medium Neutral Citation:	R v OA (pseudonym) [2019] NSWDC 264
Hearing dates:	16 April and 24 May 2019
Decision date:	18 June 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 14 years with a non parole period of 9 years 6 months.
Catchwords:	CRIME - Sentence - act of indecency with a person under 10 years of age - sexual intercourse with a person under 10 years of age - indecent assault on a person under 10 years of age - aggravated act of indecency towards person under 16 years of age and under authority - indecent assault on a person under 16 years of age - sexual intercourse with a person over 14 years but under 16 years of age.
Legislation Cited:	Crimes Act 1900 (NSW), s.61O(2), 66A, 61M(2), 61O(1), 66C(3)
Cases Cited:	Royal Commission into Institutional Responses to Child Abuse, opening address
Category:	Sentence
Parties:	Regina (Crown) OA (pseudonym) (Offender)
Representation:	Mr Paish (Crown Prosecutor) Mr Peluso (Counsel for the offender)
File Number(s):	2018/74390
Publication restriction:	Non publication order of the names of the offender, the offender's 2 partners, the names of the 3 victims or anything that might, directly or indirectly, identify any of them.