R v Parese

[2024] NSWDC 65

District Court

New South Wales

Medium Neutral Citation:

R v Parese [2024] NSWDC 65

Hearing dates:

23 February 2024

Decision date:

14 March 2024

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

1. The offender is convicted on all offences.

2. The aggregate sentence imposed is 28 years imprisonment with a non-parole period of 18 ½ years to date from 5 May 2020. Sentence will expire on 4 May 2048 and the offender is eligible for release to parole on 4 November 2038.

Catchwords:

SENTENCING – cognitive impairment – sexual offences – moral culpability – breach of conditional liberty – aggravated sexual assault – aggravated indecent assault – aggravated incite sexual touching – assault occasioning actual bodily harm – sexual intercourse with a person with a cognitive impairment – steal property in a dwelling house – armed with intent to intimidate – use offensive weapon with intent to steal from dwelling – demand property with menaces – common assault – damage property

Legislation Cited:

ss 33B(1)a), 37(1), 59(1), 61, 61J(1), 61KD(1)(b), 61M(1), 66F(3), 95(1), 99(1), 114(1)(a), 148, 195(1)(a), Crimes Act 1900 (NSW)

s25C Crimes (High Risk Offenders) Act 2006 (NSW)

Category:

Sentence

Parties:

Rex;
Francesco Parese

Representation:

Counsel:
Crown: Ms J Smith
Defence Mr A Parsons
Solicitors:
Crown: Ms N Carter
Defence: Mr N Digges

File Number(s):

2020/71071

Publication restriction:

Statutory non-publication order re complainants’ identity and/or anything that may identify them. Non-publication order in relation to part of Dr Chew’s report contained in para [162] - redacted

JUDGMENT

1. The offender, Francesco [Frank] Parese, appears for sentence after jury verdicts.

2. On 27 February 2023 the offender pleaded not guilty to 64 counts, with 23 of these counts being pleaded as alternative counts. Most of the counts were sexual offences.

3. The jury returned verdicts of guilty on 34 counts, with one of these being to an alternative count. There were 7 verdicts of not guilty which includes both the principal and alternative counts for two incidents.

4. The offences relate to four separate victims, and cover offending between mid-2017 to early 2020. The victims will be identified by their initials, following the order of offences as GB, BG, CW and MG.

5. The offences for sentence, as set out in the Crown summary, are:

GB
Count 1:  Damage Property $2000	s195(1)(a) CrimesAct	5 years Imprisonment	No SNPP
Count 2: Common Assault	S61 CrimesAct	2 years Imprisonment	No SNPP
Count 3: Use offensive weapon to intimidate	S33B(1)(a) CrimesAct	12 years imprisonment	No SNPP
Counts 4, 7, 9, 11 and 13: Agg Sexual Assault, Cognitive Impairment	S61J(1) CrimesAct	20 years imprisonment	10 year SNPP
Count 6: Intentionally Choke	S37(1) CrimesAct	10 years imprisonment	No SNPP
BG
Count 16: Demand Property with Menace intent to steal (money)	S99 (1) CrimesAct	10 years imprisonment	No SNPP
Count 17: Agg Robbery, inflict ABH	S95(1) CrimesAct	20 years imprisonment	No SNPP
Counts 18, 20, 22, 24, 26 & 28: Agg Sexual Assault, Cognitive Impairment	S61J(1) CrimesAct	20 years imprisonment	10 year SNPP
Count 30: Use offensive weapon to CSIO (stealing)	S33B(1)(a) CrimesAct	12 years imprisonment	No SNPP
Count 31: Armed with a weapon (scissors) w intent to CSIO (intimidation)	S114(1)(a) CrimesAct	7 years imprisonment	No SNPP
Count 32: Steal from Dwelling >$5000 <$15,000	S148 CrimesAct	7 years imprisonment	No SNPP
CW
Count 33: Agg Indecent Assault, Cognitive Impairment	S61M(1) CrimesAct	7 years imprisonment	5 year SNPP
Counts 34, 36, 38: Agg Sexual Assault, Cognitive Impairment	S61J(1) CrimesAct	20 years imprisonment	10 year SNPP
Count 41: Sexual Intercourse with Person with a Cognitive Impairment	S66F(3) CrimesAct	8 years imprisonment	No SNPP
MG
Count 42: Agg Incite Sexual touching, Cognitive Impairment	S61KD(1)(b) CrimesAct	7 years imprisonment	5 year SNPP
Counts 43, 46, 48, 50, 54 & 61: Agg Sexual Assault, Cognitive Impairment	S61J(1) CrimesAct	20 years imprisonment	10 year SNPP
Count 45: Agg Incite Sexual touching, Cognitive Impairment	S61KD(1)(b) CrimesAct	7 years imprisonment	5 year SNPP
Count 52: AOABH	S59(1) CrimesAct	5 years imprisonment	No SNPP

6. Both the maximum penalty and where applicable the standard non-parole period provide guidance as to the seriousness of an offence. Both operate as yardsticks.

7. Given the large number of counts, the Crown provided MFI 79 to the jury during the trial. This listed the counts on the indictment, a brief description and transcript references. I am assisted by this document. I am also assisted by the summary of the offences provided in the submissions provided by the Crown. The offender accepted the summary of offences provided by the Crown to be accurate. I therefore propose to adopt that summary and to supplement it where necessary. I also incorporate aspects of the Crown submissions addressing evidence. If I include a portion it reflects that I am satisfied of the fact[s] beyond reasonable doubt.

8. As this is a sentence after trial, I am required to determine the facts for sentence that are not inconsistent with the verdicts. I am mindful of the differing onus and standard that applies dependent upon aggravating and mitigating findings.

9. Most of the offences are sexual offences and a significant part of my consideration will address those counts, particularly in focussing upon common characteristics.

10. I am required to identify the facts found and to assess the objective seriousness. Although many offences are informed by a standard non-parole period, I am not required to utilise terminology reflecting an assessment of where an offence falls in relation to the mid-range. Neither counsel has done so.

Age

11. All of the victims were adults. In relation to GB, between 13 July 2017 and 1 October 2017 the offender was aged 38 and GB was aged 43 and 44. In relation to BG, between 24 November 2018 and 2 December 2018 the offender was aged 39 and BG was aged 41. In relation to CW, between 25 November 2018 and 28 November 2018 the offender was aged 39 and CW was aged 27. In relation to MG, between 28 February 2020 and 1 March 2020 the offender was aged 41 and MG was aged 39.

12. GB, CW and MG are female and BG is male.

Cognitive impairment

13. Three of the victims [those other than GB] were accepted by the offender to be cognitively impaired based upon cognitive functioning. The verdicts of the jury reflect an acceptance beyond reasonable doubt of the cognitive impairment. The fourth victim, GB, was said to be cognitively impaired based on mental illness. The offender did not accept that this victim was cognitively impaired. The verdicts of the jury reflect this was proven beyond reasonable doubt.

14. Although each suffered a cognitive impairment, each was living in the community and functioning in that environment with different levels of success. GB and MG were homeless. Both used illicit drugs. CW was in assisted care. GB was self-sufficient, with a stable job, although reliant on family support. Each was objectively vulnerable.

15. The impairment of each victim was readily discernible with sufficient exposure. I accept the offender assessed each victim through his drug hazed spectrum. The offender had sufficient exposure. GB’s impairment presented as the least detectable initially although it became more evident with longer exposure. The offender was also told of her childhood sexual abuse so at the very least was also aware of the vulnerability this caused. The offender sent texts acknowledging his awareness of BG’s limitations. He was expressly told about CW’s limitations. I observe the limitations were evident. The jury returned a verdict on count 41 indicating satisfaction the offender knew of CW’s cognitive impairment and that he took advantage of it. MG’s presentation was noted by others who interacted with her for less time than the offender.

16. I am satisfied that:

• GB had a cognitive impairment because of her severe mental illness. GB had ADHD, complex trauma, depression, borderline personality disorder and obsessive-compulsive disorder. She had attempted suicide many times.

• BG has a mild intellectual disability and cerebral palsy. BG has little or no insight into his intellectual disability. Although he works and lives alone, he receives significant support from his four siblings and his finances are organised so that he can only access relatively small amounts of money for living expenses without a co-signatory. Dr Pullman described BG as concrete in his thinking, trusting, gullible and vulnerable with very limited ability to think in abstract terms and find solutions to problems.

• CW suffered an acquired brain injury as a young child and has a moderate intellectual disability which meant that 99.9% of the population are able to function more effectively in the community than her. CW has also been diagnosed with complex trauma and dissociative syndrome. CW is anxious, cannot pay attention for long, gets confused and cannot function independently. CW relies heavily on other people for guidance when she finds it difficult to process what’s going on, to remember or to solve a problem.

• At the age of 23, MG was in a serious car accident and suffered a traumatic brain injury. MG was subsequently diagnosed with schizoaffective disorder, bipolar disorder and complex post-traumatic stress disorder against a background of traumatic brain injury. MG’s verbal comprehension fell in the extremely low range at the 1^st percentile. MG’s non-verbal reasoning skills were in the low range and her auditory attention span in the borderline range. MG’s adaptive functioning was in the extremely low range scoring between the 0.1 and 0.5 percentiles. MG satisfied the criteria for a major neurocognitive disorder due to traumatic brain injury. She lived in a 24-hour supervised residential facility for two years before moving back to Grafton at the end of 2019. After living with her parents in Grafton, she was asked to leave in early February 2020 and at the time she met the offender in late February was homeless.

17. All were vulnerable because of this aggravating element. Each was capable of making ‘independent’ decisions although each was compromised by the limitations associated with their cognitive impairment. Independent decisions were not necessarily informed or prudent. I note the submission on behalf of the offender that GB’s cognitive impairment fell towards the less severe end of the definition and the submissions on degrees of disability. I do not apportion a varying degree of vulnerability based on how the vulnerability was manifested. I am satisfied beyond reasonable doubt that the offender knew each suffered from cognitive limitations although not necessarily the nature or extent of an associated limitation. This subjective belief was not an element for most of the sexual assault offences for sentence, noting count 41 reflects the jury satisfaction of knowledge of CW’s cognitive impairment.

18. Cognitive impairment was an important issue in the trial beyond it being an element in a number of offences. It informed how the victims gave evidence and how they were questioned. Each was assisted in the remote room by a support person familiar with the particular needs as to the manner of questioning. This presence, and the provision of reports prior to the evidence, ensured each victim was able to comprehend the questioning, process information and respond to the best of their ability.

19. During the trial, counsel for the offender agreed to the witnesses being assisted by a qualified support person who assisted both the witnesses and the advocates in the structure of questioning. This course was of utilitarian benefit to the progress of the matter and warrants some non-quantified amelioration to sentence.

Relationship and isolation

20. I am assessing the environment in which offending occurred.

21. The offending involving GB occurred within a 3 month period on separate occasions. There was initial limited consensual sexual activity. They cohabited. The relationship soon developed into one of intimidation and violence within a domestic setting.

22. The offending involving BG commenced with consensual sexual activity. It became financially exploitative and non-consensual. The non-consensual acts occurred within a week period on separate occasions.

23. The offending involving CW occurred on the one occasion. They met through a mutual friend. The offending involving CW occurred within the period the offender offended against BG.

24. The offender recruited MG to drive his car in exchange for payment. The offences occurred in different locations over a three day period.

Duration

25. The evidence unsurprisingly did not disclose the precise duration of all incidents. Some acts were relatively brief, whilst others were described as particularly prolonged. There was evidence in the trial that the offender was capable of prolonged fellatio without ejaculation due to his drug use. It was indicated on occasion he forced acts of fellatio that were prolonged. Evidently, where a lengthy act is described, it presents as more serious than a similar brief act.

Knowledge

26. For offences involving the offender’s knowledge of lack of consent I am required to determine whether the offender actually knew or was reckless to the absence of consent.

27. I have specifically considered the offending upon CW and MG in appreciation of the different verdicts. I consider the mixed verdicts indicate a failure to be satisfied beyond reasonable doubt that the offender was aware of the absence of consent on occasion.

28. I have also been careful to consider that his interaction with GB and BG initially involved consensual sexual activity.

29. At the time of the incidents connected to the counts, there was no interaction supportive of consensual activity. The acts were brutal and forceful. He was exploitative in taking what he wanted.

30. In considering the sexual offences involving knowledge of lack of consent, other than for count 48, I am satisfied the offender actually knew of lack of consent.

Cruelty

31. The Crown does not suggest the aggravating feature of gratuitous cruelty applies. Each victim was treated with disdain and as a sexual commodity. That is often but not always existent in sexual assaults.

32. After GB consensually performed fellatio on the offender for the first time, she told him that she didn’t like it because when she was 5 years old her uncle used to make her suck his penis and it brought a lot of those memories back. A few days later the offender made her suck his penis and told her that he knew she liked it that way and because she had done it for her uncle she could do it for him. This was intentionally cruel.

33. The offender manipulated BG into providing him with money.

34. Each offence entailed aspects of cruelty or occurred within other acts that entailed cruelty or disregard. He persisted over objection and he persisted even when victims vomited or gagged. His phone records reflect an interest in fellatio involving ‘gagging’. This was his sexual interest and one he was entitled to engage in with consenting adults; these victims did not share this interest and were not consenting.

35. Although offending evidenced disregard or cruelty it was not at a level to be a circumstance of aggravation.

Type of sexual act

36. Most of the sexual acts involved fellatio. There are also acts of penile / anal penetration and digital/ genital penetration. There is no set hierarchy dependent upon the type of penetrative act. It is one of the circumstances to be taken into account. For acts of sexual touching, the area touched and whether it was directly to skin or through clothing are relevant considerations.

Planning

37. It is submitted on behalf of the offender that the offences were impulsive or lacked planning. The facts reflect that he intentionally approached persons with an obvious vulnerability, through situational homelessness or obvious cognitive impairment. I have contemplated whether given the offender’s lifestyle, including a significant drug abuse issue and lack of accommodation, placed him in situations where the persons he met were persons such as the victims. However, he met CW through a mutual friend and BG through an online site. He met GB though social media. Their individual circumstances would have been evident to him and he pursued contact with each. I am satisfied he contemplated sexual contact with each. The general observation is that he did not regard consent as a pertinent consideration in his personal interactions.

38. Each occasion is impulsive if that denotes acting on impulse, in this case a sexual impulse. Certainly, there was no planning or preparation to commit specific offences. The individual offending was not planned but opportunistic.

The offences

39. I shall address the features of the individual offences, which are informed by the general observations. I shall address them chronologically, following the Crown’s approach.

GB

40. The offender met GB on social media and shortly afterwards she travelled to Ballina to stay with him. GB had recently had her son removed from her.

41. GB used methylamphetamine before meeting the offender and her use escalated when they were together. The offender used ice frequently.

42. GB described a relationship where the offender frequently verbally and physically abused her and sought to control her.

43. The offender called her “the tranny”, a ‘slut’ and a ‘dog’ among other names. He told her she was ‘dirty’ and ‘putrid’.

44. The offender knew GB did not know anyone in the area. Within a very short time, the offender sought to control her. GB stated that the offender controlled “pretty much where to look, where not to look. Who to talk to, who not to talk to. How to dress, how to talk, yeah, there’s a lot of things.” He also threatened he could kill her and her family wouldn’t know.

45. The motel manager hardly ever saw GB outside when she lived there and did not go to that part of the motel often but when he did, he would sometimes hear the offender yelling abuse to her behind closed doors, “it was very abusive, abrupt and loud”.

46. The offender carried a knife in his Nike bag and “put it out” by putting it on a table or holding it when talking to her at times to intimidate her.

Count 3 – Use offensive weapon (knife) to commit intimidation

47. A few weeks after moving into the motel with the offender, the offender became upset after looking at GB’s phone and seeing photos of a male GB knew before she had met the offender. The offender was calling her a slut and other names. The offender forced her to delete everything on her phone including photos of her children by holding a knife to her throat, just touching the skin.

48. The Crown submitted this to be a moderately serious offence of this kind. The offender took no issue with this characterisation.

Count 1 – Damage property

49. Not long after the above incident, the offender was upset about not seeing his children and that GB was in contact with her children using her phone. The offender grabbed a butter knife and smashed the screen of the phone.

50. The Crown submitted this to be a less serious offence. The offender took no issue with this characterisation.

Count 2 – Common assault

51. GB drove the offender from the truck stop at Ballina to the clinic in Lismore so he could get his methadone dose. The offender became upset and believed GB was riding the clutch and smacked her a number of times.

52. The Crown submitted this to be a relatively serious offence given that the victim was driving at the time. The offender took no issue with this characterisation.

Counts 4 and 6 – Aggravated sexual assault and intentionally choke

53. The offender used to choke GB by putting his hand to her throat. On one occasion, GB was sitting on the bed and the offender came out of the shower and made her suck his penis. He put his hand around the back of her neck and was choking her as this was happening. He told her that he knew she liked it rough. GB was trying to fight it but couldn’t as she couldn’t breathe. GB passed out.

53. The offences took place in the home the victim shared with the offender.

54. The Crown submitted this to be serious offending involving emotional as well as physical abuse given the victim’s history of being sexually assaulted as a young child. This history was known to the offender. The offender took no issue with this characterisation for count 6. For count 4, the offender submitted the offence fell towards the lower end of the range.

Count 7 – Aggravated sexual assault

56. There was an occasion when GB was washing the dishes and broke the microwave plate. GB said she was going to tell the motel manager. The offender said she was “a fucking idiot” and they would think that too. The offender grabbed GB as she was walking out and pulled her down so she was on her knees on the ground. He sat on the bed with his pants down and grabbed her head and hair and pushed her mouth on to his penis. “An hour into it”, GB threw up and gagged. She was unsure if he ejaculated.

57. The offence took place in the home the victim shared with the offender.

58. The Crown submitted this to be a serious offence involving prolonged violation and the discomfort and humiliation of throwing up during the assault. The offender submitted the offence fell towards the lower end of the range.

Count 9 – Aggravated sexual assault

59. Around GB’s birthday, GB used some ‘ice’ that she mistakenly thought the offender left for her. The offender told GB she was ‘putrid’. He sat on the bed, pulled his penis out and then pulled GB’s head down and forced his penis into her mouth. The offender’s penis was hitting the back of GB’s throat causing her to gag and throw up. GB said she could not remember how long it went on for but it “wasn’t a shorter period of time because it never was.”

60. The offence took place in the home the victim shared with the offender.

61. The Crown submitted this to be serious offending again involving elements of punishment and humiliation. The offender submitted the offence fell towards the lower end of the range.

Count 11 – Aggravated sexual assault

62. On this occasion, GB returned from the shops with the offender and his three daughters. The youngest daughter was in a trolley being pushed by GB and fell out causing her to hurt her knees. The offender intimated that GB had to “make up for what (she’d) done wrong”. The offender pulled down his pants and told her she knew what she had to do. She told him it was an accident and she didn’t mean to do it. The offender put his hands around her throat and forced his penis into her mouth making her fellate him.

63. The offence took place in the home the victim shared with the offender.

64. The Crown submitted this to be serious offending where the offence was a form of punishment. The offender submitted the offence fell towards the lower end of the range.

Count 13 – Aggravated sexual assault

65. On another occasion when the offender’s daughters were visiting, GB took ten Valium and then went into the bathroom and cut herself with a knife.

66. The offender came in and dragged her out in front of his daughters and said “look what this fuckwit’s done”. He then took her back into the bathroom and turned the shower on. He pushed GB and forced his penis into her mouth using his hand to force it up and down causing her to gag as she fellated him.

67. The offence took place in the home the victim shared with the offender.

68. The Crown submitted this to be serious offence committed immediately after the victim had self-harmed and that it appeared to be committed to punish the victim. The offender submitted the offence fell towards the lower end of the range.

BG

69. BG put a profile on a dating site identifying himself as bi-sexual. The first person who responded was the offender. They messaged each other on the site and then by texting. They visited each other. Soon after meeting, the offender started asking him for money. BG gave the offender various sums of money. The offender was evicted from the unit where he lived and he moved into BG’s unit on 24 November 2018. At the time the offender moved in, the offender told BG he would pay board but no amount was mentioned. BG gave the offender a key to his unit.

Count 16 – Demand property with menaces

70. On 25 November 2018 the offender asked for $50 so he could get his clothes back from a woman in Casino. BG gave the offender the money and drove him to Casino. The offender used the money to buy ice. Shortly after, the offender asked for $40 to buy cannabis for himself and BG gave him the money. When the offender returned, BG drove them back to his unit in Ballina.

71. At BG’s unit, the offender asked for $300. BG said that he didn’t have the money. The offender told BG he was going to get him charged for sexually assaulting him. BG knew he had not sexually assaulted the offender but he was scared and threatened so he drove the offender back to Casino and went to a number of ATMs to withdraw money. At Casino, the offender told BG to stop stalling and give him the money. BG was unable to withdraw any money and was locked out of his accounts.

72. Some parts of the offence took place in the home the victim.

73. The Crown submitted that this is a relatively serious offence although the sum demanded was modest and that any penalty imposed for this offence required a significant degree of concurrency because of its proximity and connectedness to the subsequent aggravated robbery. The offender took no issue with this characterisation.

Count 17 – Aggravated robbery (used corporal violence)

74. When parked in Casino after BG had been unable to withdraw any money, the offender punched him in the left eye socket causing immediate pain. BG drove back to Ballina with the offender and to the ATM and withdrew $300 which he gave to the offender. On the road, the offender was texting a drug dealer in Casino about buying 1.75g of ice. The offender in the texts referred to having the driver “hostage” and doing a “hostage run”. BG drove the offender back to Casino where the offender bought 1g of ice for $300. BG’s eye was visibly bruised.

75. The Crown submitted the offence to be aggravated by both the victim’s vulnerability because of his physical and intellectual disabilities and the victim being deprived of his liberty; suggesting the use of the word “hostage” by the offender to describe the victim is consistent with the deprivation of liberty. I do not accede to this submission.

76. The Crown submitted that this is a moderately serious example of the offending. This characterisation was accepted by the offender.

Count 18 – Aggravated sexual assault

77. On 29 November 2018, BG went home after work. That evening the offender forced BG to suck his penis in the loungeroom. BG was kneeling on the floor. The offender kept telling BG to keep going and not to stop. BG told the offender that he wanted to stop, he tried to stop several times but the offender kept pushing his head down on to the offender’s penis until BG gagged. The offender was hitting BG on the side of the head and told him he wasn’t doing it correctly. After about an hour, the offender ejaculated.

78. The Crown submitted that this is a serious offence given the duration over which it occurred, the gagging, the physical violence and that it occurred in the victim’s home. The offender submitted the offence fell towards the lower end of the range.

Count 20 – Aggravated sexual assault

79. On the same occasion the offender forced BG’s head on his penis again and made BG suck his penis. BG told the offender that he didn’t want to do it. The offender hit him on the side of the head and BG was gagging. This went on for about an hour before the offender ejaculated again.

80. The Crown submitted that this is a serious offence given the duration over which it occurred, the gagging, the physical violence and that it occurred in the victim’s home. The offender submitted the offence fell towards the lower end of the range.

Count 22 – Aggravated sexual assault

81. On 30 November 2018, the offender came home and BG noticed he was smoking ice. The offender ate and then started talking about bondage to BG. The offender asked BG to tie him up on BG’s bed. BG loosely tied the offender up with some pieces of rope from his garden shed. BG also had some “party” handcuffs but he did not use those on the offender.

82. The offender untied himself and told BG to go to the lounge room. The offender made BG sit on one of his chairs backwards. The offender tied BG’s legs to the chair and handcuffed his wrists to the chair. The offender also tied BG’s handcuffed wrists to the chair.

83. The offender stood in front of BG and told him to open up and suck his penis. BG was scared and shaking. The offender said “let’s see how you can get yourself out of it. If you’re so smart, get yourself out of it. Open your mouth up and, if you’re so smart, get yourself out of it.” The offender forced BG to suck his penis. The offender kept saying “if you’re so smart, get yourself out of it.” The offender told BG that there were people outside trying to get him and who were waiting for him. The offender’s penis was in BG’s mouth for a long time. The offender kept threatening BG about the people outside.

84. The Crown submitted the offence to be aggravated by the victim being deprived of his liberty. I consider that the deprivation was only what was involved in committing the offence and does not aggravate it.

85. The Crown submitted that this is serious offending, occurring over a prolonged period, the victim was highly vulnerable because he was physically restrained which must have made the threats more potent and it occurred in the victim’s home. The offender submitted the offence fell towards the lower end of the range.

Count 24 – Aggravated sexual assault

86. The offender untied BG and told him to go into the bathroom. The offender then handcuffed BG to the towel rail. The offender told him to keep sucking his penis. BG was kneeling down and the offender was standing in front of him. The offender kept saying “keep sucking until I tell you to stop.” BG told the offender he wanted to stop but the offender told him to keep sucking. This went on for a long time until the offender ejaculated on the bathroom floor.

87. The Crown submitted the offence to be aggravated by the victim being deprived of his liberty. I consider that the deprivation was only what was involved in committing the offence and does not aggravate it.

88. The Crown submitted this to be serious offending informed by the context of the preceding assaults and that it occurred in the victim’s home. The offender submitted the offence fell towards the lower end of the range.

Count 26 – aggravated sexual assault

89. The offender then told BG to get into the shower. The offender uncuffed BG from the towel rail and handcuffed him to the shower rose. The offender made BG suck his penis again. BG was kneeling and the offender was standing in front of him. BG told the offender he wanted to stop and the offender kept telling him to do it. The shower was running and after a long time the offender ejaculated. BG’s knees hurt from kneeling.

90. The Crown submitted the offence to be aggravated by the victim being deprived of his liberty. I consider that the deprivation was only what was involved in committing the offence and does not aggravate it.

91. The Crown submitted this to be serious offending informed by the context of the preceding assaults and that it occurred in the victim’s home. The offender submitted the offence fell towards the lower end of the range.

Count 28 – aggravated sexual assault

92. The offender told BG to go back to the lounge room and made BG suck his penis. BG was kneeling and the offender was partially on his side on the floor. The offender hit BG on the side of the head every time BG tried to stop. BG tried telling him that he wanted to stop. The offender said that he had no choice and had to keep doing it. The offender was pushing BG’s mouth on to his penis until he gagged. It continued for a long time until the offender ejaculated around dawn.

93. The Crown submitted that this is serious offending that must be seen in the context of the preceding assaults, that it involved physical violence and continued despite the victim gagging and it occurred in the victim’s home. The offender submitted the offence fell towards the lower end of the range.

Count 30 – use an offensive weapon with intent to steal from a dwelling

94. The offender made BG sit at his kitchen table and stare at the wall. The offender demanded BG hand over stuff that he could sell for cash for his children. The offender was texting associates during the day about obtaining drugs and using items such as tablets as collateral. The offender used a piece of a chair to hit BG on the side of his chest/trunk. This caused bruising and abrasions on the side of his body.

95. The offender started writing a list of BG’s property including his utility, laptop, Samsung tablet, Apple tablet and push bike and demanded that BG sign that he had paid an agreed price for them. BG refused.

96. The offender asked for the PIN for the laptop and opened it up and shut it down again. The offender was calling BG “a loser”, “a fat slob” and “a child molester”.

97. The Crown submitted that this is moderately serious offence which was committed upon a vulnerable victim and which occurred in the victim’s home. The offender took no issue with this characterisation.

Count 31 – Armed with intent to intimidate

98. About midday, the offender told BG to go to his room as someone was coming over but he would not tell him who it was. BG went into his bedroom and stayed there for about 20 minutes until the offender came and asked BG for some chicken noodle soup. BG went out to the kitchen and then returned to his bedroom.

99. The offender came into the bedroom with a pair of scissors and pointed them at BG’s shoulder and asked him to suck him off again. I take into account the type of weapon. BG was scared and felt threatened and froze. The offender went over to BG’s computer desk and started going through his hard drives that were in a box and saying “kiddie porn, kiddie porn”. I am satisfied there was no such material. At this point BG took the opportunity to escape and went next door to his neighbour.

100. The Crown submitted that this is relatively serious offence which was committed upon a vulnerable victim and occurred in the victim’s home. The offender took no issue with this characterisation.

Count 32 – Steal property in a dwelling house

101. When BG was in his neighbour’s unit, the neighbour saw the offender putting BG’s bicycle and other items into BG’s utility. The offender drove away in the utility.

102. BG wrote a list of the items taken by the offender which included his bicycle, a laptop, a tablet and an Apple iPad. The items were subsequently returned to BG by the police.

103. The Crown submitted that this is a less serious offence. The offender took no issue with this characterisation.

CW

104. CW was homeless and in November 2018 went to stay with a friend, AM. This friend introduced CW to the offender. AM explained to the offender at that time that CW “wasn’t the full quid” and the offender replied “Oh, she knows what she’s doing. Like she’s not as silly as you think she is.”

105. After they were introduced, the offender sent CW a photo of himself standing bare chested in front of images of naked and semi-naked women with the word “Monsta” [his nickname]. A minute later he sent a photo of himself standing naked in the shower with his hands over his genitals and the words “bath time”. CW responded “sexy”. About an hour later the offender sent an image of his erect penis and wrote “meet up now give my cock a mad suck xx”. He followed this with a text “u want it now” and an image of himself and his erect penis. He further texted “come now, don’t tell anyone”. CW replied “???”. The offender texted and then called her twice in quick succession. CW responded “I don’t know you so I don’t want to meet you I want to get to know u first”. The offender called CW and then further texted her. CW texted him goodbye and said he scared her.

106. The offender went to the mutual friend’s place and had dinner with her, her family and CW. During dinner, CW told him about her brain injury and disability and what happened to her as a young child. The offender was flirting and talking about sexual things which made the women including CW uncomfortable. After dinner the offender asked to stay the night but the friend refused.

107. The offender wanted CW to come out of the house to speak to him. The offender texted CW at 10.32 pm “Do u want me. This will test ya trust.” Texts were exchanged and at 10.42 pm the offender texted “U gonna cum out” and “Just come out and talk you’re a big girl u can.” CW replied “Can we meet tomorrow I’m tired and I have the doctors tomorrow morning” and “I’m worried about the doctors tomorrow.”

108. CW went out on to the porch after the offender asked her to go outside. CW said that she went outside because her plan was to tell him to stop texting her. She had no one to talk to inside as everyone was asleep and she had to talk to someone. She also wanted to figure out what he wanted. It was about 10 o’clock. The offender came and sat down on the porch. The friend came out briefly to check on them and went back inside.

Count 33 – aggravated indecent assault

109. CW wanted to talk because everyone was asleep and then “the next minute he was trying to touch me and trying to hurt me.” The offender sat down next to CW and touched her breasts by putting his hands down her top.

110. It is submitted by the Crown that it is a relatively serious offence. The offender submitted the offence fell towards the lower end of the range.

Count 34 – aggravated sexual assault

111. The offender put his fingers inside her pants and into her vagina and was calling her names and saying ‘awful stuff’. The offender said she was “his bitch” and was saying it in an angry violent way. CW tried telling him to stop (putting his fingers inside her) and said stop but he kept doing it. The offender said “No, I’m not getting off you.” The victim said the offender pulled a pocket knife out of his pocket and said “if you don’t do this, I will hurt you.” The offender challenges that I should accept a knife was produced. I accept only CW advanced this observation and I have had regard to her evidence in which she advanced this observation. I accept aspects of her evidence contained inconsistencies. However, I am satisfied beyond reasonable doubt that there was a knife.

112. I accept this to involve threatening the victim with the knife. CW was scared and did not want him to do what he was doing to her but felt forced.

113. The Crown submitted that this is a serious offence. The offender submitted the offence fell towards the lower end of the range.

Count 36 – aggravated sexual assault

114. The offender put one hand in her vagina.

115. The Crown submitted the seriousness of the offending is impacted by the immediately preceding acts and that this is a serious offence. The offender submitted the offence fell towards the lower end of the range.

Count 38 – aggravated sexual assault

116. The offender made CW put her mouth on his penis to suck it and said if she did not do it he would hurt her. She froze and just let him do what he did. The offender grabbed CW’s neck and pulled her towards his penis and told her to suck it. He kept asking “do I like that?” and telling her if she didn’t do what he asked her to do he would hurt her. The offender said he would kill her. CW was not able to breathe as the offender was forcing his penis so far down her throat.

117. The Crown submitted the seriousness of the offending is impacted by the immediately preceding acts and that this is a serious offence. The offender submitted the offence fell towards the lower end of the range.

Count 41 Sexual intercourse with a person with a cognitive impairment

118. After the offender pulled his penis out of CW’s mouth, he told her to bend over on her hands and knees which she did. The offender put his penis into her anus causing it to bleed. When the offender took his penis out of her anus, CW got up off the ground and realised it was hurting and started to get away.

118. Consent is not an element of this offence.

119. The Crown submitted that this is a serious offence. The offender took no issue with this characterisation.

MG

121. MG met the offender outside Shopping World in Grafton. She was with a friend but he left during the night. The offender offered MG some ice and asked if she had a valid driver’s licence. He then asked if she would drive him to Lismore on the weekend to see his children and she agreed. The offender said “Don’t worry about anything sexual, you are not my type.” The offender gave MG some money and a list of items to purchase for him. After purchasing the items, the offender and MG spent most of the evening going to different places in Grafton and consuming ice. During the early part of the evening, MG and the offender met Simon Lye, a friend of the offender. MG told Mr Lye in the presence of the offender that she had a brain injury. Mr Lye observed MG spoke slowly and repeated herself. He thought she may have had a stroke.

122. Both the offender and MG used ice during the period of the offences although the offender appeared to use it more frequently and he injected MG at least once without her consent. There was also some cannabis consumed by both.

123. MG stated that she did not consent to any of the sexual acts with the offender. She told him every time “No I don’t want to. Do you know what the word, the meaning of ‘no’ is?” The offender said that he was the ruler of her and that he owned her because of the drugs. MG felt she was at risk of him being violent.

Count 42 Aggravated incite sexual touching

124. At the rowing club in Grafton that evening, the offender and MG were in the offender’s car. The offender had taken ice and was sexually frustrated. He asked MG to relieve it and she said no. The offender said “not with your mouth with your hand.” MG said no again. The offender said “You fucking do what you’re told, um, you dirty slut”. He raised his closed fist at MG and asked “do you want this or do you want to hold my dick”. MG masturbated the offender’s penis for about 10 minutes until he ejaculated over her hand and his pants. While MG was masturbating the offender’s penis, he called her a “dirty slut” and threatened her “if you don’t talk nice, I’ll fucking punch you.”

125. The Crown submitted that this is a moderately serious offence. The offender submitted the offence fell towards the lower end of the range.

Count 43 Aggravated sexual assault

126. The offender threatened to track down MG’s children and hook them up to a tree for the night if she did not fellate his penis. MG fellated the offender for about 5 minutes. MG dry-retched as the offender put pressure on her head to push it on to his penis. She was choking and vomited but swallowed it.

127. The Crown submitted that this is a serious offence which continued despite the victim dry retching, choking and vomiting; adding the threats the offender made regarding the victim’s children were particularly distressing to her. The offender submitted the offence fell towards the lower end of the range.

Count 45 Aggravated incite sexual touching

128. When MG stopped fellating the offender told her to finish it with her hand so she masturbated his penis for about 10 minutes.

129. The Crown submitted that this is a moderately serious offence and to be assessed in the context of what occurred beforehand. The offender submitted the offence fell towards the lower end of the range.

Count 46 Aggravated sexual assault

130. The offender and MG went to See Park. The offender was in the driver’s seat and MG was in the back seat. The offender suggested she fellate him and she replied “No, come on. Give me a break. I’ve done too much. You don’t need to come again tonight.” The offender got very angry and got out of the car and into the back seat. He drew his fist and told her how strong he was and that she didn’t want to find out. When MG said she already knew how strong he was, the offender laughed. The offender pried open MG’s mouth with his finger and forced his penis into her mouth. MG fellated the offender for about 5 to 7 minutes.

131. The Crown submitted that this is a moderately serious offence which followed the earlier offending. The offender submitted the offence fell towards the lower end of the range.

Count 48 Aggravated sexual assault

132. The offender and MG then went to the toilet block at See Park. The offender told MG to come over and when she said she did not want to do anything, he said “are you really saying ‘no’ to me after I give you all the drugs in the world and I fed you, I smoked you, I did everything for you, and you’re going to say no? What fucking human being are you?” MG felt violated and sick and threatened by what he had said earlier to her in the car about her children. She fellated him for about 10 to 15 minutes until he ejaculated on her face.

133. The Crown submitted that this is a moderately serious offence which followed the earlier offending. The offender submitted the offence fell towards the lower end of the range.

Trip to Lismore

134. The next day, MG went to Mr Lye’s place. The offender was there and after having cannabis, MG drove the offender to Lismore. The offender told MG she was ugly, fat and gross among other demeaning comments.

135. Once they arrived in Lismore, the offender dropped MG off at a roundabout while he went to pick up his two teenage daughters. He then picked up MG and they went shopping in Lismore and then to a motel in Lismore. The motel room had three beds, a small alcove kitchenette and a bathroom. The offender and his daughters went to get some food for dinner and MG stayed at the motel. During the evening, the offender and MG spent nearly all the time in the bathroom. The offender became angry whenever MG spoke to his daughters. His daughters observed that the offender was mean to MG.

Count 50 Aggravated sexual assault

136. During the time she was in the bathroom, the offender tied her hands and feet with laces. He untied her hands during the two times she fellated him. He threatened MG that if she left the toilet she would be thrown back there.

137. MG was sitting on the toilet when the offender asked her to fellate him. She said no and he offered her a shot. She said no again. The offender said “well if you want more cones, you have to have it. If you want anything from this place, you got to have it.”

138. MG fellated the offender for about 5 minutes and he ejaculated on her face and told her to lick it off.

139. I do not find as an aggravating factor that the offender deprived the victim of her liberty.

140. The Crown submitted that this is a moderately serious offence and involved a degree of humiliation when the offender ejaculated on her face. The offender submitted the offence fell towards the lower end of the range.

Count 52 Assault occasioning actual bodily harm

141. The offender belittled MG in front of his daughters. He called her dirty and disgusting. He locked her in the shower and made her wash her hair. MG started answering him back which made the offender become violent. The offender opened the shower door and hit her in the stomach.

142. The Crown submitted that this is a less serious offence although aggravated because it was it was committed upon a vulnerable person. The offender took no issue with this characterisation.

Count 54 Aggravated sexual assault

143. While in the bathroom that evening, the offender made up ice and injected MG’s hand while she was sitting on the toilet. He did it without telling her and she abused him and he became violent. The offender pushed MG up against the door of the shower and he had a pair of pliers. When MG said no to fellating the offender he became violent. She fellated him for a second time in the bathroom.

144. The Crown submitted that this is a serious offence because of the threats and violence. The offender submitted the offence fell towards the lower end of the range.

Return trip to Grafton

145. The next day the offender took his daughters shopping in Ballina. He told MG to stay near the car but would not let her stay inside it. After several hours, the offender returned with the girls. They all got in the car and the offender again dropped MG off near a roundabout while he took the girls home. He then picked up MG and they drove back to Grafton.

Count 61 Aggravated sexual assault

146. On the way back to Grafton, the offender stopped the car. MG got out of the car to have a cigarette. When MG complained about being bitten by mosquitoes, the offender told her to get back into the front seat of the car. He tied her legs and hands up and put a sock in her mouth which he tied around her head. He said he needed to control her because she wasn’t doing the right thing. This was punishment because she had not said she enjoyed fellating him. The offender took out the sock so she could fellate him.

147. The offender said “so are you going work as a dirty slut and get another shot?” and she said “no”. The offender replied “You’re going to have to anyway, whether you have a shot or not.” She said “fuckhead”. The offender was upset and threatened to teach her a lesson and slapped his own face. The offender injected MG with two points of ice and told her to get on her knees and do her job. She fellated him until he ejaculated.

148. The Crown submitted that this is a moderately serious offence involving threats and humiliation. The offender submitted the offence fell towards the lower end of the range.

Findings on seriousness

149. All of the offences are individually serious. I do not propose to use terminology oft used for standard non-parole period offences. I shall address them in ascending order of seriousness.

150. I find counts 3, 1, 2, 16, 17, 30, 31, 32, 33 and 52 to be moderately serious examples of offending within the separate offence categories.

151. I find counts 4, 6, 11, 24, 26, 34, 36, 41, 42, 45, 46, 48, 50 and 54 to fall at a higher level of seriousness.

152. I find counts 7, 9, 13, 18, 20, 22, 28, 38, 43 and 61 to be the most serious offences committed.

Harm

153. It is important that sentences passed for sexual assault crimes recognise the harm done to the victim of the crime. I observed each victim during their evidence in the trial. All victims demonstrated the continuing emotional harm caused by the offences. Each was understandably upset in recounting aspects of the offending. I had the opportunity to be assisted by a victim impact statement provided by each victim. The provision of a victim impact statement provides an opportunity for a victim to express to an offender the harm that they perceive occurred. That voice in the court proceedings is an important legislative provision. Each victim was provided an opportunity to reflect on the harm occasioned from the offender’s conduct. The impact of such offending upon victims is well understood and accepted even without supportive material. However, there is harm occasioned that is specific to the individual. Each victim elucidated the impact experienced consequent to the offending.

154. GB wrote of the humiliation, fear, self-blame and loss of trust. BG wrote of the fear, loss of social independence, self-blame and also the financial impact. CW wrote of the fear, anxiety and loss of a sense of safety. MG wrote of the fear, anxiety, hurt, self-blame and deterioration to her mental health.

155. I acknowledge the real and tangible trauma each victim suffered and continues to suffer consequential to the offending. I do not determine that it was of such degree as to be an aggravating feature.

The offender

156. The offender chose to plead not guilty. This was his entitlement and it is not used against him. He continues to deny the offending and has not expressed any remorse. There is no insight into the offending. Even during the evidence of the victims during the trial, whilst appreciating he was in the presence of the jury and defending the charges, there was no response indicative of empathy or any awareness of the harm occasioned. In the absence of the jury an absence of emotion was maintained.

157. The offender was aged between 38 and 41 at the time of offending and he is now aged 45.

158. The offender relies upon a report of Dr Gerald Chew, Forensic Psychiatrist. The Crown required Dr Chew for cross-examination on sentence. Other than gaining insight into the offender’s past from his criminal history, and limited exposure through the trial evidence, there is limited background information. Dr Chew addresses some aspects. He was provided with the Crown tender material supplemented by defence instructions. Dr Chew conducted a psychiatric assessment on 8 May 2023. I shall address aspects from his report and the additional evidence.

159. The offender advanced a long-term substance abuse issue. I observe this is consonant with his antecedents. It is stated he has been on the methadone program whilst on remand and is otherwise drug abstinent. This of course is in a controlled environment and his decades long abuse will require further support if abstinence is to be maintained. I am aware that the custodial record reflects custodial offending, for intimidation but more relevantly drug offences. The offender has committed four drug offences during this period on remand, with the most recent in October 2022. Abstinence is to be reviewed mindful of this evidence.

160. The offender was wheelchair bound during the trial. This would have made his conditions in custody more onerous and would have had a marked impact on his mental health. I do not doubt that the verdicts and concern about sentence compound his mental health issues. Since verdict the offender has undergone two surgeries for a spinal cord disorder. In November and December 2023, he spent approximately 6 weeks in hospital post decompression and fusion surgery. He returned in January 2024 for a further two weeks as planned. The discharge report noted he was mobile on crutches upon discharge. He was in a wheelchair during the proceedings on sentence. It is inferred there is continuing rehabilitation.

161. Dr Chew detailed background information provided to him by the offender. He accepted in evidence he relied on what he was told and did not verify all the information. He indicated he could check some information. Dr Chew accepted that given the offender’s history of dishonesty offences there was a need to scrutinise responses. He has previous suicide attempts and ongoing suicidal ideation. Dr Chew was taken to an apparent suicide attempt in March 2021. He was referred to the offender advancing he swallowed razor blades only to retract this and decline medical assistance. Dr Chew indicated lying to get attention fitted with his presentation and it could be seen as demonstrating his manipulative behaviour. He also advanced that lying and threatening self harm was not uncommon if there was a traumatic background and that it could be demonstrative of emotional distress. Dr Chew said this false account did not undermine a history of genuine attempts. Dr Chew said despite the history of dishonesty the overall presentation and description of symptoms was what he expected. He said it was possible some responses were provided to elicit sympathy.

162. [Redacted]. He continues to suffer the ongoing legacy from this conduct. There is said to be a link between the trauma and his commencement of poly-drug use as a child. It is stated this assisted him to manage emotional difficulties. This will inform moral culpability given that his drug use, and its likely impact on his elevated sexual desires, informs his offending. He was on a disability pension for mental health issues prior to his arrest.

163. Dr Chew opines that the offender has a primary diagnosis of complex PTSD occasioned by this background and that this impacts his interpersonal relationships and informs his anger and irritability. In evidence Dr Chew said he referred to complex PTSD as this was now being used in lieu of borderline personality diagnoses which carry a stigma and are perceived as pejorative. The diagnosis was one that could be a cluster B diagnosis of the borderline type. He allowed for anti-social traits being present. This could inform the risk of reoffending. Dr Chew also accepted in addition to PTSD, that high levels of ice use could result in instability, anger and irritability.

164. Dr Chew was asked about the large volume of pornography accessed and the type of pornography including violent penile/ oral sex. Dr Chew said this could reflect the existence of paraphilia. He said it was not uncommon for people to access this material and not have a paraphilia however in those cases there was less volume of material accessed. He said it was difficult to make a diagnosis but he allowed for the fact he should have included it in his report as a matter requiring further assessment. He said it was treatable and therefore he did not consider it relevant to the risk of reoffending. He accepted not every person accepted the diagnosis and was amenable to treatment.

165. Dr Chew stated the offender’s mental health renders custody more onerous. Dr Chew advanced treatment would be more readily accessed in the community than custody. I consider the offender’s needs can be addressed in custody to a satisfactory level, even if not to the standard provided in the community.

166. I note the offender’s further exposure to trauma occasioned by the loss of two children in a car accident about 10 years ago. This event is incredibly sad. Although Dr Chew recorded that they were the offender’s children this is not correct. They were children travelling in a car with the offender’s children. Dr Chew allowed for having made a mistake. I do not consider it necessary to determine if there was an attempt by the offender to mislead. I do not consider it informs this offending as his record reflects offending prior to this tragedy. The offender has three other children, two of whom are still children. He was not residing with them or their mother prior to or at the time of offending. He has limited support in the community. He received very limited formal education and has limited work experience.

167. In addition to what may be gleaned of the offender from the psychiatric report, I am informed by evidence in the trial. The phone records reflect the offender to have been significantly interested in sexual matters, mostly focussed on fellatio. He also communicated about drug use. These interests correlate with what was said of him by victims and are consistent with the offending.

168. He evidently cared for his children and lavished two of his daughters with presents. He wished to avail himself of access visits. His children appear to be his only pro-social contact. It is not lost on me that during the access time witnessed by MG, that he spent considerable time frequently using ice.

Moral culpability

169. Dr Chew drew a causal link between the offender’s mental health and the offending. I accept that his report is succinct and he omitted details that should for completeness have been included. He indicated he maintained his opinion of the causal link. At the time of the offences the offender was using ice regularly. Ice explains aspects of his offending. I accept the offender’s traumatic childhood well explains his subsequent drug addiction. The link between childhood trauma and drug use, and in turn drug abuse and offending, moderately lessons moral culpability.

Antecedents and breaches of conditional liberty

170. The offender has a lengthy criminal history commencing in 2002 with no other sexual offences. There are antecedents in various jurisdictions. His offences are primarily for offences of dishonesty, personal violence or drug related. He has previously received sentences of full-time imprisonment. This sexual offending presents as an aberration to that history but an aberration that continued over three years and multiple victims. It is of concern that his offending is increasing in seriousness and diversifying in nature. The nature of the record deprives the offender of an entitlement to leniency.

170. The offender was sentenced for a number of offences on 17 June 2016. He was released to parole from custody on 25 June 2017. He committed the offences upon GB commencing soon after his release. This entails a breach of parole.

171. I specifically note the entries on 1 December 2018 for which he was sentenced on 21 February 2019. The police facts are tendered. These offences relate to BG, involving the taking of the victim’s car and violence upon BG and his brother. The offender used a sharp weapon. If these offences were brought for sentence together with the current offences there would have been some measure of concurrency, albeit limited given the different victim. The further significance is that the offender was on parole for this conduct when he committed the offences upon MG. Parole was revoked based on further offending. The offender served balance of parole from his arrest date of 5 March 2020 until 4 December 2020. I am required to take this period into account when determining a start date, being careful to avoid double punishment for this breach and consequent serving of the balance of parole whilst on remand for these matters.

172. I bear in mind the offences committed upon BG and CW occurred on parole. The offender was sentenced on 11 October 2018 to 12 months imprisonment with 3 months non-parole, to date from 20 June 2018. His was released to parole on 11 October 2018 reflecting a short period on conditional liberty before reoffending. This included a sentence for stalking. The offender committed offences within 6 weeks of parole, on BG commencing on 24 November 2018 and on CW on 25 November 2018.

173. The offender was in custody from 9 December 2019 until 21 February 2020. His offending upon MG commenced on 28 February 2020. That is, he offended a week after release from custody [on the sentence arising from the BG related offending] and whilst on parole.

174. The offender entered a Community Corrections Order on 12 February 2020 for possession of a weapon. He was in breach of this order when he offended upon MG.

175. A breach of conditional liberty is an aggravating feature as it represents a breach of trust.

176. I also note a previous knife related offence in 2018. This is relevant to his use of a knife on other occasions.

Risk of reoffending, prospects of rehabilitation and personal deterrence

178. Although there is an absence of similar antecedents, there is a real concern that he offended upon separate victims over a lengthy period of time. I consider the risk of re-offending for similar offences to be unpredictable. The offender maintains his innocence and although he indicated a preparedness to engage in treatment programs his likely success is uncertain. He has otherwise been engaged in other unsocial and illegal conduct for over 20 years. What may hinder his ability to reoffend is his compromised mobility. He may not be provided with an opportunity to offend. Also, I have not overlooked the role amphetamines played in his hyper-sexualised conduct and how possible maintenance of abstinence will impact.

179. The risk of reoffending is different to rehabilitation. Counsel for the offender indicated that although prospects of rehabilitation were guarded they would inform the sentencing exercise. I do not consider that there has been any progress with rehabilitation and nor do I perceive it to be likely. It follows that personal deterrence has an important role to play.

Deterrence

180. General deterrence, denunciation and protection of the community are principles of sentencing which are relevant to cases involving sexual abuse, particularly where there is a component of domestic violence such as for GB. Sexual offending requires appropriate sentences to provide for general deterrence to serve a meaningful role. There is nothing in the offender’s subjective case that lessens the significance of general deterrence.

Threshold

181. It is accepted that the s.5 threshold is passed and that custodial sentences are required.

Totality

182. I am mindful of the requirement to comply with the principle of totality in ensuring that appropriate individual sentences are imposed but also that the overall sentence is appropriate. The offences occurred to separate victims. Some offending is spread over a lengthier period and other offences occurred close in time to each other. Some degree of concurrency is appropriate for offences close in time or part of one course of conduct, whilst some accumulation is necessary to address both the serious offending upon the same victim and the separate offending upon victims.

183. In considering the offences upon GB I note they occurred within a period of months but on separate occasions and include separate offence categories.

184. In considering the offences upon BG, they occurred essentially over three separate occasions and within a short period of time.

185. In considering those offences upon CW, they occurred during the one incident. I also appreciate these offences occurred during the offending upon BG.

186. In considering the offences upon MG, they occurred over a number of days in four discrete episodes.

187. Those committed on the same day as part of a continuing course of conduct support greater concurrency, without overlooking the seriousness of each individual offence. Of necessity there must be compression to the overall sentence to result in an appropriate overall sentence and to avoid the imposition of a crushing sentence.

188. I also need to determine the commencement date having regard to the balance of parole being served from the arrest date. The offender entered custody on 5 March 2020. Given that he served balance of parole for this further offending I am careful not to doubly punish. I propose to commence sentence on 5 May 2020.

189. I consider it appropriate to impose an aggregate sentence.

Special circumstances

190. Counsel for the offender submitted a finding of special circumstances should be made based on the offender’s psychological and physical conditions. I propose to moderate the sentence taking into account the onerous conditions on remand. Part of his period on remand coincided with the more restrictive conditions due to COVID; including with less access to programs and activities and more limited access visits. I do not consider his mental health issues require a finding of special circumstances. I have otherwise taken mental health into account. Although there is evidence of the offender’s recent surgeries there is no report attesting to his prognosis. The last report referred to crutches. I am particularly mindful of the impact of custody on a mobility challenged prisoner. Based on this and the necessity to notionally accumulate indicative sentences and the need for an extended period being subject to parole [assuming that the parole authority extends the supervision period], I make a finding of special circumstances.

191. This will result in a variation to the statutory ratio.

Indicative sentences

192. The offender is convicted on 34 offences.

193. The indicative sentences are:

Count	Offence and particulars	Maximum penalty/SNPP [imprisonment]	Indicative sentence [imprisonment]
GB
1	Damage Property $2000 (knife to phone)	5 years / No SNPP	1 year
2	Common Assault (smacked a number of times)	2 years / No SNPP	1 year 2 months
3	Use offensive weapon to intimidate (held knife to throat)	12 years / No SNPP	3 years
4	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 years SNPP	10 years/ 6 years 6 months NPP
6	Intentionally Choke (hand to throat)	10 years / No SNPP	4 years 6 months
7	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 years SNPP	12 years/ 8 years 6 months NPP
9	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 years SNPP	12 years/ 8 years 6 months NPP
11	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 years SNPP	10 years/ 6 years 6 months NPP
13	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 years SNPP	12 years/ 8 years 6 months NPP
BG
16	Demand Property with Menace intent to steal (money)	10 years / No SNPP	3 years
17	Agg Robbery, inflict ABH (money and bruised eye)	20 years / No SNPP	6 years
18	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	12 years/ 8 years 6 months NPP
20	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	12 years/ 8 years 6 months NPP
22	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	12 years/ 8 years 6 months NPP
24	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	10 years/ 6 years 6 months NPP
26	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	10 years/ 6 years 6 months NPP
28	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	12 years/ 8 years 6 months NPP
30	Use offensive weapon to CSIO (stealing)(piece of chair to chest)	12 years / No SNPP	3 years
31	Armed with a weapon with intent to CSIO (intimidation) (scissors to shoulder)	7 years / No SNPP	2 years
32	Steal from Dwelling >$5000 <$15,000 (bicycle, laptop, tablet, iPad)	7 years / No SNPP	2 years 6 months
CW
33	Agg Indecent Assault, Cognitive Impairment (touching of breasts)	7 years / 5 year SNPP	2 years/ 1 years 4 months NPP
34	Agg Sexual Assault, Cognitive Impairment (digital penetration, knife)	20 years / 10 year SNPP	10 years/ 6 years 6 months NPP
36	Agg Sexual Assault, Cognitive Impairment (hand in vagina)	20 years / 10 year SNPP	10 years/ 6 years 6 months NPP
38	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	12 years/ 8 years 6 months NPP
41	Sexual Intercourse with Person with a Cognitive Impairment (anal intercourse)	8 years / No SNPP	5 years
MG
42	Agg Incite Sexual touching, Cognitive Impairment (masturbate penis)	7 years / 5 year SNPP	4 years/ 2 years 8 months NPP
43	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	12 years/ 8 years 6 months NPP
45	Agg Incite Sexual touching, Cognitive Impairment (masturbate penis)	7 years / 5 year SNPP	4 years/ 2 years 8 months NPP
46	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	10 years/ 6 years 6 months NPP
48	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	10 years/ 6 years 6 months NPP
50	Agg Sexual Assault, Cognitive Impairment (fellatio)	20 years / 10 year SNPP	10 years/ 6 years 6 months NPP
52	AOABH (hit in stomach)	5 years / No SNPP	1 year 6 months
54	Agg Sexual Assault, Cognitive Impairment (fellatio, threats and violence)	20 years / 10 year SNPP	10 years/ 6 years 6 months NPP
61	Agg Sexual Assault, Cognitive Impairment (fellatio, threats and humiliation – sock in mouth)	20 years / 10 year SNPP	12 years/ 8 years 6 months NPP

Sentence

194. The sentence imposed is 28 years imprisonment with a non-parole period of 18 ½ years to date from 5 May 2020. Sentence will expire on 4 May 2048 and the offender is eligible for release to parole on 4 November 2038.

195. This is a variation of the statutory ratio to 66%. No lesser term or non-parole period would address the seriousness of the offending.

High risk warning

196. Pursuant to s.25C of the Crimes (High Risk Offenders) Act 2006 (“the Act”) I am required to warn the offender of the Act. The objects of this Act are to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community and also to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation. Counts 4, 7, 9, 11, 13, 18, 20, 22, 24, 26, 28, 34, 36, 38, 42, 43, 45, 46, 48, 50, 54 and 61 are serious offences within the meaning of the Act. At some later time the Supreme Court may make either an extended supervision order or a continuing detention order.

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Decision last updated: 14 March 2024