R v PC

[2020] NSWDC 948

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v PC [2020] NSWDC 948

Hearing dates:

Friday 1 May 2020

Date of orders:

Tuesday 2 June 2020

Decision date:

02 June 2020

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

The offender is convicted on each of the 14 substantive offences.

The offender is sentenced to an aggregate non-parole period of 18 years with parole thereafter of 6 years giving rise to an overall term of imprisonment of 24 years.

Form 1 offences: A total of 12 offences contained within four separate Form 1 documents, taken into account on four substantive offences.

Catchwords:

CRIME — Historical child sexual assault offences — Sexual intercourse with child <10 — Circumstances of aggravation — Aggravated act of indecency towards a child <10 — Aggravated indecent assault of a child <10 — Sexual intercourse with child >10 <14 — Digital penetration — Penile/vaginal intercourse — 5 female victims — Significant age disparity between victims and offender — 26 separate offences — Guilty pleas on 14 counts — 12 separate Form 1 offences — Offender in position of authority — Offender in relationships with mothers of victims — A degree of cruelty and manipulation — Threatened victims into staying silent –— Offender has no history of mental health problems — Offender has no prior criminal history — Offender has no history of illicit drug use — Offender denied having sexual attraction to young girls — Assessed as having a moderate risk of reoffending.

Legislation Cited:

Criminal Procedure Act 1986 (NSW);

Crimes Act 1900 (NSW), ss 66A, 66B, 61E(1), 61J(1), s 61M(1)-(2);

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25AA(3), 53A.

Cases Cited:

R v Thompson and Houlton (2000) 49 NSWLR 383

Category:

Sentence

Parties:

Regina (The Queen)
PC (The Offender)

Representation:

Counsel:
Ms. J. Kelton (The Crown)
Mr. J. Gaitanis (The Offender)

Solicitors:
Ms. L. Hall (The Crown)
Mr. M. Ramsland (The Offender)

File Number(s):

2017/265432

Publication restriction:

Section 578A of the Crimes Act 1900 (NSW) applies: There is to be no publication of the names of the complainants or anything which may identity the complainants in this matter.

Judgment

1. HER HONOUR: The offender is before the Court for sentence following pleas of guilty to 14 counts in an indictment dated 8 May 2019, with 12 further offences to be taken into account on four separate Form 1 documents. These 26 separate charges are all offences of child sexual assault committed against five different victims over different time periods between 1987 and 2010 and thus fall into the general description of historical child sexual assault offences.
    

2. The relevant provisions of the Crimes Act 1900 (NSW) apply which means that there can be no publication of anything that might identify any of the complainants. As such I will refer to each of them in this judgment by initials. The first group of offences relates to the victim AJ and specifically they are the following:
    

Count 2

3. That between 1 January 1987 and 26 January 1988 the offender attempted to have sexual intercourse with AJ, a child who was under the age of 10, namely 5 or 6. The offender himself was 14 or 15 at the time. This offence is brought pursuant to s 66B of the Crimes Act1900 and the maximum penalty for the relevant time period is 20 years imprisonment.
    

Count 4

4. That during the same event the offender had sexual intercourse with AJ, a child then under the age of 10. This is an offence contrary to s 66A of the Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment for that time period. When sentencing for this offence the offender asks that I take into account two additional offences of indecent assault, namely, sequences 1 and 2 which appear in a schedule to a Form 1 signed by him and on behalf of the DPP. They are both offences of indecently assaulting AJ on the same occasion on which counts 2 and 4 were committed and in two different ways. Each is brought pursuant to s 61E(1) of the Crimes Act 1900, then in force, and each would carry a maximum penalty of 4 years imprisonment if sentenced separately. The next group of offences relates to the victim TR, and specifically they are the following:

Count 7

5. That between 28 September 2001 and 27 September 2002 the offender had sexual intercourse with TR, a child under 10, namely 9, at the time. This is also an offence contrary to s 66A of the Crimes Act 1900, carrying a maximum penalty of imprisonment of 20 years imprisonment.
    

Count 9

6. That between 28 September 2002 and 27 September 2003 the offender had sexual intercourse with TR, who was under 16, namely 9, at the time. This is a charge of aggravated sexual assault, contrary to s 61J(1) of the Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment.
    

Count 10

7. That between 1 March and 31 December 2003 the offender had sexual intercourse with TR, who was under the age of 16, namely 10 or 11. This is also an aggravated sexual assault offence brought pursuant to s 61J(1), carrying a maximum penalty of 20 years imprisonment but also with a standard non-parole period of 10 years. The standard non-parole period came into operation for this offence on 1 February 2003.
    

Count 11

8. That between 1 September and 31 December 2003 the offender had sexual intercourse with TR, who was under the age of 16, namely, 10 or 11. It is also contrary to s 61J(1) of the Crimes Act 1900 with a maximum penalty of 20 years and a standard non-parole period of 10 years. The offender asks that when sentencing him for this latter offence I take into account four additional offences found in the schedule to a second Form 1, signed by him and on behalf of the DPP, namely, sequences 6, 7, 10 and 31.
    

Form 1 offence: Sequence 6

9. This is a charge of aggravated act of indecency towards a child under 10 committed between 28 September 2001 and 27 September 2002, contrary to s 61E(1) of the Crimes Act 1900 which would carry a maximum penalty of 4 years if sentenced separately.
    

Form 1 offence: Sequence 7

10. This is a charge of aggravated indecent assault of a child under 10, between 28 September 2001 and 27 September 2002. It is contrary to s 61M(2) of the Crimes Act 1900, which would carry a maximum penalty of 10 years imprisonment with a standard non‑parole period of 8 years if sentenced separately.
     

Form 1 offence: Sequence 10

11. This is a charge of aggravated sexual intercourse with a child under 16 between 28 September 2002 and 27 September 2003, contrary to s 61J(1) which would carry a maximum period of 20 years imprisonment if sentenced separately.
     

Form 1 offence: Sequence 31

12. This is a charge of an aggravated indecent assault of a child under 16, between 1 January and 31 December 2004. It is brought contrary to s 61M(1) of the Crimes Act 1900 and would carry a maximum penalty of 7 years imprisonment with a standard non-parole period of 5 years if sentenced separately.
     

13. The next substantive matter for sentence involves the victim CR. There is one count, count 13:
     

Count 13

14. This is a charge that between 1 January 2002 and 30 June 2003 the offender had sexual intercourse with CR, who was then a child under the age of 10, namely, 7, 8 or 9. This is an offence contrary to s 66A of the Crimes Act 1900 (NSW) which for the relevant date range carries a maximum penalty of 20 years imprisonment. There is no standard non-parole period, because the date range charged covers the period both before and after the introduction of a standard non-parole period for this offence. The next group of offences involves the victim DJ and is as follows:
     

Count 15

15. That between 15 June and 31 December 2007 the offender had sexual intercourse with DJ who was a child under the age of 10, namely 7 or 8 years old. This is an offence contrary to s 66A of the Crimes Act 1900 which carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 15 years at the relevant time.
     

Count 16

16. This is a further charge of sexual intercourse with DJ, a child under the age of 10, during the same time period, also brought pursuant to s 66A of the Crimes Act 1900 and carrying the same penalty. Counts 15 and 16 are the same incident.
     

Count 18

17. This is a further charge of sexual intercourse with DJ, a child under 10, during the same time period and also pursuant s 66A of the Crimes Act 1900, attracting the same maximum penalty of 25 years with a standard non‑parole period of 15 years. When sentencing for this offence the offender asks that I take into account four additional offences to be found on a third Form 1 document, also signed by him and on behalf of the DPP. They are sequences 16, 34, 21 and 37.
     

Form 1 Offences: Sequences 16 and 21

18. These are both charges of aggravated indecent assault, contrary to s 61M (2). If sentenced separately each of these offences carries a maximum penalty of 10 years with a standard non-parole period of 5 years.
     

Form 1 Offences: Sequences 34 and 37

19. These are both charges of sexual intercourse with a child under 10, occurring during the same time period. They are also contrary to s 66A of the Crimes Act 1900 with the same maximum penalty and standard non-parole period.
     

20. The first of these Form 1 offences, sequence 16, occurred immediately before counts 15 and 16. The second, sequence 36, occurred immediately before count 18. The third Form 1 offence, sequence 21, occurred immediately before count 20, and the fourth Form 1 offence, sequence 37, occurred during the same time period and is a separate charge of sexual intercourse with a person under 10, but not the subject of a substantive offence for sentence.
     

Count 20

21. That the offender had sexual intercourse with DJ during the same time period when she was a child under the age of 10. That is also contrary to s 66A of the Crimes Act 1900, carrying the same maximum penalty and standard non-parole period.
     

22. The next group of offences involves the victim JW as follows:
     

Count 23

23. This is a charge of aggravated indecent assault of JW between 1 January 2008 and 21 May 2009, contrary to s 61M(2) carrying a maximum penalty of 10 years imprisonment with a standard non-parole period of 8 years.
     

Count 25

24. This is a further charge of indecent assault of JW, who was a child under 16, namely, 8 or 9, occurring between 21 May 2009 and 31 December 2010. It is also contrary to s 61M(2) with the same maximum penalty and non-parole period. When sentencing for this offence the offender asks that I take into account two additional offences to be found in a fourth Form 1 document, signed by him and on behalf of the DPP. They are as follows:
     

Form 1 Offences: Sequences 38 and 26

25. These offences are both contrary to s 61M(2) being aggravated indecent assault of DW, who was a child under 16. The first occurred between 21 May 2009 and 31 December 2010. The second occurred between 1 January 2010 and 31 December 2010. The same maximum penalties would apply for each of these Form 1 offences if they were sentenced separately.
     

26. When assessing and determining any sentence it is necessary to determine the objective criminality of a specific offence on the basis of circumstances surrounding that particular offence, but there are in all sentence proceedings and sentence determinations a number of matters which are common and which are to be taken into account ultimately in determining the appropriate sentence for any particular matter in addition to a determination of the objective seriousness or criminality of a particular offence. That is the case here, even though the matters range over a considerable time period and involve five different victims. Those common factors, which are relevant here for all offences and which I will take into account ultimately in determining the appropriate sentences, are the following:
     

Guilty Pleas

27. The offender pleaded guilty to these offences on 8 May 2019. That is a mitigating factor pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and will normally sound in a discount of what would otherwise be the appropriate sentence to take into account the utilitarian value of the plea. It can also be taken into account as some evidence of remorse or contrition in the appropriate case.
     

28. In this case the offender had been arrested on 31 August 2017 and has been in custody bail refused for these matters ever since. He was committed for trial on these matters on 11 April 2018 and was arraigned in the District Court at Newcastle and pleaded not guilty on 10 May 2018. There was a trial listed to commence on 6 May 2019 with an estimate of three weeks. It was not until the morning of the trial that there was any indication that there may be pleas of guilty, and there were then discussions between the offender’s legal representatives and the DPP with those pleas that are now before me for sentence entered on 8 May 2019.
     

29. As such the pleas of guilty are late and the offender is not entitled to the high 25% discount referred to by the Court of Criminal Appeal referred to in R v Thompson and Houlton (2000) 49 NSWLR 383, to reflect the utilitarian value of the pleas. There is a utilitarian value, however, albeit in this case I accept it is small. It is a fact that a three-week trial has been avoided and that represents a utilitarian value. But further, the victims have not had to give evidence in Court to relive their experiences in the witness box and be subject to cross-examination which is part of an assessment of the utilitarian value.
     

30. However, I also accept that the matter had been prepared for trial, that all of the victims had been brought to court in preparation for giving evidence at the trial, including one being brought from overseas and another from interstate. They had all been required to re‑read their statements in preparation for giving evidence and none of them knew what was, in fact, happening until the Wednesday of the week when the trial had been listed to start on the Monday. There is a utilitarian value, but in the circumstances it seems to me it is small.
     

31. The Crown argues that a 10% discount for the pleas of guilty in those circumstances is appropriate and I accept that submission. I do note that had these matters fallen into the Early Appropriate Guilty Plea Scheme, the maximum penalty that would have been available to the offender would be 5%, given the timing of the plea. A plea of guilty may is some cases indicate remorse and contrition but for reasons I will refer to later, there is little, if any, evidence that this is the case here.
     

Sentencing practices at the time of sentencing

32. The second matter which is common to all offences is that even though these are offences which fall within the definition of historical child sexual assault offences, pursuant to s 25AA of the Crimes (Sentencing Procedure) Act 1999, the sentences which I will impose must be in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of offending, when the penalties for at least some of the offences, if not all of them, would likely to have been lower to a greater or lesser extent. The maximum penalties, and where relevant, the standard non-parole periods, however, are as at the date of offending and not the current maximum penalties or standard non-parole periods for offences under the relevant or similar sections.
     

The impact of sexual abuse on children

33. There is a third matter which I take into account as common and relevant for sentencing for all of these matters, which is referred to in s 25AA(3) of the Crimes (Sentencing Procedure) Act 1999, namely, that the sentences I impose must have regard to the trauma of sexual abuse on children as that is currently understood. That section would appear to presuppose that this had not been understood by courts before this section was added to the Act. It seems to me that that perhaps misunderstands the role that this Court has had in the sentencing of offences such as this for a long period of time. That has been very clearly the understanding of this Court and this sentencing judge over at least 30 years.
     

34. The courts generally in New South Wales have had a very clear understanding of the serious trauma inflicted on individuals who are the subject of sexual abuse as children. This has been well known to the courts since the early eighties at the very latest and has formed the basis of a whole range of practices and procedures adopted by the courts, particularly the District Court, to alleviate the impact of court proceedings on victims of child sexual assault and an increasing jurisprudence in this Court, when sentencing for such matters, taking into account the very serious trauma that sexual assault inflicts on children, often lasting for many years. The sentences which I will impose will reflect that fact, which, as I have said, has been well known to the District Court of New South Wales and its sentencing judges for well over 20 years.
     

General deterrence

35. A fourth factor relevant for all sentences to be imposed, and particularly for offences such as this, is that they must all reflect general deterrence. Child sexual assault is extremely serious. It usually leads to serious psychological consequences which last for a considerable period of time and often for a lifetime. Child sexual assault involves a complete breach of the trust that children ought to be able to have in adults, let alone adults who stand in the role of parent to them, not to use them for their own sexual purposes. The community quite rightly views child sexual assault as abhorrent and sentences for such offences must send a serious message that those who would engage in such behaviour deserve condemnation and denunciation, in part to send a message that the community at large that lengthy prison terms will be the inevitable outcome of such behaviour. Every sentence should also reflect specific deterrence for an individual offender. I will address this later in this sentence judgment. It is very clear here that for each of these substantive offences the s 5 threshold for imprisonment is well and truly crossed, and even if there were any alternative to fulltime imprisonment available, which there is not, nonetheless only fulltime imprisonment would suffice to reflect the very serious nature of this offending and take into account both the relevant maximum penalties, and, where appropriate, standard non-parole periods.
     

The offender’s subjective case

36. Another common factor relevant for all sentences imposed by any sentencing judge and here, is what is generally referred to as the subjective case for the offender. Whilst it is traditional to refer to and assess this after a recital of the facts and an assessment of objective criminality, in fact here it is a common factor for all of these sentences, so I propose to deal with it at this stage.
     

The Offenders Subjective Case

37. The offender is now 47. As I have said he has pleaded guilty to these offences and admitted his guilt in relation to the 12 offences to be dealt with on the four Form 1 documents. He has not objected to the sentence to proceed by way of the agreed facts. There is a psychiatric report before the Court from Dr Richard Furst. This is the only material I have from which I can make any findings about him or his background, apart from some of the agreed facts surrounding each of the various offences. The Crown has not objected to my doing so, although I do take into account the limitations which can arise when such histories are before the Court by way of third-party reports and in circumstances where those histories cannot be tested. However, taking into account those limitations I accept that the offender was living alone in Singleton at the time of his arrest and had been doing so for some time.
     

38. He has been married twice and has two children, a 15-year-old daughter and a 10 year old son who is the half-brother of JW. His parents also lived in the Lake Macquarie area, but I understand from the psychiatric report, have more recently moved to Queensland. He has three brothers, one older and two younger. He is an electrician/technician and has also worked as a miner. He was born and grew up in the Lake Macquarie area and went to the local primary school. There were no indications of any intellectual disability or any learning difficulties. He had interests in sport, including fencing and karate. He had friends at school. He then went onto to high school in the local area and completed his HSC. He subsequently qualified as an electrician then did an Associate Diploma in Electrical Engineering, which allowed him to work as a technician. He completed a Bachelor of Information in Science at the University of Newcastle, graduating in 2001. He is thus a person with some ability, no intellectual disabilities and with training qualifications.   
     

37. He was married for the first time at a relatively young age and was together with his first wife for about three years. There were no children from that marriage. He was married the second time to the mother of TR and CR, with whom he went to live for a period of time. He and their mother had a daughter, who is the 15-year-old daughter to whom I have already referred. They were together for about three years. He had another de facto relationship with the mother of DJ and also with the mother of JW, with whom he had a son who is now 10.
     

38. He continued to work in the electrical field in his thirties and forties, including in ticket vending systems and IT roles. He was the network engineer of the Hunter New England Heath Services from around 2004 to 2011. After that he moved to Queensland and worked in the mines for a period before returning to the Hunter area and working in mines near Singleton.
     

39. He has never had any mental health problems and never engaged in any psychiatric treatment or psychological counselling. He drank to excess during his relationship with the mother of TR and CR and the subsequent relationships with the mothers of DJ and JW, but apparently continued to work, meet his debts and his excessive drinking did not appear to have prevented him from doing so. There is no history of illicit drug use. According to the psychiatric report, since being in custody he has embraced Veganism and reports an alcohol-free life. Given that he has been in custody since August 2017 the latter is hardly surprising. He also reports engaging in meditation and has developed a strong interest in religious and spiritual matters and apparently desires to become a psychic, but it is not clear what this latter involves.
     

40. He has not ever suffered any major medical problems and appears to have come from a stable family, with both his parents having responsible jobs. He denied having any sexual attraction to young girls, but it seems to me that the ongoing nature of his offending, the fact that he continued to become attracted to women with daughters around the same age, that is between 7 and 10 when he offended against them, causes doubt whether this self‑assessment is true. I accept the history he gave to Dr Furst that he was watching a lot of pornography and drinking excessively in his late twenties and thirties, but that does not explain the earliest of the sexual offences and the deviance involved in a 15-year-old boy forcing sexual contact onto a 6 year old girl. He does not demonstrate any psychiatric illness or mental illness as such. He is, however, focussed on what he believes to be his psychic powers.
     

41. I accept from the report of Dr Furst that during his interview with him he minimised his offending behaviour and provided some explanations for it that do not match with the facts to which he has pleaded and to an extent are not logical. In particular he appears to have asserted to Dr Furst that somehow his self-proclaimed psychic abilities had a connection with his offending. He also appeared to blame some of the victims, claiming that they were curious which had led to the offending. In particular, in relation to TR and CR, he claimed that the offences had occurred where they were curious and had come into the shower where he was. There is nothing in the facts to which he has pleaded even vaguely approaching this situation. In all cases, the facts to which he has pleaded, involve his being the instigator of the sexual assaults, approaching the children, mostly in their bedrooms, and forcing sexual contact on them. He claims that he loved the children and never wanted to hurt them. That too is not supported in any way by the agreed facts. He knew that he was causing physical pain to most of them, because they were exhibiting pain. They were crying or asking him to stop, but he continued anyway and laughed at them. He knew that he was causing them emotional pain, because he threatened them, including threatening to kill a pet, threatening that their mother would withdraw her love or that others in the family would be hurt. These are not the actions of a person who loved the children and never wanted to hurt them.
     

42. I also do not accept his assertion to Dr Furst that he knew now that what he had done was wrong. That suggests that he did not know that he was doing wrong at the time of the offending. He clearly did, because for every victim, apart from CR, he threatened them in one way or another to gain their silence, knowing full well what he was doing was wrong.
     

43. I also accept Dr Furst’s opinion, despite the offender’s denials that, in fact, he does have a paedophilic disorder spanning many years which involved a pattern of entrenched sexual deviance by which he victimised, in large part, the step-daughters of multiple intimate partners over a prolonged period of time.
     

44. Dr Furst has undertaken an actuarial assessment of the risk factors surrounding this offender, using the Static-99R measuring instrument. On that assessment he is measured as a low risk of reoffending. Dr Furst, however, offers the opinion that this understates his true clinical risk of reoffending and I accept that opinion. I do not accept that the offender has a low risk of reoffending. I accept that he has at least a moderate risk of reoffending after taking into account the dynamic factors present in addition to the Static-99R assessment. These involve the fact of his demonstrated sexual deviance, the minimisation of his offending up to the present, a tendency to see himself as a good person who loved his victims, and a lack of appreciation of the impact of his offending on them. These and other dynamic factors I accept place him at least at a moderate risk of reoffending on his ultimate release from custody.
     

45. Of course, his risk of reoffending will be diminished, because he will be considerably older when he is next free in the community, and some of the dynamic factors surrounding his offending, which are even present now, are far less likely to be present. He is less likely to be involved in a series of de facto relationships with women, who are themselves young enough to have prepubescent daughters, and what is more he will likely to be the subject of conditions which prevent him from having contact with any children at all. Hopefully too, during the balance of his term in custody, he will receive some treatment which might in due course allow some insight.
     

46. I accept Dr Furst’s opinion that he would benefit from involvement in the High Intensity Sex Offender’s Treatment Program, but whether or not that occurs will depend on assessment by Corrective Services. He will also require, and no doubt will be required to undertake, psychological management and treatment when he is ultimately released to parole.
     

47. He has pleaded guilty, which represents some form of contrition and remorse, but as stated previously, there is very little evidence of that here. From the only material I have from which I can assess contrition and remorse, namely, his responses to Dr Furst during the course of preparing the report, his prospects of rehabilitation are hard to gauge and must be guarded at best, because of his moderate risk of reoffending and diagnosis of paedophilic disorder. Hopefully they will be improved by treatment in gaol and by those other factors to which I have already referred, namely, his increased age by the time he is released to parole and the fact that almost certainly he will be subject to stringent conditions preventing him from having contact with children and, therefore, a reduced likelihood of his being involved in a series of relationships with women who have, or are young enough to have, access to prepubescent daughters.
     

48. So this is a series of common factors, namely factors that are common for all of the offences or all of the sentences here. I then turn to the relevant facts for each group of offences, dealing first with the offences against AJ.
     

Facts Relevant to Offences against AJ

51. For counts 2 and 4 and the relevant Form 1 offences, I accept that AJ was a young child who was in kindergarten in the Hunter region and went to kindergarten with the offender’s brother. This was in February 1987. She would often go to the offender’s house to play. The offender himself was 15 in the second half of 1987 and lived with his family on a large property which had an orchard and a large backyard opening onto the bush. There was also a firing and archery range on the property. On one of these occasions when the victim AJ went back to the offender's house, sometime between October and December 1987, the offender took her for a walk out to the bush to a spot to see what he described as magic, and told her that she needed to take off her clothes in order to see magic or fairies. She refused to take off her dress, but he took it off her forcefully and her dress tore. He also removed her underpants. She became distressed and he put her on his shoulders and gave her a piggyback ride. She was scared and struggled. The offender then laid her down underneath a tree and took off his pants. He kneeled near her head, with his genitals near her head and rubbed her genital region with his hands and mouth. That is the first Form 1 offence of indecent assault.
     

52. He then tried to insert his penis into her mouth whilst pinning down her arms with his legs. The victim would not open her mouth. This is count 2, the charge of attempted sexual intercourse. He then placed his penis into her hand and put his hand over hers to force her to masturbate him. That is the second Form 1 offence of indecent assault.
     

53. The complainant was feeling scared at this point. The offender then moved to lie on top of her and tried to push his penis into her vagina, which did penetrate her to some extent. This lasted for some time and caused the victim to feel pain. He then told her to put her clothes back on and they walked back to the house. On the way back he threatened that he would shoot her cat and kill it if she said anything about what had happened, after asking her if she had a pet. He took her to a shed and showed her a box of bullets, so she believed that this threat was real. She did not make any complaint at the time and in fact was later scolded by her mother when she arrived home because of her torn dress. She became preoccupied with the health of her pet cat at this time and it was not until that cat died that she disclosed this event to anyone.
     

54. She was sent to boarding school at some stage after this incident, to an extent because she started to develop poor behaviour and complained to a dormitory supervisor when she was 13 about this offence, but no action was taken. She also complained to her mother about these offences when she was 16, but again there was no action taken. She finally reported the matter to police on 3 December 2015 and action was finally taken to charge the offender.
     

55. These offences are clearly all serious. This was no act of childish sexual experimentation or discovery. The offender was 15, the victim was 6, thus a significant age disparity. She was scared and said so and suffered some pain during at least the actual offence of sexual intercourse. While the facts do not make it clear, I infer from the circumstances that the fact that she was in pain would have been known to the offender. She refused to participate, but he forced her, using some physical force to remove her clothing and to pin her to the ground. There was penile/vaginal penetration, at least to some extent, although on the facts not fully, and the threats to kill her cat if she disclosed to anyone were cruel and manipulative.
     

56. He may have only been a juvenile himself at the time, but he was significantly older than her. He was in a position of trust, because she was there being looked after to an extent by his family. She was entitled in any event to trust him as an older person and probably, he can be regarded as having been in a position of authority, at the time being older and entrusted to take her for a walk. These are all issues which inform an assessment of the objective criminality of the offences involving AJ.
     

57. She has prepared a Victim Impact Statement, which I have read and taken into account. I accept that she has been significantly affected throughout her life as a result of this offence, even up to the present. She had some behavioural difficulties as a child, and as I have said, was sent to boarding school, where she first made a complaint about this sexual assault but was either not believed or was ignored. Her sense of powerlessness and victimisation no doubt has been increased by the failure of adults and authorities around her to act upon her complaint until relatively recently. In fact, it would appear that AJ’s complaint to police in 2015, specifically to the now officer in charge, Detective Symington, was the event that led to the reinvestigation of all the other complaints, ultimately leading to the offender’s being charged with all of these offences.
     

58. On my finding, Sequence 2, the attempt offence, is for all of those reasons below the mid-range in terms of objective seriousness. Sequence 4, in my view, is at about the mid-range in terms of objective seriousness, perhaps slightly above. The Crown argues that it is well above the mid-range but I do not accept that to be the case. Whilst it is odious to have to make distinctions of this type, nonetheless the agreed facts indicated that the penile/vaginal penetration was not complete and there is no evidence that there was ever full penetration, nor ejaculation, and in any event this did not occur for a significantly lengthy period of time. It was, however, penile/vaginal penetration of a 6 year old girl by a 15 year old boy and, therefore, it is very serious, but not, in my view, well above the mid-range for offences of sexual intercourse with a child under 10. As I have said, it is about the middle of the range, perhaps a little above.
     

59. The sentence for this offence must also take into account the two Form 1 offences of indecent assault. They must be taken into account in a meaningful way, and they do increase the criminality somewhat, because as part of this sexual intercourse offence he also rubbed her vaginal area with his mouth and hand and made her masturbate him. The maximum penalty for this offence is 20 years.
     

60. The offender was a juvenile himself at the time and whilst I must sentence him in accordance with current practices, it must still be the current practice involving an offence committed by a juvenile, albeit sentenced at the present time in accordance with the current patterns for offences of this type. The fact that he was a juvenile to an extent reduces his moral culpability, but in circumstances of this offence that should not operate to reduce the sentence to any great extent. As I said earlier, this was not an episode of youthful experimentation, the age difference was significant and the offender would have well known and understood that what he was doing was wrong, as is clear enough by his attempts to silence the victim.
     

61. The appropriate sentence for count 2, as an attempt offence is hard to determine when sentencing in accordance with the current patterns. There would appear to be no current pattern immediately available, particularly when attempting to look to the statistics published by the Judicial Commission of New South Wales for offences of this type and the range of penalties for s 66B offences before the sentencing reforms commenced is very wide, ranging between some 18 months and 16 years. Doing the best I can to apply current sentencing patterns and views it seems to me the starting point for this offence in the circumstances is 4 years with a discount of 10% giving rise to a term of imprisonment of 3 years and 6 months.
     

62. Count 4, also involves difficulties attempting to determine current patterns. However, the starting point, it seems to me, taking into account the Form 1 offences, is about 6 years and after taking into account the 10% discount would give rise to a term of 5 years and 6 months.
     

63. As will become clear, I will be ultimately imposing an aggregate sentence to cover all of the 14 offences before me and thus it will be necessary to determine the overall criminality of all offences. It ought to be noted, however, that if these two offences involving AJ were the only ones to be imposed it is likely that each of these sentences would be concurrent with the other. Whilst they are two separate forms of a sexual assault, they do represent one criminal episode and it seems to me that concurrency would have been the appropriate outcome. Fortunately, I do not need to make that determination because of the fact I will be imposing one aggregate sentence to deal with all 14 offences.
     

Facts relevant to the offences against TR

64. At the time of offending, TR was a young girl aged between 9 and 12, having been born in September 1992. She had a younger sister CR who was 18 months younger. They lived with their mother at the time, who was separated from their father. CR’s mother met the offender in mid-2000 and a relationship developed between them. In March 2001 he moved into their house in the Lake Macquarie region. The offender was 28 at the time and TR was 8. On one occasion after her 9^th birthday, TR was playing in the backyard of the home and went to find the offender to ask him to play with her. He was on a computer in the garage at the time. She sat on the lounge a short distance away from him and after he finished using the computer she went and sat at the computer and started to play a video game. She turned around and saw that the offender had exposed his penis and was masturbating whilst watching her. She asked what he was doing and he answered that he was doing nothing and threatened her that if she told anyone he would make her life a living hell. He pulled his pants up and the victim left and went to the tree house at the back of the yard. This is the first of the Form 1 offences, an act of committing an act of indecency towards a child under 10.
     

65. She did not tell anyone what had happened as she was scared as a result of the threat made to her. TR’s mother married the offender in February 2002. In the middle of that year when TR was 9, the offender came into her bedroom in the morning around 9:00am or 10:00am. She was wearing long winter pyjamas. He lay on the bed and started tickling her all over. He grabbed both of her nipples and pinched and twisted them with his fingers which caused her severe pain. She pushed him away, but he continued for about a minute. This is the second of the Form 1 offences of indecent assault.
     

66. He then placed a finger down her pyjama pants and inserted a finger into her vagina and moved in and out for a short time, approximately 30 seconds. She told him to stop and he removed his hand. The victim then heard her mother moving about in the house and the offender left the room. The complainant felt ashamed about what had happened and scared and did not disclose this to anyone. This is count 7, the first substantive offence involving TR.
     

67. Later that year, in about November, the complainant was at home alone with the offender, who was play-fighting with her in the lounge room. He got her into a position where she was on her back on the floor and he was kneeling beside her. He slid his hands down the front of her shorts and underwear and placed his finger inside her vagina, which caused her agonising pain, and she yelled and screamed at him and tried to run away. He did not remove his finger and was laughing at her. He then removed his finger from her vagina and she left the room, going to her bedroom until her mother returned home. She did not disclose this because she was scared of what her mother would think of her. This is the third Form 1 offence in relation to TR.
     

64. In January 2003, when the complainant was 10, she and her sister CR were playing in the backyard of the house with a hose. Their mother was not home. The complainant was wearing a two-piece bikini. She went inside and was walking towards the kitchen and the offender was also inside. He grabbed her arm and moved her towards him and placed his hand inside her bikini pants and put his finger inside her vagina, moving it in and out for about a minute. He was holding her arm so she could not break free. She was screaming and yelling at him to stop. He was smirking and laughing whilst he had his finger inside her vagina. After removing his finger from her vagina she pushed him away and went to her bedroom. Her sister saw her crying and asked what was wrong, but she did not disclose, because she felt scared and ashamed after this incident. This is count 9, the second substantive offence involving TR.
     

65. In March 2003 the complainant and her family moved to a different address in the Lake Macquarie area. On one occasion, not long after they moved, the offender was setting up his computer in the study. He told the complainant to come in to look at something. He asked her to sit on his lap and then pulled her onto his lap so her back was against his chest. She sat there for about a minute and was feeling scared. He then placed one of his fingers inside her vagina which caused her pain. She yelled out to him repeatedly to stop. She tried to break free and was crying. He removed his hand and started laughing. The complainant ran out of the room. Again, she felt embarrassed and ashamed of what had happened. This is count 10, the third substantive offence involving TR.
     

66. Later that year in September the family moved to another suburb in the Lake Macquarie region. Not long after that move the complainant was playing with her sister on the veranda. She then went upstairs to her bedroom and started setting up dolls in her doll’s house. She was about 10 or 11 at the time and the offender was 31. Across from her bedroom the offender was sitting in the attic and was on his computer. He came into her bedroom and asked what she was doing and she said she was playing with her dolls. He then sat next to her on the floor and started tickling her for about five minutes. She was scared and fearful of what would happen next. He tickled her until she was lying on her back on the floor and he was kneeling next to her. He put his hand down the inside of her shorts and underwear and placed his finger inside her vagina, which caused her severe pain. She yelled at him to stop at least three or four times, but he refused and continued to digitally penetrate her whilst laughing at her. She heard her sister walking up the stairs and the offender then removed his finger from her vagina and walked away quickly back to the attic. This digital penetration lasted for about a minute. It is count 11, the fourth substantive offence involving TR.
     

67. All of the Form 1 offences involving TR are attached to this last offence and are to be taken into account when sentencing for it. Three of them, to which I have already referred, occurred beforehand. The last of the Form 1 offences involving TR occurred in the winter of 2004 when she was 11. The offender was on the computer in the lounge room and TR was watching television. No one else was home. The offender asked her to come over and look at something on the computer and she walked over and saw that he was watching a pornographic movie of naked women engaging in sex acts together. She told him that she did not want to see this, but he grabbed her arm and told her to watch it. She tried to look away and he laughed and let her go. She walked away and sat on the lounge and continued to watch television. This is this is the first, and last, of the Form 1 offences involving TR, an offence of aggravated indecent assault of a person under 16.
     

68. The offender’s marriage to TR’s mother ended in mid-2005 and the offender left the house. TR eventually disclosed these sexual assaults to her mother in 2010 and made a statement to police on 25 September 2010. It would appear that no charges were ever laid against the offender. The allegations were put to him by police in November 2011, but he denied them and declined to be interviewed and was not charged nor was any action taken against him.
     

69. I will now outline the facts in relation to CR, because they are to an extent related to the offences involving TR, if only because they are sisters.
     

Facts Relevant to the Offences Against CR

74. The relevant facts for the offence involving CR is that she is TR’s younger sister and was living in the house with her mother and TR and the offender after he moved in with them in March 2001. On an occasion between February 2002 and September 2003, when CR was either 7, 8 or 9, she was asleep in her bedroom in the early hours of the morning. It was still dark, but she woke up to find that her bedside lamp was on and the offender was licking her vagina. She felt very uncomfortable and pretended to be asleep, but was scared. She then fell asleep and when she next woke the offender had left. This is count 13, the offence of sexual intercourse with a person under 10.
     

75. CR told a friend about this in October 2007 when she was a teenager during the course of an online chat. Her friend asked her why she had not told anyone and she said that she was young and scared and that she was still scared. Her mother found that online chat log and took her to the police and on 3 December 2007 CR participated in an interview with police, and as I understand the facts, made the same complaint to them as is the subject matter of count 13. Despite this he was not charged. There is no explanation for why no charges were laid against him following this allegation. Even more difficult is it to understand why there was no action taken against him following TR’s statement to police in 2010, given that there would have already been, no doubt, this allegation made by CR by way of a formal police interview, all of which should have been obvious by a simple interrogation of the COPS system at the time.
     

76. Both TR and CR have read Victim Impact Statements to the Court. I accept that TR has suffered very seriously as a result of the offences committed against her. I accept from her Victim Impact Statement that she has suffered from a serious eating disorder, that she has attempted suicide and that she has resorted to other forms of self-harm which have left physical scars in addition to the mental scars which she continues to bear. She has particularly suffered because she did not disclose the sexual abuse for some time, believing that the offender would hurt her or her sister if she did and has developed a sense of guilt for not coming forward earlier. The abuse and its effect on her have had a very serious impact on her, including on her schooling and subsequent attempts to engage in higher education. The impact on her of this abuse has been very serious. It is not argued by the Crown that I would regard this as amounting to a circumstance of aggravation and I accept that that is not the case, but it is serious and has been ongoing for her and continues to have a seriously adverse impact on her life.
     

77. CR also prepared and read out a Victim Impact Statement. Perhaps because the offence against her was a one off and of somewhat lower objective seriousness, but for whatever reason, the impact upon her has been somewhat less devastating. In particular she does not agree to be defined as a victim, because she views that as empowering the offender. However, she too has been significantly adversely impacted by the sexual abuse. She has been in therapy since she was a teenager, being diagnosed and treated for a range of psychological and psychiatric disorders, which are well known to the Court as often associated with child sexual abuse. She feels that this one action has marked her for life, and whilst she has otherwise succeeded in her life and is relatively strong, she still suffers from the sexual assault and perhaps the impact on her can best be described in her own terms as they appear in the Victim Impact Statement in which she said the offender “…should take no relief in the fact that I am not completely ruined, that somehow I have prevailed in spite of it all”.
     

78. These offences involving TR and CR are also very serious offences, for all of the same reasons which I have already expressed, and especially so those involving TR. In both cases they were committed by the offender from a position of trust as their stepfather. They were committed in their own home and in many cases involving TR, and in the case involving CR, in their own bedrooms. For TR there was actual digital vaginal penetration which inflicted pain, which must have been known to the offender. He did not stop when that pain was exhibited and in fact laughed at TR, which no doubt increased her sense of powerlessness. The offences against TR demonstrate a level of callousness at the least, and one of the Form 1 offences, which was committed just before count 7, in which the offender twisted her nipples, indicates a degree of cruelty. He threatened TR that he would make her life a living hell and that threat, together with the sense of shame, had the impact of preventing her from disclosing the sexual abuse to anyone for a long time. For TR too he exposed her to pornography, but as this is a Form 1 offence to be taken into account when sentencing for count 11, which will give rise to a slightly higher sentence than might otherwise be the case, it would not be appropriate to also take that into account as a factor increasing the objective seriousness of his overall offending against TR.
     

79. The overall objective seriousness for each of the offences involving TR is different. For count 7, I accept the Crown’s submission that it falls below the mid-range for offences of this type. Taking into account the 10% discount available I have concluded that the appropriate sentence is 5 years’ imprisonment.
     

80. For count 9 the objective seriousness is increased. The victim’s mother was away from home, thus increasing the abuse of trust and the victim’s sense of powerlessness. He also used physical violence, grabbing her arm while she screamed at him to stop, but continued the digital penetration in the context of that degree of force and laughed at her. It is digital penetration which lasted for about a minute. Whilst the length of time is not determinative, nonetheless it was a relatively short period and whilst digital penetration is still penetration and is serious, it does not carry some of the risks of penile/vaginal penetration, and that is another factor to take into account when determining the objective seriousness. I find that the objective seriousness for this offence is about the middle of the range for offences being capable of being charged under this section, albeit the appropriate sentence for this offence after the deduction of a 10% discount, in my view, is 6 years’ imprisonment.
     

81. For count 10 the objective circumstances are much the same as they are for count 9, except by this stage the offending is continuing, and the sense of powerlessness felt by the victim must have become greater and almost overwhelming. There was no escape and it was relentless. It is about the mid‑range in terms of objective seriousness, but at the top of the range. The appropriate sentence, taking all of this into account, in my view, is 7 years, and it is necessary for me to indicate a non-parole period, because this is a standard non-parole period offence. I indicate a standard non-parole period of 5 years and 3 months. The standard non-parole period does not strictly apply because this is a plea of guilty, but it is a factor that I must take into account when imposing the relevant sentence here and for all of the other offences where there is a standard non-parole period.
     

Special Circumstances

82. I will now deal with the issue of special circumstances, because it is apparent that I have imposed a standard non-parole period at 75% of the overall term for count 10. There is one matter arguably present here which might give rise to a finding of special circumstances, namely, that this is the first time that the offender has been in custody. One factor that I ought to have mentioned in looking at the subjective circumstances of the offender is that he comes to court with no prior criminal convictions, but he cannot in any way be regarded as a person of good character given the lengthy time over which these offences were committed. He is, however, a person who had not been in prison before he went into custody on 31 August 2017 and that is a factor which can be taken into account in making a finding of special circumstances.
     

83. In my view, in this case, however, that should not alter the statutory ratio between the overall sentence and the non-parole period. That will be particularly the case in due course, because there will be an aggregate sentence imposed of a significant number of years and so, therefore, the period on parole is appropriate and the non-parole period, on my finding, will be the minimum needed to reflect the criminality and the circumstances of the offender. Because there is standard non-parole period for this offence and for no other reason, however, it is necessary to fix a non-parole period which I have indicated for count 10 should be 5 years and 3 months.
     

84. Count 11, it seems to me, is of similar objective seriousness as counts 9 and 10 for the same reason. Whilst the Crown places it as considerably above the mid-range of offences of this type I do not accept that characterisation is made out. I do note that the picture of him, acting like the sexual predator that he was, is brought into stark focus, because he did so when TR was in her bedroom playing with a doll’s house, but in reality this picture, albeit chilling, is really no different than for counts 9 and 10 where she was in her own house, in her bedroom, where there was a considerable age difference, where he was taking advantage of the fact that her mother was not home and where there was a considerable abuse of trust as her stepfather and where, for those instances where her mother was not at home, he was also in a position of authority looking after her, where she also demonstrated pain and distress, but he persisted, as had occurred in the earlier offences, and laughed at her pain. The fact that the picture of her playing with her dolls in a doll’s house puts in stark relief the seriousness of the offending does not in reality, on my finding, significantly increase the objective seriousness.
     

85. This offence, however, count 11, represented the third in a series of very similar offences involving TR, thus a course of conduct, but on each occasion very similar. In terms of assessing the objective seriousness of this offending, this offence is not, therefore, significantly different to counts 9 and 2, except it represents increasing offending and I thus find it also at about the middle of the range in terms of objective seriousness, but towards the top of that range.
     

86. The sentence for this offence, count 11, however, must be increased to take into account the four Form 1 offences in a meaningful way. Each of them is serious in its own right, including the infliction of pain in connection with indecent assault, when he twisted her nipples before the sexual assault in count 7. Another of these Form 1 offences is particularly serious given that it is a separate act of aggravated sexual assault, occurring in almost exactly the same way as for the other substantive offences, that is the third Form 1 offence, and there is little, if anything, to distinguish that Form 1 offence from any of counts 9, 10 and 11. Taking these Form 1 offences into account in a meaningful way must necessarily increase the appropriate sentence for count 11.
     

87. The starting point in these circumstances for count 11 is thus 9 years, which I will reduce by 10% and impose a sentence of 8 years, which is not precisely mathematical and is a sentence a little less than after the deduction of 10%, but I do so for the ease of recording as much as anything and also in circumstances where there will be an overall aggregate sentence. Again, there must be a non-parole period expressed, because it is a standard non-parole period offence. An indicative non-parole period is 6 years.
     

88. Factually the offence against CR is not as serious and whilst it does amount to an episode of sexual intercourse it is not of the same degree of seriousness as digital vaginal penetration. All of the other factors, however, in relation to an assessment of the seriousness of these offences apply, and most of the other considerations apply as for TR, including the disparity in ages, the fact that he was in a position of trust as her stepfather, and the fact that it occurred in her own home and in her bedroom. It is a serious offence, but not of the degree of objective seriousness for offences involving vaginal penetration. It is below the mid-range in terms of objective seriousness and after taking into account the appropriate discount I have determined a sentence of 5 years as appropriate.

Facts Relevant to the Offences Against DJ

89. The offender met DJ’s mother in November 2006. She was 6 at the time and between 7 and 8 when all of the offences against her were committed. The offender and DJ’s mother commenced a relationship and he moved in with her in April or May 2006 when DJ was 6. They bought a house together in the Newcastle region in 2007. DJ’s mother started studying at a local TAFE in July 2007 and was at TAFE every Monday and Wednesday evening. When she was at TAFE for two terms in the latter half of 2007 the offender stayed at home with DJ, when the offending against her occurred. As I have said, DJ was 7 or 8 and the offender was 35.
     

90. During the first week of her mother’s TAFE course, on one evening, the offender entered DJ’s room and told her they were going to play a grownup game and that she should not tell her mother, because he would go to gaol, that he and her mother would break up and that her mother would not love her anymore. He pulled down her pants and underwear and touched her genital region. He then put his fingers into her vagina, and told her not to tell anyone, because otherwise he would go to gaol. He then rubbed his penis along her genital region between her labia, thus amounting to penetration.
     

91. These two episodes of sexual contact are the facts for counts 15 and 16, two counts of sexual intercourse with a person under 10 and the first Form 1 offence of aggravated indecent assault.
     

92. The second occasion involving DJ also occurred when her mother was at TAFE. Again, the offender entered her bedroom and placed his fingers into DJ’s vagina and then put his penis into her vagina. The victim cannot recall whether there was full penile/vaginal penetration, but there was penetration to an extent, and she felt that it was tight and that it hurt.
     

93. These facts are the relevant facts for count 18, the act of penile/vaginal penetration and the second Form 1 offence, also an offence of sexual intercourse with a person under 10 involving digital vaginal penetration.
     

94. There was also a further set of offences which occurred on another night when DJ’s mother was at TAFE and the offender came into the bedroom and took off her pants. He touched her genital region with his finger and then licked her vagina. These two offences are count 20, the offence of sexual intercourse with a person under 10, and the third Form 1 offence of aggravated indecent assault of a person under 10.
     

95. At around the same time there was another occasion when the offender and complainant were at home together during the day and her mother was not home. DJ was on the lounge watching a movie and the offender sat beside her and started touching her. He pulled his pants down and placed his penis into her mouth. She was not able to keep his penis in her mouth and did not know what he was doing. She was trying to do so, because he told her to do it. That is count 21, another offence of sexual intercourse with a child under 10.
     

89. There was another occasion when DJ’s mother and grandmother were at TAFE one evening and the offender came into DJ’s bedroom, touched her genital area and then placed his fingers into her vagina. Her mother came home and the offender could see her car headlights through DJ’s window. He stopped quickly, rolled off her bed and crawled along the floor with his clothes in his hands until he left the room. That is the fourth Form 1 offence, in fact a separate offence of sexual intercourse with a person under 10 involving an act of digital penetration.
     

90. These are the specific counts involving the complainant DJ and of themselves mean that it cannot be argued or suggested that they were isolated events, but in addition the facts indicate that the offender behaved in this way with DJ very regularly, in fact, on most Monday and Wednesday evenings when her mother was at TAFE. It always involved his coming into her bedroom, touching her genital region and inserting his fingers into her vagina. The complainant suffered pain as a result, but according to the facts this happened so regularly that she can no longer remember each separate incident, apart from those which are the subject matter of the specific charges. She told her mother that she was sore and was experiencing stinging and pain when going to the toilet but did not disclose the sexual assaults.
     

91. The relationship between DJ’s mother and the offender ended in December 2007. The victim disclosed the sexual assault when she was in year six and was involved in a child safety awareness class at school. She made a complaint to police in an interview on 31 August 2010, but police discontinued their investigation into the matter in September 2010 at the request of her mother. It was around this time that TR made her complaint to police, who ultimately took no action despite the seriousness of her allegations, and in the light of the fact that a similar allegation had been made by DJ by way of a formal interview only a month earlier, albeit that her mother did not wish the matter to proceed.
     

92. DJ also prepared and read out a Victim Impact Statement. She too has suffered serious psychological impacts as a result of the sexual abuse. She has had difficulties with sleeping and suffers flashbacks of the events. She has issues in trusting others and has very poor memories of her childhood, because of what the offender did to her. As I have said, I have read and taken the content of her Victim Impact Statement into account. I accept that she continues to suffer from the effects of this sexual abuse.
     

93. In determining the appropriate sentences for counts 15 and 16 I do take into account the fact that they were largely the same event. For count 15 there was digital penetration by more than one finger, and for count 16 there was penetration of the labia, but not of the vagina. In reality, it seems to me appropriate to regard these two offences, albeit that they are two different forms of sexual intercourse as the one course of conduct. Each of them for that reason, in my view, is around the mid-range in terms of objective seriousness.
     

94. Sequence 1 is related but is a Form 1 offence which attaches to count 18. There is a standard non-parole period applicable for both of the offences, counts 15 and 16, which does not strictly apply because of the plea of guilty but that must be taken into account. After taking into account the 10% discount, the appropriate sentence for counts 15 and 16, in my view, is an overall term of imprisonment of 8 years with a 6-year standard non-parole period for each.
     

95. Count 18 is also a very serious offence and perhaps slightly more so, because this involved penile/vaginal penetration, albeit perhaps not fully, but nonetheless penile/vaginal penetration and enough to cause the victim pain. Immediately beforehand the offender had digitally penetrated her and that is one of the Form 1 offences attaching to count 18. It does elevate the criminality slightly, because there are two forms of penetration.
     

96. All of the Form 1 offences should be taken into account in a meaningful way when setting the appropriate sentence for sequence 18. The sentence here I have concluded, after taking into account the discount for a plea of guilty, should be 9 years with a non-parole period of 6 years and 9 months.
     

97. Counts 20 and 21 are equally serious offences involving digital/vaginal penetration. All of the same considerations informing the objective criminality are present as for the other offences. Taking all of that into account I have determined that, after the discount for a plea of guilty, the appropriate sentence for each of them is 8 years with a 6 year non-parole period.
     

98. Returning to counts 20 and 21, I previously said that each of them was a count of digital penetration but that is not the case. As referred to in a recitation of the facts, count 20 involved the offender’s coming into the bedroom and licking the complainant’s vagina, thus a factual circumstance of cunnilingus and count 21 involved his placing his penis into her mouth, thus a charge of fellatio.
     

99. The objective seriousness is high, for all of the same reasons as applied to the other charges, and my reference to them being digital penetration was a mistake on my part, but nonetheless the sentences earlier stated of 8 years with a 6-year non-parole period for, each are the appropriate sentences.
     

Facts Relevant to the Offences Against JW

107. I then turn to the facts concerning the victim JW. Her mother met the offender in 2008 and they commenced a relationship. JW was born in 1999 and was therefore 9 at the time. The offender and JW’s mother had a son together in 2009. The offender was living with JW and her mother in 2009 when her mother was pregnant. On one occasion JW and the offender were alone in the lounge room playing a game, during which the complainant was blindfolded, and the offender had to place something into her hand for her to guess what it was. The facts indicate that she smelled something that she described as a funny smell, and the offender then placed her hand on his penis. She realised that it was his penis and pulled her hand away, telling him that he was not playing the game properly. He grabbed her hand and responded in an angry tone that she should keep touching his penis and to tell him what it was. He put her hand back on his penis. She started crying and yelled at him to stop. She removed her blindfold and he looked at her and said that she was not meant to look and that she had not told him what it was. He then grabbed her head and started pulling it towards his penis, but at the point his brother walked in through the back door of the premises and he stopped and quickly pulled his pants up. He left the lounge room with his brother and JW was left sitting on the lounge crying.
      

108. This is count 23, a substantive offence of an aggravated indecent assault of a child under 16. All of the same factors are present in relation to an assessment of the criminality of this offence, including a disparity of ages; his being in the role of stepfather; her being under his authority at the time; the fact that he persisted when she tried to stop the offending and that this offence only came to an end when his brother walked into the room. I accept that this is slightly below the mid-range in terms of objective seriousness and there is also a plea of guilty and as such the standard non-parole period of 8 years does not strictly apply. After applying a discount of 10% I have concluded that the appropriate sentence for this offence is one of 3 years with a non-parole period of 2 years and 3 months.
      

109. After this offence the family moved to a house in Cardiff Heights owned by the offender. On an occasion in 2009 or 2010 the offender picked up the complainant from school and they were downstairs playing Monopoly. He grabbed her, lifted her up and placed her on top of a bed that was close to the kitchen. He pulled off her clothes and touched her on the vaginal area with his finger. He rubbed her genital regions through the outside of her underwear and then on the inside of her underwear. She told him to stop, but he continued to touch her in this way for about ten minutes.
      

110. The touching on the outside of her underwear is the Form 1 offence of aggravated indecent assault, and the touching inside of her underwear is count 25, the substantive offence. As I have said, she was about 9 or 10 at the time and he was about 37. He was very drunk on this occasion and was holding a can of mixed spirit. She told him that she would tell her mother, but he told her that her mother would not believe her. In fact, she did tell her mother about this not long after in April 2010 and her mother did not believe her.
      

111. Whilst there is a Form 1 here which theoretically is a separate incident of sexual touching, it is in reality part of the same episode, and quite frankly this sentencing exercise could have been considerably simplified if this and several other Form 1 offences had been discontinued and the facts simply taken into account as part of the overall factual matrix. The criminality for count 25 is that the offender touched JW’s genital region on the inside of her underwear immediately after touching her on the outside, again, in circumstances of his being her stepfather, in her own home with a considerable disparity in ages.
      

112. The last offence involving JW occurred when she was 10 or 11 towards the end of 2010. It is the second Form 1 offence of indecent assault. The complainant’s mother was out shopping and the complainant was at home, because she had homework to do. She was lying down on the lounge. The offender stood up over her whilst holding a bottle of bourbon. He rubbed her on the outside of her clothing in her genital region. She was screaming at him to stop, but he did not, and this continued for about 15 minutes.
      

113. As I have said, this is the second Form 1 offence to take into account when sentencing for count 25. It slightly increases the appropriate sentence for count 25 in a way that the first Form 1 offence does not, because the first Form 1 offence was, in my view, simply part of the overall factual matrix. The second Form 1 offence is a separate act of indecent assault and should be taken into account to some extent in a meaningful way. The appropriate sentence for count 25 in the overall circumstances should be 4 years with a 3-year non-parole period.
      

114. There was an occasion in August 2010 when the mother of DJ went to see the offender, who was at that stage living with JW and her mother. When they were waiting outside JW arrived home with her mother. DJ’s mother told JW’s mother of the allegations that had been made by DJ against the offender and in response JW told her mother that this was what was happening to her. Despite that, her mother did not believe her.
      

115. In 2010 the relationship between JW’s mother and the offender ended and they separated. However, he continued to have contact, because they had a son together. In 2012 JW went to live with her cousin and grandmother and disclosed the sexual abuse to them in September 2012. She ultimately disclosed to police in an interview done on 24 September 2012. On that same day her natural father indicated that he did not want the matter further investigated, but he wanted the offender spoken to. Apparently a police officer left messages for the offender detailing the allegations. The offender then left a message for the officer denying the allegations and declining to be interviewed. It would appear that this was not taken any further.
      

116. So, by September 2011 four of the complainants had made complaints to family members and significantly three of them, at least, had all made formal complaints and had been interviewed by police; CR on 3 December 2007, DJ on 31 August 2010, TR on 25 October 2010. After this interview police went to the offender’s home where he was living with JW and her mother. They were both home and the offender hid when police arrived. JW’s mother lied and told police that he had gone to Queensland and that she had not seen him for six months. Eventually police spoke to him about TR’s allegations by phone in November 2010, but as I have said earlier, he denied them and declined to be interviewed.
      

117. It’s beggars belief that there were no formal charges laid by that stage in relation to the allegations made by TR and CR at the very least. It is hard to understand that the police authorities then involved in the Hunter Region allowed all of these allegations to go without formal action being taken, even if the parents of two of the complainants did not want the matters to proceed. These complaints were not, in fact, made such a long time ago and were certainly made at a time when there was well and truly an understanding of the level of damage and trauma caused on individuals as a result of child sexual assault, let alone the fact that the community, on the face of it, was at risk with this particular offender at large.
      

118. Eventually, as I have said, AJ gave police a statement on 3 December 2015. It was at that stage that the current officer in charge, Detective Symington, took charge of these matters and she commenced an investigation, initially would appear in relation to AJ, but then located the details of the other complainants and interviews. It is hard to imagine that those details would have been particularly difficult to locate, given that by the time that each of these complaints had been made and interviews conducted it was well and truly the practice of the police to note them in COPS entries. Over a period of time she made contact with the various complainants, all of whom wanted the allegations to proceed, in some cases where on previous occasions their own parents, when they were still children, had asked for no further action, or in the case of JW, whose mother had actively prevented investigation. Each of these victims has been seriously let down, in some cases by the adults in their lives and in all cases, until this ultimate investigation commenced, by the police. As I said, it is hard to understand how this occurred and one would like to think that it could not happen again.
      

119. Detective Symington had difficulty locating the offender initially, but in August 2017 received information that he had applied for a working with children certificate, giving a current New South Wales address. She located him at that address on 31 August 2017 and arrested him for these sexual assaults. At the time of his arrest, he told police that, in his words, “I’ve already been through all of this and was cleared of it all”. This was not true because he had never previously been charged. He continued that assertion until being taken back to Singleton Police Station where he was formally charged with the offences involving all of the five complainants before me and was refused bail. He declined to be interviewed.
      

120. That then gives rise to the overall situation as indicated for the sentences for each of substantive offences:
     Count 2: 3 years and 6 months.
     Count 7: 6 years, having taken into account Form 1 offences.
     Count 7: 5 years.
     Count 9: 6 years.
     Count 10: 7 years with a non-parole period of 5 years and 3 months.
     Count 11: 8 years with a 6-year non-parole period with relevant Form 1 offences taken into account.
     Count 13: 5 years.
     Count 15: 8 years with a 6-year non-parole period.
     Count 16: 8 years with a 6-year non-parole period.
     Count 18: 9 years with a 6 year 9 months non-parole period, with relevant Form 1 offences taken into account.
     Count 20: 8 years with a 6 year non-parole period.
     Count 21: 8 years with a 6 year non-parole period.
     Count 23: 3 years, 6 months with a 2 year non‑parole period.
     Count 25: 4 years with a 3 year non-parole period, with relevant Form 1 offences taken into account.
      

121. It would never have been appropriate in the circumstances of this offending and these offences for all of these offences to be entirely accumulated. As I have already indicated, for some of them, in particular counts 2 and 4 and counts 15 and 16, it would be appropriate to regard them as being the same incident and sentences would be ordered to be served concurrently. However, if all of these sentences were accumulated on the other it would give rise to an overall term of imprisonment of over 80 years. That is obviously excessive, notwithstanding the seriousness of the offending. I have decided that it is appropriate to impose an aggregate sentence pursuant to s 53A for all of these offences to reflect the total criminality, including the lengthy period of time over which they were committed, the fact that there are five victims and the ongoing nature, not only of the offending overall, but in the cases of TR, DJ and JW, ongoing offending against them as individuals. I have determined in the circumstances that there should be an overall sentence of 24 years.
      

122. As previously expressed, whilst there is at least one matter which might be taken into account as a special circumstance, namely, that this is his first time in custody, it does not seem to me appropriate to alter the statutory ratio. There will, therefore, be an aggregate non-parole period of 18 years with parole thereafter of 6 years. That period of parole, in my view, is sufficient to deal with any issues requiring assistance to promote rehabilitation and the non-parole period, in my view, cannot be any lower to adequately reflect the criminality involved.
      

Formal Sentence Orders

123. For those reasons then I make the formal orders as follows:
      

1. For each of the substantive offences, the offender is convicted.
    

2. The offender is sentenced to an aggregate sentence, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 of 24 years, commencing on 31 August 2017 and expiring on 30 August 2041, comprising a non-parole period of 18 years commencing 31 August 2017 and expiring 30 August 2035, with parole thereafter of 6 years commencing 31 August 2035 and expiring 30 August 2041.
    

3. The indicative sentences are as previously expressed and where the appropriate Form 1 offences have been taken into account.
    

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Amendments

15 November 2022 - Name of offender anonymised.

Decision last updated: 15 November 2022