R v PN

Case •

[2023] NSWDC 170

•

19 May 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v PN [2023] NSWDC 170
Hearing dates: 28 April 2023
Decision date: 19 May 2023
Jurisdiction:Criminal
Before: Coleman SC DCJ
Decision:

(1) For the offence of possess child abuse material, and having regard to the matter on the s 16BA schedule, the offender is sentenced to a term of imprisonment of 3 years, commencing on 2 September 2021.

(2) For the State offences, the offender is sentenced to an aggregate term of imprisonment of 37 years, with a non-parole period of 25 years, commencing on 2 September 2022.

(3) The first date the offender will be eligible for release to parole is 1 September 2047.

(4) The sentence expires on 1 September 2059.

Catchwords:

SENTENCING - Multiple child sexual offences - Sexual intercourse with a child under 10 years of age – Possession of child abuse material – Objective seriousness – Prospects of rehabilitation

Legislation Cited:

Crimes Act 1900 (NSW), ss 66A, 66DA, 66EB, 91G

Crimes Act 1914 (Cth), ss 3, 16A, 16AAB, 16BA, 19AB

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 25D, 53A, 54B

Criminal Code Act 1995 (Cth), ss 474.22, 474.22A

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518

Bravo v R [2015] NSWCCA 302

DG v R [2017] NSWCCA 139

Hraichie v R [2022] NSWCCA 155

Ibbotson (A Pseudonym) v R [2020] NSWCCA 92

Johnson v The Queen [2004] HCA 15

R v Gavel [2014] NSWCCA 56

R v Hutchinson [2018] NSWCCA 152

R v Lamella [2014] NSWCCA 122

R v MAK [2006] NSWCCA 381

R v MJB [2014] NSWCCA 195

R v Taylor [2022] NSWCCA 256

RH McL v The Queen (2000) 203 CLR 452

Sheu v R [2018] NSWCCA 86

Category:Sentence
Parties: Director of Public Prosecutions (Crown)
PN (Offender)
Representation:

Counsel:
Ms J Smith (Crown)
Mr S Bouveng (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid (Offender)
File Number(s): 2021/00251576
Publication restriction:

Suppression order in regard to the identity of the offender, anonymised in these reasons as PN.

Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant or which is likely to lead to the identification of the complainant.

JUDGMENT

  1. The offender, PN, is to be sentenced today for fourteen offences under the Crimes Act 1900 (NSW) (‘Crimes Act’) and one Commonwealth offence under the Criminal Code Act 1995 (Cth) to which he has pleaded guilty, which are contained in the table below:

Count

Offence

Maximum penalty

Standard non-parole period

1

Groom child under 14 years for unlawful sexual activity

s 66EB(3), Crimes Act 1900 (NSW)

12 years imprisonment

Yes – 5 years

2

Use child under 14 years to make child abuse material

s 91G(1)(a), Crimes Act 1900 (NSW)

14 years imprisonment

Yes – 6 years

3

Intentionally sexually touch child under 10 years

s 66DA(a), Crimes Act 1900 (NSW)

16 years imprisonment

Yes – 8 years

4

Sexual intercourse with child under the age of 10 years

s 66A(1), Crimes Act 1900 (NSW)

Life imprisonment

Yes – 15 years

5

Sexual intercourse with child under the age of 10 years

s 66A(1), Crimes Act 1900 (NSW)

Life imprisonment

Yes – 15 years

6

Sexual intercourse with child under the age of 10 years

s 66A(1), Crimes Act 1900 (NSW)

Life imprisonment

Yes – 15 years

7

Sexual intercourse with child under the age of 10 years

s 66A(1), Crimes Act 1900 (NSW)

Life imprisonment

Yes – 15 years

8

Sexual intercourse with child under the age of 10 years

s 66A(1), Crimes Act 1900 (NSW)

Life imprisonment

Yes – 15 years

9

Sexual intercourse with child under the age of 10 years

s 66A(1), Crimes Act 1900 (NSW)

Life imprisonment

Yes – 15 years

10

Sexual intercourse with child under the age of 10 years

s 66A(1), Crimes Act 1900 (NSW)

Life imprisonment

Yes – 15 years

11

Sexual intercourse with child under the age of 10 years

s 66A(1), Crimes Act 1900 (NSW)

Life imprisonment

Yes – 15 years

12

Sexual intercourse with child under the age of 10 years

s 66A(1), Crimes Act 1900 (NSW)

Life imprisonment

Yes – 15 years

13

Sexual intercourse with child under the age of 10 years

s 66A(1), Crimes Act 1900 (NSW)

Life imprisonment

Yes – 15 years

14

Intentionally sexually touch child under 10 years

s 66DA(a), Crimes Act 1900 (NSW)

16 years imprisonment

Yes – 8 years

15

Possess child abuse material accessed using a carriage service – prior conviction of child abuse offence

s 474.22A(1), Criminal Code Act 1995 (Cth)

Maximum: 15 years imprisonment

Minimum: 4 years imprisonment

No

  1. The offender also asks that the following offences be taken into account on a Form 1:

  1. In relation to Count 3: 5 counts of intentionally sexually touch a child under 10 years, an offence under s 66DA(a) of the Crimes Act.

  2. In relation to Count 14: 8 counts of intentionally sexually touch a child under 10 years.

  1. Pursuant to a s 16BA certificate, the offender also seeks that one count of use carriage service to transmit child abuse material to self (prior conviction of child abuse material), an offence under s 474.22(1) of the Criminal Code Act 1995 (Cth), be taken into account in relation to the Count 15 offence. The maximum penalty for this offence is 15 years imprisonment and the minimum penalty is 4 years imprisonment.

  2. The offender pleaded guilty to the offences at the earliest opportunity and is thus entitled to a 25% discount on any sentence imposed to reflect the utilitarian value of the plea. This is pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’). I will allow the same discount for the Commonwealth offence, having regard to the matters in s 16A(2)(g) of the Crimes Act 1914 (Cth) relevantly the fact and timing of the plea and the benefit to the community and the victim in not having the matter go to trial.

Facts

  1. There are agreed facts for the sentence. I will refer to some of those facts, but not all.

Background

  1. On 10 February 2009, the offender was convicted at Grafton District Court for an offence of ‘Aggravated Indecent Assault – Victim under the age of 16 years’, which is a State registrable child sex offence. This is also a prior child sexual abuse offence as defined in ss 3 and 16AAB of the Crimes Act 1914 (Cth). This is relevant as it means that there is a mandatory minimum sentence for the Commonwealth offence for which he is to be sentenced. I will deal with that issue later in these remarks.

  2. The offender is the victim’s paternal uncle. Around mid-2018, the offender moved in to live with the victim’s family. This was because the offender had moved to Inverell for work. The household consisted of the victim, her mother, her father and three older brothers. They lived in a four-bedroom weatherboard house. The offender stayed with the victim’s family for 13 to 14 months before moving to a residence elsewhere in Inverell.

  3. When the victim was 5 years old, she was given a mobile phone to use for herself. The offender frequently offered to assist the victim’s mother by looking after the children, including the victim, before and after school and buying takeaway food for the family.

  4. The type of offending committed by the offender is as follows:

  1. The offender groomed the victim by sending her indecent texts and photos.

  2. The offender sexually touched the victim.

  3. The offender engaged in different types of sexual intercourse with the victim.

  4. The offender photographed the victim in sexual poses, engaging in sexual acts and engaging in sexual acts with himself.

  5. The offender also made some videos of this activity.

  6. The offender possessed a large amount of child abuse material depicting the victim.

Grooming (Count 1)

  1. When the victim was 6 years old, she received a text message from the offender stating that he wanted to have sex with her and attaching a photo of her sleeping in her blanket fort. She replied, “stop it”.

  2. On 5 or 6 occasions when the offender was living with the victim’s family, the victim recalled the offender sending her photos of his penis. The offender told the victim not to tell anyone about them.

  3. When interviewed by police, the offender told the police the victim wanted to be sexually touched and “shown everything”. He said he obliged her by taking and showing sexual photos to the victim. He said the photos were taken in her bedroom and the bathroom, including times when she went into the shower. He admitted taking close to 100 photos. He asserted the victim wanted to see her vagina and so he had opened her vagina up on occasion to photograph it.

  4. On 7 September 2020, the offender sent text messages to the victim, who was 9 years old, asking if she loved him and asking to sniff her panties and kiss her vagina. The victim did not respond.

  5. On 19 October 2020, the offender and the victim exchanged further text messages which I will paraphrase. The offender asked to see the victim’s genitals. She forcefully told him no. He said that he loved her.

Production of Child Abuse Material (Count 2)

  1. From the period of 12 July 2019 to 15 March 2021, the offender used the victim to produce child abuse material. The offender did this by filming the victim in states of undress, in sexual poses, and filming himself carrying out sexual acts on the victim. Throughout this period, the victim was 8 or 9 years old. The sexual activity and the production of child abuse material often occurred around 6pm but sometimes also around 8am.

Sexual Offending

  1. The child abuse material revealed the offender engaging in sexual activity with the victim when she was aged 8 or 9.

Count 3 – Intentionally sexually touch child under 10 years

  1. On 13 July 2019, at around 2:03pm, the offender took a number of photographs depicting his fingers manipulating the victim’s vagina without penetration. The victim was 8 years old at the time.

  2. On five occasions between 15 July 2019 and 26 March 2020, when the victim was aged 8 years old and on dates when no other sexual activity occurred, the offender took photographs depicting his fingers manipulating or touching the victim’s vagina without penetration, pulling aside the victim’s underwear revealing her vagina and then placing his penis onto her vaginal area, or pulling down the victim’s underwear to expose her vagina. These acts give rise to the five Form 1 offences attached to Count 3.

Counts 4 & 5 – Sexual intercourse with child under 10 years

  1. On 2 September 2019, at around 5:49pm, the offender took a number of photographs depicting himself engaging in digital-vaginal penetration of the 8-year-old victim. At around 6:03pm on the same day, the offender then inserted his penis into the mouth of the victim. He continued to take photographs.

  2. At 6:06pm, the offender posed and then photographed the victim kissing the tip of his penis. In another photograph shortly after, the offender posed the victim so that she was holding his penis while sticking her tongue out.

Counts 6, 7 & 8 – Sexual intercourse with child under 10 years

  1. On 9 September 2019, at around 6:04pm, the offender took a number of photographs depicting himself manipulating the victim’s vagina using his fingers. At around 6:13pm, the offender then took a photo posing with his penis in front of the victim’s vagina, and then began penile-vaginal penetration of the victim. At around 6:17pm, the offender then performed cunnilingus on the victim. The offender continued taking photographs of his actions.

  2. At around 6:19pm, the offender took further photographs of himself touching the victim’s vagina using his fingers and placing his penis against the victim’s vagina. At around 6:29pm, the offender then began to digital-vaginally penetrate the victim. The offender continued taking photographs of his actions.

Counts 9 & 10 – Sexual intercourse with child under 10 years

  1. On 23 September 2019, at around 8:10am, the offender took a number of photographs of himself digitally-vaginally penetrating the victim.

  2. At around 8:23am, the offender inserted his penis into the mouth of the victim and filmed his conduct on a separate video file.

Counts 11, 12 & 13 – Sexual intercourse with a child under 10 years

  1. Later that same day, at 6:00pm, the offender took a number of photographs of himself digitally penetrating the victim’s vagina. At around 6:01pm, the offender took a number of photographs of himself digitally-anally penetrating the victim.

  2. At around 6:08pm, the offender took a number of photographs and filmed a short video of himself digitally-vaginally penetrating the victim. At around 6:28pm, the offender touched the victim’s vaginal area using his fingers. He continued to take photographs of his actions.

Count 14 – Intentionally sexually touch child under 10 years

  1. On 7 July 2020, at around 8:24pm, the offender took a number of photographs of himself touching the victim’s vagina and also of him moving the victim’s legs apart to expose her vagina. The victim was 9 years old at the time.

  2. On 8 separate occasions between 14 August 2020 and 10 October 2020, the accused engaged in further acts of intentional sexual touching on dates when no other sexual activity occurred. These acts involved touching the victim’s vagina using his fingers without penetration and pulling down the victim’s underwear to expose her vaginal area. This conduct gives rise to the eight Form 1 offences attached to Count 14.

Offence attached to Count 15 - Use carriage service to transmit child abuse material to self + prior

  1. On or about 31 August 2021, the offender transmitted a number of image files to his own Google account to be stored in the Google Photos architecture. Google performed an automated analysis of 91 files uploaded onto the account and detected 86 items containing potential child abuse material.

  2. Data stored on Google Photos can only be uploaded or accessed through the use of a carriage service.

  3. Google identified the IP address of the device which uploaded the child abuse material to be associated with the offender. Google then locked down the offender’s Google account and notified the relevant authorities.

Arrest and Police Interview

  1. On 2 September 2021, NSW Police attended upon the offender’s address in Inverell and placed him under arrest. NSW Police also seized electronic devices from the offender’s address including phones and a laptop.

  2. The offender was then conveyed to Inverell Police Station. The offender participated in an electronically recorded interview with police during which he made certain admissions as to his email address and ownership of certain electronic devices. He asserted that the victim wanted to be sexually touched and “shown everything” because she was “looking up porn sites herself at the time, not on my phone”. He obliged the victim, he said, by taking and showing sexual photos to the victim, and he knew the victim was 8 years old at the time. These photos were taken inside the victim’s home in the bedroom and the bathroom. There were close to 100 photos that had been taken.

  3. In relation to the photos in the shower, he claimed the victim wished to see her own vagina clearly in the mirror, so he took photos to oblige her. He asserted that the victim wished to know how a penis could enter a vagina, so took a photo of his own penis next to her vagina to show her. He denied that he made skin contact.

  4. He admitted that he had taken photos of the victim “over a couple of months”. This would happen sometimes when she went into the shower, and sometimes when he got home from work. He admitted that he had taken photos where he had “opened the vagina up to have a look” by parting the outer lips of the vagina.

  5. He admitted to having kissed the victim’s vagina once, and he recalled that the victim said it tickled. He claimed the victim asked him to perform certain sexual acts towards her.

  6. He admitted that whenever he ever had contact or touched or performed a sexual act upon the victim, he had taken a photo of it. He identified a photo shown to him as having been taken next to his brother’s lounge (i.e., in the victim’s home).

  7. The offender also made certain denials. He denied ever acting on sexual fantasies relating to father-daughter themed pornography. He denied ever inserting any part of his body or any other object into the victim’s vagina.

  8. On 2 and 3 September 2021, NSW Police spoke to the victim in electronically recorded interviews. She told the police certain things in relation to the conduct toward her by the offender. I will not set them all out. They related to the initial grooming by the offender and to the touching of her genitals and progressing to the sexual conduct with the offender.

  9. She said on nights when she was at home and the offender was also at her home, the offender would walk into the bathroom where the victim was getting dressed after showering.

  10. She also said that the offender would send photos of his penis to her. This happened about 5 or 6 times, when the offender was living with a person called N. The victim had however since deleted those photos. The offender told the victim not to tell anyone about what he had done.

  11. On one occasion, while the offender was still living with N, the offender came over to the victim’s house to wake her up and get ready for school. While she was getting dressed, the offender walked into her room and closed the door, and then started taking off his clothes. When he started taking his pants off, the victim ran out of her room and went to school.

  12. A few days later, the offender again came over to get the victim ready for school. This time, the offender walked in whilst she was having a shower and touched the victim on her head using his hand, and then kissed her on the breasts.

  13. She told the police about the offender performing oral sex on her. The offender said to her, “Don’t tell anyone”.

  14. The victim also recalled the offender doing other sexual acts to her but did not specify when each of these acts occurred.

Count 15 – Possess child abuse material

  1. The offender’s Samsung Galaxy S10 phone, Samsung Galaxy S8 phone and Acer laptop were forensically examined, as well as the contents of a Microsoft OneDrive account associated with the offender’s login email.

  2. NSW Police identified 1397 individual files (at least 990 of them being unique) containing Child Abuse Material:

  1. 1087 images fell under the Interpol Baseline Category 1 classification, 806 of which were unique.

  2. 3 video files fell under the Interpol Baseline Category 1 classification, all of which were unique.

  3. 221 images fell under the Interpol Baseline Category 2 classification, 181 of which were unique.

  1. The 990 unique child abuse material images or videos were of the victim. NSW Police were able to determine from viewing furniture visible in the background of the images and video that the offences had occurred inside the victim’s own home. NSW Police used multiple images depicting an adult right index and right thumb pushing apart the lips of the victim’s vagina to identify the offender’s fingerprints from the finger and thumb shown in the images.

Objective Seriousness

  1. I am required to assess the objective seriousness of the offences. It is trite to say that offences of this type, being sexual offences against young children, are of their nature extremely serious. The maximum penalties for the offences range from 12 years up to life imprisonment. In R v Gavel [2014] NSWCCA 56, the Court of Criminal Appeal (Leeming JA, Johnson and Hall JJ) said:

[87] The maximum penalties and standard non-parole periods are important legislative guideposts for the purpose of sentence: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [27]. This is particularly so with respect to the three s.66A(2) offences, each of which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

[88] A further feature is relevant to the s.66A(2) offences. As a result of statutory amendments in 2009, the maximum penalty for this offence was increased from 25 years' imprisonment to life imprisonment.

[89] The fixing of a maximum penalty of life imprisonment for an offence under s.66A(2) was done "in recognition of the heinousness of committing such an aggravated offence against a child under the age of 10 years" (second reading speech of the Attorney General for the Crimes Amendment (Sexual Offences) Bill 2008, Hansard, Legislative Council, 26 November 2008). In the course of the second reading speech, the Attorney General stated that the sentence increase contained in s.66A(2) was recommended in the 2008 Report of the NSW Sentencing Council entitled "Penalties Relating to Sexual Assault Offences in New South Wales".

[90] It is well established that the increase by the legislature in the maximum penalty for conduct proscribed by s.66A(2) must be reflected in the sentences which trial courts impose: R v Jurisic (1998) 45 NSWLR 209 at 227; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [52]; Muldrock v The Queen at 133 [31]; Leslie at 144-145 [79].

[91] As Beech-Jones J observed with respect to s.66A(2) in GN v R at [86], "a maximum term of life imprisonment is the most emphatic statement of the seriousness of the offence that the legislature may make". McCallum J noted in PK v R at [4] that "aggravated sexual intercourse with a child under ten is among the most serious of criminal offences in this State".

  1. The circumstances of the offending described in the facts above show a callous and self-centred disregard for the child victim. The offender, aged 40 to 44 at the times of the offending, used and abused his niece for his own depraved sexual gratification. He did so after grooming her as I have described and then exploited her innocence and his access to her when living in her family home and after he moved out to satisfy himself.

  2. The offending started by the grooming of the child when she was between 6 and 10 years old. She was only 6 when he texted her saying he wanted to have sex with her. Despite her rejecting the advances as best she could, he continued with that conduct including by sending her photos of his penis.

  3. She was 8 to 10 years old when he used her to produce the child abuse material. She was 8 years old when he had multiple types of sexual intercourse with her. She was 8 and 9 when he sexually touched her.

  4. Count 2 is the use of the child to produce child abuse material. It involves both photos and videos when the child was aged 8 to 9. It includes the offender carrying out sexual acts on the victim including penile penetration, fellatio, cunnilingus and digital penetration of the victim’s vagina and anus. It occurred frequently when the victim returned home from school.

  5. Count 3 was sexual touching and manipulation of the victim’s vagina without penetration when she was 8 years old. There are 5 further matters to be taken into account on the Form 1 for this count.

  6. Counts 4 and 5 are acts of digital penetration of the victim’s vagina, followed by fellatio which occurred about 14 minutes later where the offender inserted his penis into the victim’s mouth. Photographs were being taken. The victim was 8 years old.

  7. Count 6 is penile/vaginal intercourse, count 7 is cunnilingus and count 8 is digital/vaginal penetration. The conduct occurred over a period of about 25 minutes. All of the conduct was photographed. Whilst there was a lack of coercion, I accept the Crown submission that this was because the offender had groomed the victim as I have described above.

  8. Count 9 is digital/vaginal penetration, which preceded count 10 being fellatio. It took place about two weeks after the conduct in counts 6-8 and occurred over a 13-to-15-minute period in the morning. The victim was 8 and the conduct was photographed. The fellatio was video recorded.

  9. On the same day as counts 9 and 10 in the evening, the offender photographed and video recorded himself engaging in the following conduct over a period of about 28 minutes. Count 11 is digital/vaginal penetration; count 12 is digital/anal penetration and count 13 is digital/vaginal penetration. The offender continued to touch the victim’s vagina after the count 13 conduct.

  10. Count 14 is sexual touching, where the offender touched the victim’s vagina (without penetration) with his fingers and moved her legs to expose her vagina when she was 9 years old. The conduct was photographed. There are a further 8 offences to be taken into account on the Form 1.

  11. Count 15 is the Commonwealth offence of possessing child abuse material. It involves 1397 images, at least 990 of them being unique (not duplicates), and of the victim. There were 3 video files. About 400 were duplicates.

  12. For the Count 15 offence, in reaching the conclusion that the offending was just below the mid-range, I have had regard to the list of factors in R v Hutchinson [2018] NSWCCA 152, referred to at [28] of the Crown submissions and pp. 11-13 of the offender’s written submissions. Save for one matter, I do not regard there to be a material difference in the analysis by the parties of the applicability of those factors. The one matter is that I accept the Crown submission that there is a s 21A(2) matter applicable (factor 14), being an aggravating feature that the offending occurred in the victim’s home where she was entitled to feel safe. There is one matter to be taken into account for this count under s 16BA of the Crimes Act 1914 (Cth).

  13. The nature of the offending has been adequately described above for the assessment of the objective seriousness of each offence to be gauged. The Crown provided a table setting out the counts in the indictment, the relevant section of the Crimes Acts (both NSW and Commonwealth), the maximum penalties, a summary of the conduct the subject of each count and the parties’ submissions on the objective seriousness of each count. I have included this table at the end of these remarks recording the Court’s finding of the objective seriousness of each of the counts. For the avoidance of doubt, where there was any difference in the submissions of the parties as to the objective seriousness of a count, I have accepted the Crown submissions (see [15]-[28] of the Crown written submissions).

Aggravating/Mitigating Factors

  1. For the State offences, the following statutory aggravating features apply:

  1. The offender abused a position of trust with his niece: s 21A(2)(k) of the CSPA. The abuse by men of children whom they have access to by reason of familial ties is particularly heinous: R v MJB [2014] NSWCCA 195 at [67] per Adamson J (as her Honour then was);

  2. The offending occurred in the victim’s home: s 21A(2)(eb).

  1. The offender pleaded guilty to the offences which is a mitigating feature: s 21A(3)(k).

Commonwealth matter

  1. I should observe that for the Commonwealth matter, s 16A of the Crimes Act 1914 (Cth) requires me to impose a sentence for that count that is of a severity appropriate in all the circumstances of the offence. I am required to take into account, in addition to any other matters, the matters in s 16A(2) that are relevant and known to the Court. These include, relevantly:

  1. the nature and circumstances of the offences (see the factual matters and description of objective seriousness above);

  2. other offences that are required to be taken into account;

  3. if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;

  4. the personal circumstances of any victim of the offence;

  5. the degree to which the person has shown contrition for the offence (I deal with this below);

  6. if the person has pleaded guilty to the charge in respect of the offence - that fact (I have dealt with this above);

  7. (j)   the deterrent effect that any sentence or order under consideration may have on the person (I deal with this below);

  8. (ja)   the deterrent effect that any sentence or order may have on other persons (I deal with this below);

  9. (k)   the need to ensure that persons are adequately punished for the offence (I deal with this below);

  10. (m)   the character, antecedence, age, means and physical or mental condition of the person (see subjective circumstances below);

  11. (n)   the prospects of rehabilitation of the person (I deal with this below);

  12. (p)   the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents.

Subjective Circumstances

  1. In terms of the subjective circumstances of the offender, I have been provided with a psychological report of 11 April 2023, prepared by Dr Katie Seidler. I will not detail all of the matters in the report but summarise the subjective matters relevant to my considerations.

  2. Dr Seidler firstly observed that although the offender was forthcoming in response to questioning, he was noticeably uncomfortable when discussing matters of a sexual nature. Dr Seidler suggests his account of the offending conduct was sanitised, minimised and distorted when discussing such matters, she presumed for the purpose of positive impression management. She further observed that he presented as a person who is not particularly reflective.

  3. The offender is currently 45 years old. He reported to Dr Seidler that he was the third of four children born from the union of his parents. He reported that his father worked on the railways and his mother engaged in domestic duties at home, and therefore money could be tight. However, he denied that his basic developmental needs weren’t met or that he was exposed to social disadvantage or neglect.

  4. He described his relationships with his mother and his father as generally loving, supportive and positive. He similarly described the relationship between his parents in broadly positive terms. He denied any significant discord or domestic violence in the household.

  5. The offender reported that his father passed away around 2006, after having been diagnosed with cancer 6 months previously, and that his mother and siblings have severed their relationships due to the offending conduct.

  6. The offender reported that he was subject to significant physical and verbal bullying in his schooling years, particularly in high school. He stated he became increasingly reactive and eventually would respond with violence, leading him to be suspended on one occasion for fighting.

  7. The offender attained his Higher School Certificate, stating that he performed poorly but this was a fair reflection of his efforts. At the age of 19, he reportedly moved out of the family home for work and has maintained consistent, gainful employment since (except for a brief period when he was in receipt of a carer’s pension). He has also undertaken a number of practical and employment-related courses through TAFE.

  8. The offender denied any problematic consumption of alcohol, or the consumption of any illicit substances generally, beyond experimenting with cannabis on a number of occasions as a young adult.

  9. The offender reported that he maintains a small number of close friendships with persons he has known for a long time but does not have any ongoing social routine with others. He provided a description of his daily life in the community as going to work, coming home and spending hours online playing games, and acknowledged that he felt both lonely and isolated. He denied, however, being involved in sex offender networks, online or in real life, which Dr Seidler considered unlikely.

  10. The offender described one significant intimate partner relationship, which began when he was in his early 20s and his partner was several years younger. He provided that the relationship lasted six years in total, with the pair being married for the last few years, and that he has one son from the union who is currently 20 years old. Following the relationship breakdown, the offender was awarded visitation rights by the Family Court but claimed that his ex-wife was obstructive and he eventually ceased pursuing contact.

  11. The offender has remained single since the breakdown of his marriage, which he attributed to negative beliefs about women and relationships, as well as the previous sexual offence conviction. He stated that it is ‘easier not to bother’ than to seek out a relationship but described being lonely.

  12. The offender provided that he has never experienced notable symptoms of psychopathology, nor engaged in psychological treatment for any reason.

  13. In terms of his sexual development, the offender reported that he became sexually aware during his early adolescence but that he had limited opportunity for age appropriate sexual and relationship experimentation during his teenage years due to the bullying he experienced and poor self-esteem. He eventually married. He has not had any other sexual partners, and apparently has not engaged in sexual contact with anyone apart from the victim of his offending.

  14. The offender described to Dr Seidler that his sexual interests are mainstream and his sex drive as being in the average range, without any experience of sexual pressure or compulsion or a tendency to hypersexuality. He denied any interest in deviant sexual practices, or the presence of any sexual fetishes.

  15. The offender stated that, on average, he would view pornography a few times a week through mainstream pornographic sites and was most excited by mainstream heterosexual normative content. When challenged on this, the offender admitted that he had been exposed to child sexual abuse material a year or two prior to his arrest by following links on mainstream pages. He conceded that he viewed material depicting themes of incest and suggested that about 20% of his use of pornography was related to the sexual abuse of children.

  16. The offender denied having any sexual fantasies involving underage children. When he was again challenged on this, the offender acknowledged that he has had fantasies involving teenage girls but denied having sexual thoughts of prepubescent children generally and the victim in particular, but Dr Seidler noted that this is highly unlikely and, in her opinion, probably implausible. The offender reported that he identified as heterosexual, being maximally attracted to post-pubescent females, with moderate to strong sexual attraction to females across all other ages, including those who are pre-pubescent.

  17. Dr Seidler noted that the offender demonstrated a confused understanding of consent and sexual boundaries, as well as some confused and concerning attitudes towards sexual contact with children, which she notes is common for untreated sex offenders.

  18. In regard to the offending conduct currently before the Court, Dr Seidler noted that the offender acknowledged his involvement, but his account of such offences was distorted, irresponsible and victim blaming, which Dr Seidler suggests is not uncommon for an untreated sex offender. When asked about the prior sexual offence conviction from 2007, the offender stated that he could not recall much in relation to this charge, but that the complainant was around 13 years of age and that he touched her sexually outside of her clothing on one occasion, and that that the offence was an accident. He provided that he did not engage in any sexual offence specific treatment following this offence and claimed he was never offered such treatment.

  19. Overall, Dr Seidler opined that the offender “has entrenched and deviant sexual interests in female children that he has maintained through abusive behaviour, inappropriate online communications, sexual fantasy and pornography use over at least 15 years.”

  20. Dr Seidler assessed the offender’s risk of recidivism using the Static-99R, in which the offender was assessed to have a sexual recidivism rate that is 1.39 times that of the average sexual offender.

  21. Dr Seidler considered that the offender’s dynamic risk factors relating to sexual abuse and suggested that he represents a moderate to high risk of reoffending. The following factors were identified as elevating the offender’s future risk of reoffending:

  1. The offender has a previous charge for sexual abuse of an underage female child.

  2. The offender abused the victim in this matter over a period of time, after grooming her and sexualising the relationship.

  3. There is evidence in these matters of an escalation in offending, as well as a diversification in the abusive behaviour.

  4. There was psychological coercion present in the offending.

  5. The offender presents with distorted attitudes in relation to children and sex.

  6. The offender minimised and sanitised his account of the offences.

  7. The offender endorsed both paedophilic and hebephiliac sexual interests in female children.

  8. The offender is a lonely and isolated individual, with few friendships and has not been involved in an intimate partner relationship for a significant time.

  9. The offender has poor self-esteem and distorted beliefs about others, which, in Dr Seidler’s opinion, may contribute to a greater identification with children.

  1. In terms of protective factors, Dr Seidler opined that the offender presents with very few protective factors to temper against risk. Such factors do include that he presents as inherently prosocial and that he seemingly possesses sound capacity for self-control. Dr Seidler therefore opines that:

[The offender] presents with notable risks pertaining to sexual abuse with few protective factors. Entrenched sexually deviant interests are considered to be the primary risk in the case, associated with which [the offender] presents with distorted attitudes, which supports his generally irresponsible and distorted account with respect to his offending behaviour…It is suggested that future risk for [the offender] will be most prominent in situations where he has access to a young and vulnerable female, who he can groom and sexualise. [The offender] is suggested to have the potential to offend in both contact and non-contact ways, in addition to being at risk for offending online and in “real life” with children he has a connection to.

  1. Dr Seidler recommended that the offender engage in a comprehensive programme of sexual offence specific intervention, in order to challenge distorted attitudes, develop skills for deviancy management, increase his insight into the antecedents of his offence, and develop greater accountability and responsibility for his offending.

  2. I should add there is nothing in the material before me on sentence which would have the effect of reducing the offender’s moral culpability for the offending.

  3. I have seen the offender’s record of prior offences. It includes the prior offence of aggravated indecent assault on a child and a larceny offence. The child sex offence has consequences for the Commonwealth count and signals a concerning escalation by these offences in the offender’s behaviour towards children, but otherwise I do not regard the offender’s record as being a material matter on sentence.

Remorse

  1. There is no expression of remorse by the offender. Whilst a guilty plea can be some evidence of remorse, he has not expressed independently any remorse for his depraved behaviour.

Prospects of Rehabilitation

  1. I regard the prospects of rehabilitation of the offender as poor. This will remain so until he accepts he needs treatment and assistance to deal with his sexual deviancy. His conduct was only detected because of the identification by Google of the child abuse material.

  2. Dr Seidler’s recommendation is that he engages in a comprehensive programme of sexual offence specific intervention. Until he undertakes that treatment, as I read Dr Seidler’s report, he is at a relatively high risk of re-offending.

Victim Impact Statement

  1. I have received a Victim Impact Statement from the victim. It speaks of the profound impact the offending has had on her. She is now reserved and hesitant about trying new experiences. Her confidence has been stripped from her. She avoids physical contact even with family. Unsurprisingly, the offending has dramatically affected almost every part of her life. It must have taken enormous courage to provide the statement to the Court and the bravery of the victim is commendable having regard to what she has been through.

Sentencing Principles

Purposes of Sentencing

  1. With respect to the State matters, I must have regard to the purposes of sentencing in s 3A of the CSPA.

  2. It is well known that child sex offences have a profound and deleterious effect on the victims for many years, if not the whole of their lives. Psychological damage may follow (see the discussion in Bravo v R [2015] NSWCCA 302 at [48] and the authorities there cited).

  3. The purposes of sentencing of specific and general deterrence, retribution and protection of the community are prominent in this case. There is a need for the offender, and others of his ilk, to know that crimes like these against children will be met with significant and lengthy terms of imprisonment. Such offending will be denounced, recognising the harm it does to its innocent victims.

  4. There is no issue that the s 5 threshold has been crossed and that no other sentence other than one of imprisonment is appropriate for each of the offences.

  5. For the Commonwealth matter I must, as I have observed, impose a sentence that is of a severity appropriate in all of the circumstances of the offence, taking into account the matters I have referred to in s 16A(2). As this is a child sex offence, I must, in addition to any other matters, have regard to the purposes of rehabilitation: s 16(2AAA). I must not pass a sentence of imprisonment unless, having considered all other available sentences, no other sentence is appropriate. Here, no other sentence other than one of imprisonment is appropriate.

Sentence Structure, Totality, Concurrency and Accumulation

  1. I cannot impose an aggregate sentence for the State and Commonwealth offences: Sheu v R [2018] NSWCCA 86 at [26]. There was discussion between counsel for the parties and the Court at the hearing as to the appropriate structure. I proposed a structure whereby I imposed a sentence for the Commonwealth offence first, followed by an aggregate sentence for the NSW offences. There was no demur from this course.

  2. I will not set a non-parole period for the Commonwealth offence, as the offender will still be serving imprisonment for the state offences (see s 19AB(3)(b), Crimes Act 1914 (Cth)).

  3. I do propose to impose an aggregate sentence for the state offences, pursuant to s 53A of the CSPA. I am therefore required to set out the indicative sentence for each offence. All of the state offences have standard non-parole periods and I am therefore required to state an indicative non-parole period for those offences: s 54B(4) of the CSPA.

  4. As the offender has pleaded guilty to each of the offences, the 25% discount to be applied to the sentence will be reflected in each of the indicative sentences, rather than in the aggregate sentence that I will impose: see DG v R [2017] NSWCCA 139 and Ibbotson (A Pseudonym) v R [2020] NSWCCA 92.

  5. I accept that in determining the overall sentences I impose on the offender, I must have regard to the principles of totality. This requires me to calculate a sentence in respect of each offence, consider the principles governing accumulation and concurrency, and review the aggregate sentence to consider whether or not it is just and appropriate.

  6. I must look at the totality of the criminal behaviour of the offender, ask myself what is the appropriate sentence for all of the offences, and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, RH McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.

  7. Reference can be made to Hraichie v R [2022] NSWCCA 155, in particular to the discussion by Beech-Jones CJ at CL at [69]-[73] and [96]-[98] where his Honour discussed the application of principles of accumulation and totality, albeit in a different context. His Honour was there considering the application of s 56 of the CSPA which mandates the commencement date of sentences being at the conclusion of other sentences in certain circumstances.

  8. His Honour’s comments on totality, however, are relevant. At [73], his Honour stated that the totality principle, including any necessity to avoid a crushing sentence, is not a basis to avoid the imposition of a sentence that is “just and appropriate”. Omitting references to authority, his Honour said:

That a sentence may be “crushing” in the sense of “induc[ing] a feeling of hopelessness and destroy[ing] any expectation of a useful life after release” is “but one of the matters that is taken into account in determining whether [a particular sentence] is beyond the range of sentences properly available…”

  1. All sentencing exercises are difficult. Sentences for offences such as these are particularly difficult, having regard to the heinous nature of the offending and the number of offences. The offender is now in his mid-forties. The sentence to be imposed here will be necessarily very lengthy because of the extremely serious nature of the offending and the number of counts to be dealt with. I am conscious of the impact of long sentences and the need to ensure that I do not impose a crushing sentence.

  2. I accept, of course, that I must have regard to the principles of totality as I have sought to summarise them. Nevertheless, the sentence imposed must reflect the serious and separate conduct involved in the offending. The offender will spend a significant part of the rest of his life in prison. That, however, is a consequence of the conduct he engaged in and the abuse of the victim he perpetrated.

  3. Counsel for the offender submitted that for counts 4 & 5; 6, 7 & 8; 9 & 10 and 11, 12 & 13, the Court would impose wholly concurrent sentences as the offending for each of those groups of counts “took place over a matter of minutes”. I do not accept these submissions. The conduct the subject of those counts did take place over a relatively short period of time for each group of offences, however, there was different conduct for each count. Digital penetration was followed by fellatio, or penile/vaginal penetration followed by cunnilingus then digital penetration, for example. Further, whilst the period of time may have been short, it would not have been for the victim. Each must have been a horrible experience for the child (see the discussion of SB v R [2022] NSWCCA 131 at [55] of the Crown written submissions).

  4. There will be a significant degree of concurrence for each of these groups of offences, but they will not be wholly concurrent. There must be some cumulation to reflect the different criminal acts constituted by each offence. For the avoidance of doubt, I accept the Crown submissions on this issue.

  5. There will also be a significant degree of concurrence for the Commonwealth sentence and the state matters.

  6. It is agreed that the sentence should commence on 2 September 2021 when the offender went into custody.

Standard Non-Parole Periods

  1. Ten of the counts for which the offender is being sentenced have a maximum penalty of life imprisonment with a standard non-parole period (‘SNPP’) of 15 years. It is important sentences imposed by the Court for such offences reflect this “grave element implicit in the offence itself”: Bravo v R, ibid at [48].

  2. I note that the maximum penalties and SNPPs are legislative guideposts for the sentences to be imposed. It is a matter to be taken into account by a court in determining the appropriate sentence: s 54B(1) of the CSPA.

  3. In this matter, there is little, if anything, by way of mitigating factors for the offender. He has entered early guilty pleas and will receive a 25% discount for the sentences imposed. There is no other matter, such as a strong subjective case, or anything else which reduced his moral culpability.

  4. Having considered and determined the objective gravity of each of the offences, and having regard to all of the factors that bear upon the instinctive synthesis of the sentencing process, I will take the SNPPs into account as part of that process in determining the appropriate sentence.

The Commonwealth Matter

  1. I should deal with some final matters regarding the Commonwealth count.

  2. Because the offender was convicted of the aggravated indecent assault on a child that I have referred to, which is a child sex offence, the relevant provisions of the Crimes Act 1914 (Cth) apply to mean that, for count 15, there is a mandatory minimum term of imprisonment (see s 16AAC). The application of any discount to the mandatory minimum term was the subject of written and oral submissions by the parties. Reference was made to R v Taylor [2022] NSWCCA 256, in particular the judgment of Simpson AJA at [76]. Ultimately, it was accepted that the Court could apply the 25% discount (and any other discount) to the mandatory minimum and this would be the “floor” of any sentence for the Commonwealth offence.

  3. Counsel for the offender submitted that an additional discount of between 2-5% should be added for the co-operation of the offender with the authorities by way of admissions in his ERISP. I do not accept this submission. The Crown case was strong. The offender in the ERISP also repeatedly engaged in victim blaming and minimised his conduct. I do not accept any discount in addition to that for his early guilty plea should be applied.

Form 1s and s 16BA Certificate

  1. With respect to the matters on a Form 1 for the state offences, I have had regard to the matters on each of the Forms 1 in setting the penalties for counts 3 and 14, noting this would impact on the sentence for those counts by way of considerations of specific deterrence for the primary offence and retribution for that offence. These two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offences. I am not, however, imposing a sentence on the offender for the Form 1 offences: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146, per Spigelman CJ.

  2. For count 15, I have had regard to the matters on the s 16BA schedule. The same principles apply as for the State offences: see R v Lamella [2014] NSWCCA 122 at [48] per Price J.

Special Circumstances

  1. Counsel for the offender submitted that the Court should make a finding of special circumstances to vary the statutory ratio between the head sentence and the non-parole period for the State offences. He submitted that there had been hardship due to the COVID-19 pandemic where the offender was locked in his cell for 100 days in 2021-2022, the fact this is the offender’s first time in custody and having regard to the principles of totality.

  2. I will make a modest adjustment to the statutory ratio to reflect these matters.

Sentence

  1. PN, for the offences for which you have pleaded guilty, you are convicted.

  2. For Count 15, being the possession of child abuse material, and having regard to the matter on the s 16BA schedule, I sentence you to a term of imprisonment of 3 years. The sentence will commence on 2 September 2021.

  3. For the state offences, I sentence you to a term of imprisonment as follows:

  1. Count 1: An indicative term of 4 years and 6 months (6 years before discount), with an indicative non-parole period of 3 years and 2 months;

  2. Count 2: An indicative term of 7 years and 6 months (10 years before discount) with an indicative non-parole period of 5 years and 3 months;

  3. Count 3 (and having regard to the matters on the Form 1): An indicative term of 6 years and 9 months (9 years before discount), with an indicative non-parole period of 4 years and 9 months;

  4. Count 4: An indicative term of 13 years and 6 months (18 years before discount), with an indicative non-parole period of 10 years;

  5. Count 5: An indicative term of 15 years (20 years before discount), with an indicative non-parole period of 11 years and 3 months;

  6. Count 6: An indicative term of 15 years (20 years before discount), with an indicative non-parole period of 11 years and 3 months;

  7. Count 7: An indicative term of 13 years and 6 months (18 years before discount), with an indicative non-parole period of 10 years;

  8. Count 8: An indicative term of 13 years and 6 months (18 years before discount), with an indicative non-parole period of 10 years;

  9. Count 9: An indicative term of 13 years and 6 months (18 years before discount), with an indicative non-parole period of 10 years;

  10. Count 10: An indicative term of 15 years (20 years before discount), with an indicative non-parole period of 11 years and 3 months;

  11. Count 11: An indicative term of 13 years and 6 months (18 years before discount), with an indicative non-parole period of 10 years;

  12. Count 12: An indicative term of 16 years and 6 months (22 years before discount), with an indicative non-parole period of 12 years and 4 months;

  13. Count 13: An indicative term of 13 years and 6 months (18 years before discount), with an indicative non-parole period of 10 years;

  14. Count 14 (and taking into account the matters on the Form 1): An indicative term of 4 years and 6 months (6 years before discount), with an indicative non-parole period of 3 years and 2 months.

  1. I impose an aggregate sentence of 37 years with a non-parole period of 25 years.

  2. The State sentence will commence on 2 September 2022 and will expire on 1 September 2059. The first date you will be eligible for release to parole will be 1 September 2047.

  3. With the Commonwealth sentence, this is an effective head sentence of 38 years commencing 2 September 2021 and expiring 1 September 2059. The effective non-parole period is 26 years.

  4. I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious offences” including many of the offences for which you have been sentenced.

  5. In summary, this means the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the court considers you would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.

  6. It is, therefore, in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

Annexure A - Objective Seriousness Table (204616, pdf)

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Decision last updated: 16 June 2023

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Most Recent Citation
PN v R [2024] NSWCCA 86
Cases Citing This Decision

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PN v R [2024] NSWCCA 86
Cases Cited

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Statutory Material Cited

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Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Bravo v R [2015] NSWCCA 302
DG v R [2017] NSWCCA 139