R v PB

[2020] NSWDC 286

District Court

New South Wales

Medium Neutral Citation:	R v PB [2020] NSWDC 286
Hearing dates:	25 – 27 November 2019; 7 February 2020
Decision date:	21 February 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 15 years; non-parole period 10 years.
Catchwords:	CRIME - sentence – indecent assault child under 10 years – sexual intercourse child under 10 years – aggravated sexual intercourse child 10-14 years – indecent assault child under 16 years -
Legislation Cited:	Crimes Act Crimes (Sentencing Procedure) Act 1999
Cases Cited:	DPP(Cth) v De La Rosa [2010] NSWCCA 194, Johnson v R (2004) 78 ALJR 616 Markarian v R [2005] HCA 25 Mill v R (1988) 166 CLR 59 Pearce v R (1998) 194 CLR 610 R v Holder (and anor) (1983) 3 NSWLR 245 R v Tuala [2015] NSWCCA 8 R v XX (2009) 195 A Crim R 38, R v Youkhana [2004] NSWCCA 412, Siganto v R (1998) 194 CLR 656
Category:	Sentence
Parties:	Regina (Crown) PB (offender)
Representation:	Counsel: Mr C Bailey (Crown) Mr J Sabharwal (offender) Solicitor: Mr A Meredith (DPP) Mr Fraser (offender)
File Number(s):	2018/00242656
Publication restriction:	Non publication order for names of offender and victim

Judgment

1. PB appears for sentence today in relation to a number of counts, ten in all, for which he was found guilty by a jury at the Orange District Court in November last year. I will recite the detail of those charges and the maximum penalties in relation to them shortly.

2. The prisoner was acquitted by direction of two counts on the twelve count indictment on the basis that the victim of the assaults gave no evidence of the relevant acts to support those particular counts. Obviously for anybody who wishes to understand the reason for those verdicts by direction, the only power I have to direct a jury to acquit is if there be no evidence to support a particular count.

3. The respective counts set out in the indictment in summary are as following, with the maximum penalties.

4. The prisoner was convicted of an indecent assault of a child under the age of nine years, namely six or seven years, committed at Richmond between 27 December 2005 and 15 August 2006. That count at the time carried a maximum penalty of ten years imprisonment with a standard non-parole period of five years imprisonment.

5. Count 2 was a related offence in time and in circumstance, that is an offence of sexual intercourse with a child under the age of ten years, namely six or seven years, again at Richmond, between the same dates as count 1. That offence carried a maximum penalty of 25 years with a standard non-parole period of 15 years.

6. Count 3 was a count alleging an offence of sexual intercourse with a child under the age of ten years, namely six or seven years, at Billy Job Wattamondara via Cowra. That offence likewise, being an offence pursuant to s 66A of the Crimes Act1900, carried a maximum penalty of 25 years and a standard non-parole period of 15 years.

7. Counts 4 and 6, related counts in time and place, occurred at Bligh Park. Count 4 was an indecent assault on a child under the age ten years, the child was either seven, eight or nine. It had a maximum penalty of ten years with a standard non-parole period of five years, increased to eight years on 1 January 2008, which is a date within the range of dates pleaded in the indictment.

8. Count 6 was another offence contrary to s 66A of the Crimes Act with a maximum penalty of 25 years and a standard non-parole period of 15 years, again committed at Bligh Park.

9. Count 8 was a stand-alone offence alleging an aggravated sexual intercourse with a child between the ages of ten and 14 years, committed at Orange between 1 January 2012 and 31 December 2012. The victim was 12 or 13 years at the time. That offence, at the time, carried a maximum penalty of 20 years imprisonment and had no standard non-parole period.

10. Counts 9, 10, 11, 12 were four counts relating to events that occurred at about the same time at Orange

11. Count 9 was an indecent assault of a child under the age of 16 years contrary to s 61M(2) Crimes Act carrying a maximum penalty of ten years with a then standard non-parole period of eight years imprisonment.

12. Count 10 was an aggravated sexual intercourse with a child aged between 14 and 16 years. That carries a maximum penalty of 12 years imprisonment but there is no standard non-parole period.

13. Count 11 was another indecent assault of a child under the age of 16 years which carries the same maximum penalty as count 9.

14. Count 12 was another offence of aggravated sexual intercourse with a child aged 14 to 16 years with a maximum penalty of 12 years and that particular offence is contrary to s 66C(4) Crimes Act, the victim was relevantly 14 or 15 years of age at the time of the offending.

15. As can be seen from what I have outlined apart from the fact there are very significant maximum penalties particularly in relation to offences committed on a child. A number of the offences, but not all the offences, have standard non-parole periods. I propose in analysing the objective seriousness of the offending to deal with the matter in respect of all offences in accordance with what is required of the Court under s 54A and 54B Crimes (Sentencing Procedure) Act 1999 in terms of assessing, particularly under s 54A(2), the offences that relate, or a particular offence as it relates, to the “middle range of objective seriousness.”

16. The prisoner was born in July 1974 thus his age at the time of the offending can be divined having regard to the dates that I have identified. He was the father of the victim and relevantly at all times, as I understand it, the victim was living with him. Firstly, as I would understand it, at Richmond then Bligh Park, for some period of time with her mother as well and her brother and then with the prisoner, alone, without the mother, when the family lived at Orange.

17. The prisoner pleaded not guilty to the charges in the indictment, as I have earlier indicated, and was found guilty by a jury. The prisoner gave evidence at his trial and denied the allegations of the victim. The victim gave evidence and there was some evidence within the Crown case of complaint and other matters. The accused, amongst the evidence that he produced, called his son who particularly gave evidence that was directly relevant to count 8 in contradiction of the evidence of the complainant.

18. It is clear, by reference to the verdicts, that the jury rejected the evidence of the prisoner. It should be noted in that regard that a significant piece of evidence in the Crown case was a covertly recorded conversation between the prisoner and his daughter that occurred in early August 2018 in which the prisoner whilst not making what could be direct admissions, clearly, failed in his private conversation to deal with the particulars of the allegations that were made to him by his daughter in a conversation that he did not realise was being recorded. That was significant evidence that supported the credit of the victim in a range of ways, albeit that the conversations were not necessarily directed at specific counts in the indictment.

19. There were also telephone intercepts, or telephone conversations recorded covertly, between the victim and the prisoner in the days before the private conversation in the car in which the prisoner made a number of equivocal statements. It is quite clear by regard to the verdicts, without making any comment about the evidence, that the jury found the prisoner’s explanations for failing to address the specific or general allegations made by the victim unacceptable. Thus, the Crown was able to prove its case beyond reasonable doubt in respect of those matters for which there was a case to answer.

20. In relation to the allegations against the prisoner, particularised in the indictment, the offences themselves, whilst specifically pleaded as individual events represented a course of conduct that stretched back to 2005. In considering the totality of the criminality, as I must, I have to have regard to the fact that the prisoner’s conduct, in terms of the particulars pleaded in the indictment, proceeded over a ten year period involving crimes committed against his daughter from the age of 6 up until she was approximately 14 or 15.

21. In general terms, because there are specific technical matters that have to be addressed in the sentencing exercise, I note by reference to s 21A(3) that none of the offences could be described as “planned” offences. However, that having been said it is clear when one looks at the totality of the criminality and the course of the criminality that the lack of planning has to be seen in the context of the regularity of the offending reflected in the charges in the indictment and the other evidence of the complainant.

22. In respect of the specific offences that plead circumstances of aggravation, and I am referring to counts 8, 10 and 12, the circumstance of aggravation pleaded in each count was, that the victim was “under the authority” of the prisoner. This was quite clearly so if the foundation allegation was established. Where it is a pleaded circumstance of aggravation, that has been taken into account in the fixing of the maximum penalty. However, it is correct to say that in respect of all other offences where that particular circumstance of aggravation has not been pleaded, the fact that the offences were committed by the prisoner when the victim was under his authority is clearly an “aggravating” factor as identified in the relevant subparagraph in s 21A(2) Crimes (Sentencing Procedure) Act 1999. I will hereinafter refer to that as “the Act“ because there are quite a number of provisions of that Act that are directly relevant to this sentencing exercise apart from s 21A and the two sections I identified earlier, s 54A(2) and s 54B(2) as they relate to offences that have a “standard non-parole period.” In that regard, of course, the relevance of the middle range of objective seriousness, in respect of offences for which there is a standard non-parole period, is concerned with only the “objective circumstances of the offending,” s 54B(2) relates to the fixing of a non-parole period taking into account other factors including findings of special circumstances, of relevant mitigating factors or other matters that might otherwise mitigate the objective penalty to be imposed.

23. The prisoner has been in custody on two occasions, he was arrested on 7 August 2018 and bail refused, but then granted bail on 11 October 2018. He was refused bail again after the verdicts, as must follow given the number of offences and their seriousness. He has been in continuous custody since that date. I have taken into account all pre-sentence custody and thus the orders I make in relation to the aggregate sentence concern the commencement of the sentence on 23 September 2019. That is the date both parties told me was the relevant date taking into account all matters.

24. The victim was born in July 1999. I propose to just briefly state the facts.

25. Given the way the trial was conducted the facts are to be found consistent with the jury’s verdicts from the evidence of the victim. Counts 1 and 2, as I said, were related offences committed at the family home at Richmond when the victim was six or seven years of age. The victim was reading a book to her father before bed. On one occasion, the prisoner was lying next to the victim in her bed under the covers, he pulled down the victim’s underpants to her ankles and then started to rub the outside of the victim’s vagina with one of his hands, which comprises the indecent assault allegation. He then sat up, bent over and started licking the victim’s vagina with his tongue. He eventually stopped, kissing the victim on the forehead and saying, “Good night.” That is the sexual intercourse count, count 2. As I said, aggravating factors are that the offence was committed under authority and I do not propose to repeat that proposition in relation to the other counts. These offences were committed in the home of the victim, which was also the home of the prisoner. The issue of offences being committed in the home of the victim will reflect varying degrees of gravity. One might have thought in the usual case, a passer-by breaking into the home of a victim and committing a crime against that victim where this is a circumstance of aggravation would be committing an offence with that aggravating factor a more serious matter. But it is serious enough for a child to be sexually assaulted in her own home. This is where a child should expect to be free from interference.

26. I take into account in considering the objective seriousness of the offence by reference to the middle range of objective seriousness, the absence of planning in all matters. I have taken into account the relevant age of the victim to that of the age prescribed in the legislation and in relation to these matters. Bearing in mind all the circumstances, I have determined that the two offences are just below the middle range of objective seriousness.

27. In relation to count 3, the offence committed at the grandmother’s home, that is the mother of the prisoner, I have taken into account the age of the victim, the fact that the victim was under his authority as I said, and the lack of planning. But also noting it was committed in the course of conduct over a period of time.

28. The prisoner took the victim into the bedroom at the rear of the house, undressed the victim until she was naked, took off his clothes leaving his underwear on, the prisoner and the victim lay on a double bed, the prisoner made the victim remove his underwear by pushing her down towards his underwear and she removed his underwear with her hands. He then pushed the victim’s head down onto his penis and forced his penis into her mouth and made the victim suck his penis for about five minutes. He pulled his penis out of her mouth before ejaculating. This offence, having regard to the age and the character of the sexual intercourse, a matter obviously taken into account in respect of all counts where sexual intercourse is alleged, is in my view within the middle range of objective seriousness.

29. I am appreciative of the fact that the middle range of objective seriousness of any offending may not necessarily be a narrow range. It is not a line. It is a matter involving a width, if I could use that expression, of conduct. Spigelman CJ in 2004 described it as “not necessarily a narrow band”. But that offence is well within the middle range of objective seriousness.

30. Counts 4 and 5 are crimes committed at the family home in Bligh Park. The age of the victim, as I said earlier, was seven to nine. The family lived at this home until 9 June 2009 when the victim’s mother and the prisoner separated. At one point, the prisoner was lying next to the victim on top of the bed covers and the victim was reading to the prisoner. They were head to toe to each other. The victim was dressed in boxer style shorts. The prisoner pulled the complainant’s pyjama pants down to under her knees then pulled his pants down exposing his penis. He rubbed the outside of the victim’s vagina with his hands giving rise to the indecent assault charge and then forced his erect penis inside the victim’s mouth and made her suck his penis. Again, he removed his penis before ejaculating. He then sat up in the bed and told her not to worry about anything and not to say anything.

31. This is an offence, having regard to the relevant aggravating factors and the mitigating factor that I identified of not being planned is, in my view so far as the sexual intercourse is concerned, well within the middle range of objective seriousness noting the age of the victim and, of course in relation to all counts, the difference between the age of the prisoner and the victim and his relationship to her.

32. Count 8 is an offence committed when the victim lived in Orange when she was 12 or 13. Her age has been taken into account. The prisoner was responsible for the care of the children of the marriage. I have taken that matter into account as a matter that may well have provided some domestic pressure upon the prisoner with other commitments he had with work and the like. I am not making excuses for him, but have to see the matter in the reality of the circumstances as they emerged in the trial.

33. I want it to be understood, of course, I am not making any comment about the domestic relationship between the prisoner and his wife and the reasons for separation or the fact the prisoner took up the care of the children, I am not the Family Court of Australia and all I can do is note the reality as it was explained to me.

34. This was an offence committed in the prisoner’s bedroom at the home at Orange. The victim’s brother was in the home watching television. The prisoner and the victim lay down on the bed. The prisoner pulled the victim’s underwear away from her. The complainant’s brother then walked in and the prisoner pretended to be asleep. The prisoner told the complainant’s brother that he would be out soon and to go away and then after he left, the prisoner lay on top of the covers, forced the victim’s head down onto his erect penis, made the victim put the penis in her mouth and suck it. Again this lasted for a couple of minutes until the victim pretended she needed to go to the toilet and she left to go to the bathroom. The prisoner exhibited some signs of anger towards her afterwards, not of great moment in the circumstances.

35. This offence, noting the age of the victim and within the range of ages contemplated by the section, noting that it was an offence committed in the home of the victim and the pleaded aggravated factor, is, in my view, within the middle range of objective seriousness.

36. I noted, as I said earlier, there was evidence from the son of the prisoner, the brother of the victim, contradicting the victim in some material respects. But as I said, that evidence did not raise a reasonable doubt about the guilt of the prisoner.

37. Counts 9, 10, 11 and 12 were offences committed at an address in Orange. By this stage the prisoner was in a new relationship and his partner and her children had moved into the house. The victim was 14 or 15 years of age and the offences were committed in the lounge room watching television. The prisoner put his hand inside her underwear and using his right hand and fingers rubbed her vagina on the outside. This is the indecent assault. It is, in the context of the noted aggravations and particularly aggravations under s 21A(2) and the mitigating factor I earlier identified, a matter within the middle range of objective seriousness allowing for the age of the victim pleaded in the indictment.

38. The sexual intercourse involved the prisoner placing his finger inside the victim’s vagina and moving it in and out of her vagina. This offence I find within the middle range, at the lower end of the middle range, of objective seriousness. The prisoner removed the victim’s pants. He rolled the victim over so she was facing him. He forced the victim’s hand onto his penis and made her masturbate him by moving her hand up and down. This offence I find at lower end of the middle range of objective seriousness but it has to be assessed in the understanding of the course of conduct that the facts revealed from the evidence.

39. Then, finally, the final act of the prisoner. He inserted his erect penis into the victim’s vagina and commenced moving back and forth. The victim felt quite uncomfortable. The partner of the prisoner came home and the prisoner stopped. The act was interrupted by the arrival of a third person. The prisoner told the victim to put her pants back on and she got up and pretended nothing had happened. Again in the context of her age at the time, in the context of the offence occurring within her home, allowing for the fact that it was unplanned, this offence is again, in my view, within the middle range of objective seriousness but an upper end of the middle range of objective seriousness, certainly more serious than the crime reflected in count 10.

1. The prisoner was arrested on 7 August 2018, shortly after the conversation that was recorded in exhibit D on 1 August 2018. He participated in an electronic interview but declined to specifically answer the matters arising from the allegations, although he obviously had the right to silence.

2. The prisoner has no significant criminal convictions. There are some findings of guilt in 1998 that the prisoner has little memory of and the compensation particularised is so slight as to represent offences of no significance whatsoever. He has a ‘high range PCA’ in May 1999, but again in context it is not a significant conviction. There is some suggestion the prisoner had difficulties with alcohol, particularly up until about 2012-2013. But I am prepared to sentence the prisoner on the basis that a mitigating factor arising under s 21A(2) is that he has no significant criminal convictions.

3. That having been said it is to be noted, in the context of considering each offence, that as each offence was committed whilst the prisoner had no convictions at that time in respect of the conduct, he was at the time of committing particular offences, a person who was then unconvicted, but to be convicted, in respect of prior conduct, except of course in respect of counts 1 and 2.

4. So to put that matter in a simple way. By the time I turn to counts 9, 10, 11 and 12 reflecting upon his “good character” I am to bear in mind that his good character is to be assessed in the context of his prior unconvicted, uncharged conduct at the time of that offending. Thus, his “good character”, or his lack of “prior convictions” or significant prior convictions, diminishes over time as a significant matter. But it still remains relevant up until the consideration of the last count.

5. With regard to the victim, she read to the Court a victim impact statement which I have taken into account. She was articulate and eloquent. She was very concerned to ensure that the prisoner understood precisely what the effect upon her was of his conduct.

6. Clearly, having regard to the facts established before the jury, the prisoner had no regard to the potential impact or the real impact of his conduct upon the victim and still maintains his innocence, notwithstanding inexplicable, reaction the prisoner had during an unguarded conversation which was recorded by the police.

7. The victim also identified for family members, matters that she said they needed to understand and reflected upon the effect upon her of the prisoner’s conduct and the bringing of this matter to the attention of the authorities and the prosecution of the prisoner. I have taken all of those matters into account.

8. In every case of this type, or every case involving sexual assault upon a victim, of course, the effect of the conduct of the relevant offender will vary. That is to be understood. But even before the receipt of victim impact statements, the effect upon victims and its relevance to assessing the objective seriousness of the offence was well understood by courts.

9. It is often misrepresented the severity of penalties that have been imposed on offenders a long time before the Crimes (Sentencing Procedure) Act 1999 for offending of this type or other offences of serious sexual assault. A sentencing judge has always been entitled to have regard to the harm done to the victim as a consequence of the commission of the crime and so was held by the High Court in the decision of Siganto v R (1998) 194 CLR 656 particularly at [29]. There are a plethora of decisions of the Court of Criminal Appeal reflecting the same thing.

10. Of course, the consequences of conduct are to be taken into account. It is to be borne in mind that s 3A Crimes (Sentencing Procedure) Act reflects upon the ‘purposes of sentencing’ and amongst the purposes of sentencing, is the requirement to recognise the harm done to the victim of the crime and, in the appropriate case, the community. Dwelling for a moment on s 3A, I am also required to ensure that the prisoner is adequately punished. I have to prevent him and others from committing similar offences, protecting the community from the offender in the appropriate case. It seems though, the prisoner’s criminality is confined to his offences against his daughter.

11. I am required to promote his rehabilitation to the extent that that is possible, make him accountable for his actions but also denounce his conduct. It goes without saying conduct for which the prisoner has been found guilty requires very stern denunciation. It is entirely unacceptable for a father to behave this way towards his daughter.

12. So far as victim impact statements are concerned I am required to consider the victim impact statement in accordance with the requirements of the Act, particularly noting s 26 of the Act. I have had regard to decisions such as Tuala [2015] NSWCCA 8, particularly at [77] and Youkhana [2004] NSWCCA 412, particularly at [26], amongst other decisions that reflect upon victim impact statements and their relationship to a consideration of matters requiring proof beyond reasonable doubt.

13. It is established beyond reasonable doubt, just by reference to the allegations against the prisoner and the context in which they occurred, that there has been harm to the victim. That is a relevant matter to be taken into account under s 21A (1) of the Act. But in the circumstances, that is not a matter where I could conclude that ‘significant harm’ in the context of that as an aggravating factor under s 21A (2) (g) has been established. Lest it be misunderstood what I have said, that is not a finding that there has not been harm to the victim. It is just that, as an additional aggravating factor, the victim impact statement in its terms and its form does not establish that additional matter.

14. The Community Corrections Service produced a Sentencing Assessment Report (SAR) and that Report would seem to take into account a Corrective Services psychological report that had been prepared but not provided to me when the matter was last before me two weeks ago. I have already placed on the record the receipt of that report after the last appearance of the parties. It is a most regrettable matter. I can tell the parties and anybody interested in the case, it seems as though the report was for some reason by mistake sent to Coffs Harbour and, as I said, was not brought to my notice until after the last proceedings.

15. I note what the Crown has said about the SAR and it is correct to say that the reporter has acted upon it would seem, from the terms of the report, “incomplete” information. However, there are matters within the report, as the parties acknowledge, that can be taken into account. The prisoner was cooperative with the assessment process. He denied the charges and maintained his innocence. He denied acts of sexual deviance. He did not identify himself as a sexual offender. He denied being sexually attracted to children, but he had no empathy with the victim in the context of denying the allegations made by her. He had, as I have found, a limited criminal history. Because he maintains his innocence it will be difficult to find motivation for him in programs designed in custody and out of custody to address his proven offending behaviour. He would require at least two years after sentencing to be able to complete a relevant in custody program, if he was eligible for it, and if he was assessed as suitable for a community based sexual offender treatment program. That program may vary from six to 12 months but as much as two years may be required to complete the program. The sentences I have foreshadowed of course would give plenty of time for both options to be pursued if in fact they are realistic.

16. The assessment of the psychologist, however, as reflected in the report of the Community Corrections Service, identifies the prisoner at a ‘low risk’ of sexual re-offending. I think that assessment is correct. On the face of it of course a judge dealing with a person who commits crimes of this character would approach the person’s prospects of re-offending with considerable circumspection. If the prisoner had a history of offending of this type before or since the offences with which I am concerned, clearly his conduct would show that he is a proven risk to others and particularly to the community. But in the circumstances of the evidence provided to the Court, the particular relationship the prisoner had with the victim and obviously the lack of opportunity for the prisoner to act this way towards that victim again, it seems to me, with respect, allowing for such period of time as he is required to serve in custody, that there is in those circumstances a low risk of re-offending.

17. However, having said that, it is not to be taken that I view the prisoner’s assessment of himself that I quoted from the report as being a realistic assessment. He has a son who gave evidence before me. He was an impressive young man, as of course the victim was. He has a child from his current relationship and his partner has two school-aged children. I know little of the dynamics of that relationship in terms of the future but clearly the prisoner, whatever sentencing orders finalise this matter, whether they are my orders or those of the Court of Criminal Appeal or the High Court of Australia, will spend quite a number of years in custody before he can be released to the community.

18. I have borne in mind the fact that he took responsibility for the sole custody of his two older children which is to his great credit.  Again, I make no comment adverse to his former wife and mother of the two children. He is said to have support from his “immediate family”. I take that to be his family other than his daughter. I believe his son would still support him.

19. The prisoner was employed or served with the Royal Australian Air Force for a number of years until 2009. There was evidence before the jury that he had some overseas service as I understood it, in Iraq at least and possibly Afghanistan, for relatively short periods of time. He has been diagnosed with military service related ‘post-traumatic stress disorder’ in 2012 and I have a report tendered on his behalf in relation to that matter which I will come to shortly.

20. He has been classified as ‘totally and permanently unfit for work’ and since 2012, as I understand it, he has been in receipt of a Department of Veterans Affairs pension to which no doubt he is fully entitled. His attitude to the offending I need not dwell upon in the context of his protestations of innocence. He has indicated, however, a willingness to engage in programs that may be available to him. I have reflected upon matters of alcohol abuse in the past. But the extent to which alcohol has played a role in this offending, I cannot divine from the evidence at trial. He has moderated his alcohol consumption. He has been a heavy smoker. His mental health, particularly prior to the diagnosis of PTSD and subsequently, has been a difficult matter for him to manage and he has been subject to both counselling and antidepressant medication.

21. He is willing to undertake community service work if provided with that opportunity. The matter to be borne in mind in respect of his risk of reoffending is to acknowledge the lack of significant criminal history other than reflected in these offences and the lack of offending since the last offence committed against the victim. So far as the material presented on behalf of the prisoner I have a report addressed to his solicitor from Ms Johnson, a forensic psychologist, who would appear to have had regular counselling and other contact with the prisoner.

22. She notes regular psychological treatment sessions since January 2012 and the diagnosis of “military service - related post-traumatic stress disorder.” He initially presented with work stress when he was initially assessed. He was a manager of an earth-moving company, he was caring for his two teenage children, he was experiencing high anxiety, difficulty sleeping and a sense of impending doom. These conditions had apparently been in place for some period of time and I have borne that in mind in relation to the timing of the offending. Particularly, offences pleaded in the indictment for the period of time after he moved to Orange. Although they provide no explanation, I hasten to say for his criminal conduct whilst in Orange bearing in mind he had already embarked upon the course of conduct that I identify. He was sleeping poorly, he was smoking too much, he was drinking too many energy drinks and coffee.

23. He was encouraged to seek medical advice and it became clear that, in fact, what he was presenting with at that time was not just isolated to his then current circumstances but his condition had its origins in his military service. The psychologist cannot confirm that the disorder of the prisoner caused or contributed to the offences in light of the prisoner’s denial. His PTSD is chronic. It affects all aspects of his life. He has chronic sleep disturbance, he has feelings of great anxiety, he has difficulty concentrating and he has reported a severe effect upon him of his arrest. I understand he was assaulted in custody on the first occasion he was there. I acknowledge in custody he was at risk from others and maybe, notwithstanding the fact that he is a formidable man physically, a person who is vulnerable in custody. He has prescribed antidepressant medication. He was not provided with his medication for a few days after being taken back into custody, but that situation has been rectified. Unless he is able to maintain his medication he would not function well in prison. That is the opinion of the psychologist. He may become a risk to himself. Of course, in custody he not allowed to smoke and he will need to address that in some other way. It may be best in the long term for his health. He requires psychological treatment sessions and I accept that that would be so in custody and also when he is released. I have taken that into account as a matter impacting upon his circumstances of custody making his period in custody more difficult than it may be for others and also is a matter relevant to the assessment of relationship of the non-parole period to the balance of sentence.

24. In that sense, I have concluded pursuant to s 44 of the Act that there should be an adjustment of the relationship of the non-parole period to the balance of sentence to permit an extended period of supervision to assist the prisoner to resume community living, but also to have opportunity to address those matters that will need attention on his release to custody.

25. The prisoner has some physical injuries. He has had a lumbar back injury, reported back as early as 2004, and this has caused considerable pain in a range of ways and over a period of time. He has been referred whilst in the service of the Royal Australian Air Force to a specialist for treatment, preferring not to undergo cortisone injections. He has had difficulties in the past in performing his duties because of his back problems. These problems I am sure are chronic and they will present difficulties for him whilst in custody.

26. So far as the submissions of the parties were concerned, it is clear one might have thought from the matters that I have identified thus far, that a number of the submissions made by the parties about the objective circumstances of the offending and related matters have been taken into account as well as some of the subjective issues.

27. Learned counsel for the prisoner provided the Court with a procedural history which I have taken into account. It is acknowledged that I am required to sentence the prisoner on the facts consistent with the verdicts of the jury. This is the case in the context of the allegations proven beyond reasonable doubt where there are really no grey areas for determination.

28. I have taken into account the subjective features identified by learned counsel for the prisoner, I take into account his current domestic circumstances and the dependence upon him of his family. I have taken into account, of course, the disruption to his family that has occurred arising out of him conviction for these matters. But this is a matter that is also pertinent in the interests of the victim because she has to suffer the consequences of this as well and that has been acknowledged.

29. I bear in mind the support of the family will continue and I have accepted that he did not have a significant criminal history. His counsel made written submissions about his mental health and that is a matter that specifically arises in this matter for consideration in the context of the principles summarised, for example, in the 2010 decision of De La Rosa [2010] NSWCCA 194, particularly at [177] - [178], where the then Chief Judge at Common Law, McClellan J, identified from authorities that had gone before a number of relevant considerations when dealing with an offender with a proven mental illness or mental disability.

30. The matters his Honour identified that might be relevant to the assessment of the objective offending, because they were causally connected (or not as has been explained in the later decision of Kearslely) do not arise. But clearly the issue of the circumstances of custody of the prisoner are a relevant matter to take into account in his “favour.” I have taken into account the fact that he has other family dependent upon him at the time of coming into custody. But their dependency upon him needs to be considered in the context of the requirement to give full weight to the purposes of sentencing that I earlier identified. His counsel submitted, and I accept, that all time in custody should be taken into account.

31. I am prepared to accept by reference to the terms of s 21A(3) of the Act that he does have good prospects of rehabilitation. I am prepared to accept in the context of the character of the offending with which I am concerned for this sentencing exercise that he is unlikely to reoffend having regard to his lack of criminal history before the course of this offending, his likely age when he is released from custody and the assistance of professional guidance that he has sought and will need to seek on his release. Of course, I also am prepared to find that, as I have said earlier, that he was at the time of the commencement of his offending a man of good character, having regard to his military service and his family commitment and the like. That good character, as it is a relevant matter in this sentencing exercise, diminishes by reference to the course of conduct up until the last offences in time. No issue of contrition arises in this particular matter. But then, the prisoner is not given extra time in custody for not being contrite.

32. It is submitted that I should have full regard to the issue of totality of sentencing and I certainly do. That is a critical matter in this exercise. A highly pertinent matter and it certainly is a matter that needs to be considered in the context of the fact that I have determined that there be an aggregate sentence. The issue of totality of criminality has been discussed in a range of decisions of high authority. Particularly, decisions of the High Court such as Johnson v The Queen (2004) 78 ALJR 616, particularly, at [18], and earlier than that in the landmark decision of Mill v The Queen (1988) 166 CLR 59, particularly at [63] where the majority of the High Court cited the learned text of D A Thomas, the outstanding English intellectual, “Principles of Sentencing.”

33. Then there are the observations of Street CJ from the NSWCCA, in the decision of R vHolder (and anor) (1983) 3 NSWLR 245, particularly at p 260, where his Honour pointed out, perhaps in the best expression of what is the practical application of a totality principle:

“The principle of totality is a convenient phrase descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentence is appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances.

In such a situation the sentencing judge will evaluate in a broad sense the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary whether by telescoping or otherwise in the aggregate sentence in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

73. Since his Honour’s observations, and the decision of Mill v The Queen, the legislature has permitted, by reason of s 53A of the Act introduced approximately nine years ago, the capacity of judges to express an aggregate sentence, but with the obligation to fix indicative sentences, including relevant non-parole periods where a particular offence has a standard non-parole period.

74. In fixing an appropriate sentence for an offender the maximum penalty provides a yardstick for the seriousness of the offending per se. The judge is required to then assess where the offence fits within the range of offending contemplated by the section, then give full weight, having assessed the objective seriousness of the offending, to all the relevant mitigating factors. This is sometimes called the intuitive synthesis or instinctive synthesis method of sentencing approved by the High Court in Markarian v The Queen [2005] HCA 25, particularly identified by McHugh J at [51] - [52]. There is no magic to this, but the Court is not required to undertake the specific mathematical task that the process that Street CJ identified requires.

75. Another particular decision worth citing just by reference, and very much at the forefront of the proper approach to sentencing for individual offences, is the High Court judgment of Pearce v The Queen (1998) 194 CLR 610, particularly at [45], where the majority of the High Court in a conviction appeal identified the need for transparency in sentencing to ensure that if an accused is acquitted, for example on appeal, the appropriate measure of penalty for each offence for which he remains to be sentenced can be properly identified.

76. Another decision worth mentioning in passing is the very learned Hall J’s judgment in R vXX (2009) 195 A Crim R 38, particularly at [52], where his Honour set out eleven principles that arose from recent decisions of the Court of Criminal Appeal to his judgment concerning the exercise of the discretion to impose sentences that are either concurrent, or consecutive, or partly accumulative.

77. In relation to the oral submissions of counsel for the prisoner he made submissions about the objective seriousness. He essentially identified all the offences as being within the middle range of objective seriousness. I have made some slight distinctions, the one offence perhaps that may have fallen outside the mid-range of objective seriousness on the more serious side is of course the allegation in count 12 involving penile/vaginal intercourse.

78. The learned Crown identified matters relevant to the assessment of the objective seriousness that I have already referred to. He properly identified the prisoner’s conduct as serious misbehaviour, noting particularly the relevance of the prisoner’s authority over the victim and the fact that the offences were committed in the victim’s home, albeit that it was his home, but for count 3 which occurred at the home of the prisoner’s grandmother. I cannot find that as an aggravating factor, that it was in the grandmother’s house, but one might have thought, again the victim might feel safe in the home of the grandmother. But it does not permit of a separate aggravating factor under s 21A(2) of the Act.

79. In this particular matter, and I do not have a transcript of a fortnight ago, there was some reference to the issue of whether the accused’s offences involved a breach of trust. Of course, when a breach of trust is pleaded or identified as being relevant in a sentencing exercise, it arises in circumstances where there is a “special relationship” between the victim and the prisoner. It is to be fairly said that in cases such as this, being under the authority of a particular offender very much overlaps with considerations that arise in relation to a breach of trust. Ultimately I do not believe I need find breaches of trust as additional aggravating factors under s 21A(3) to the counts for sentence.

80. I believe I have taken into account all relevant matters that were raised with me by the parties and emerged from the trial. Of course, if the offender had prior convictions of this type, if he did not have available to him a number of the mitigating matters relating to his personal circumstances and his employment history, which I accept reflects him to be a person of industry throughout his life, I would have imposed a substantially greater sentence.

81. Thus Mr B, I propose to sentence you in the following terms. In respect of all offences you are convicted.

82. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 you are sentenced to an aggregate sentence of 15 years imprisonment to commence on 23 September 2019 and that will expire on 22 September 2034. I fix a non-parole period of ten years for the aggregate sentence commencing on 23 September 2019 expiring on 22 September 2029. I have already explained to you that that represents the minimum sentence, as the head sentence reflects the maximum sentence or the total sentence subject to the rights of appeal of yourself and the Crown.

83. The indicative sentences I impose are as follows: In relation to count 1, the indicative sentence is two years imprisonment with a non-parole period of 12 months imprisonment, this being the first offence in time.

84. Count 2, the indicative sentence is four years imprisonment with a non-parole period of two years imprisonment.

85. Count 3, indicative sentence is five years imprisonment with a non-parole period of three years imprisonment.

86. In relation to count 4 the indicative sentence is three years imprisonment with a non-parole period of two years imprisonment.

87. Count 6, the indicative sentence is six years imprisonment with a non-parole period of four years imprisonment.

88. In relation to count 8 which does not have a standard non-parole period the indicative sentence is six years imprisonment.

89. In relation to count 9 the indicative sentence is three years imprisonment with a non-parole period of two years.

90. In relation to count 10, the indicative sentence is five years imprisonment. There is no standard non-parole period for that offence so I am not required to fix a non-parole period.

91. In relation to count 11 the indicative sentence is four years imprisonment with a non-parole period of two years and six months imprisonment.

92. In relation to count 12 the indicative sentence of imprisonment is seven years. There is again no standard non-parole period for that offence. There is no need to fix a non-parole period for the indicative sentence.

93. Those sentences reflect the substance of the individual sentences leading to the aggregate sentence that I have identified.

94. Yes Mr Crown are there any matters from you?

95. JONES: Your Honour not substantially with the sentence proceedings. Mr Bailey’s asked that I raise with your Honour the possibility of the Court imposing a final AVO.

96. HIS HONOUR: Is it a practical matter?

97. JONES: That’s one of the things that your Honour can have regard to, the length of the sentence--

98. HIS HONOUR: Look in the context of the non-parole period I fixed, I think it’s a matter to be addressed sometime in the future.

99. JONES: Yes your Honour I hear your Honour.

100. HIS HONOUR: I think at this point, if it was likely that he was to be released in 18 months I would fix an AVO that ran for some period of time for the protection of the victim. But I think practically, it’s a matter that can be addressed at a future time. I’m sure the victim will have an opportunity at some future time to get advice in relation to what needs to be done. I’m sure the New South Wales Police or the Director of Public Prosecutions could take up the matter in the appropriate jurisdiction.

101. JONES: I accept that your Honour, thank you.

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Decision last updated: 10 June 2020