R v RDT (a pseudonym)

[2019] NSWDC 596

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v RDT (a pseudonym) [2019] NSWDC 596
Hearing dates:	30 August 2019
Date of orders:	20 September 2019
Decision date:	20 September 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	Sentenced to an aggregate sentence of 20 years imprisonment with an aggregate non-parole period of 15 years.
Catchwords:	CRIME — Child sex offences — Disseminate child abuse material CRIME — Child sex offences — Conspiracy to have sexual intercourse with child <10 — Procuring or grooming child for unlawful sexual activity — Sexual intercourse with child <10
Legislation Cited:	Crimes (Sentencing Procedure) Act
Cases Cited:	Muldrock v The Queen (2011) 244 CLR 120 R v Egan [2016] NSWCCA 285
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) RDT (Offender)
Representation:	Counsel: S Sloane (Crown) S Loomes (Offender)   Solicitors: C Hurford (Crown) M Stidwill (Offender)
File Number(s):	2015/00310471, 2016/00262074
Publication restriction:	Statutory non-publication order applies to the identity of victims.

SENTENCE

1. HIS HONOUR: The offender is to be sentenced in relation to a number of offences which I will set out shortly. The facts concerning the offending are very distressing and I consider it appropriate to make mention of that fact because it will be necessary for me to read onto the record the facts. The members of the public in the courtroom should understand that they will hear a recitation of them in my remarks.

2. The offender is to be sentenced having pleaded guilty to the following offences: That between 18 August 2015 and 12 October 2015 at Schofields he conspired with JF to have sexual intercourse with RF, a child then under the age of ten years, namely, six to eight months of age. That is an offence under the common law, so effectively the maximum penalty is at large. However, the maximum penalty for the substantive offence under s 66A(1) of the Crimes Act at the relevant time was life imprisonment. The substantive offence had an applicable standard non-parole period of 15 years’ imprisonment. I have used the maximum penalty and the standard non-parole period as a guide for the imposition of sentence on that count.

3. The second 2015 offence, as I will call them, is that between 12 October 2015 and 22 October 2015 at Schofields he intentionally attempted to procure a child under 14 years, namely eight months of age, for unlawful sexual activity. That is an offence under s 66EB(2) of the Crimes Act and has a maximum penalty of 15 years’ imprisonment with an applicable standard non-parole period of six years.

4. The third of the 2015 offences is that between 24 August 2015 and 30 September 2015 he disseminated child abuse material. That is an offence under s 91H(2) of the Crimes Act and has a maximum penalty of ten years’ imprisonment, and there is no applicable standard non-parole period.

5. The fourth and final 2015 offence is that between the same dates and at the same place as the last offence he disseminated child abuse material. That offence has the same maximum penalty as the previous similar offence.

6. The offender is also to be sentenced for the following offences, of which he was convicted after trial by a jury earlier this year. That between 30 January 2006 and 31 December 2008 he had sexual intercourse with B, a child then under the age of ten years, namely 3,4 or 5 years. That is an offence under s 66A of the Crimes Act and at the relevant time had a maximum penalty of 25 years’ imprisonment and there was an applicable standard non-parole period of 15 years. That was count 1 on the indictment.

7. The second offence is that between 30 January 2006 and 31 December 2008 he committed an act of indecency with B, a child then under the age of ten years, namely 3, 4 or 5 years. That is an offence under s 61O(2) of the Crimes Act and has a maximum penalty of seven years’ imprisonment and there is no applicable standard non-parole period. That offence was count 2 on the indictment.

8. The third offence is that between 30 January and 31 December 2008 he had sexual intercourse with B, a child then under the age of ten years, namely five years. That offence was count 3 on the indictment. It has the same maximum penalty and standard non-parole period as the offence contained in count 1.

9. The fourth and final offence is that between 30 January and 31 December 2008 the offender had sexual intercourse with BM, a child then under the age of ten years, namely five years. That offence was count 4 on the indictment. That offence has the same maximum penalty and standard non-parole period as the offences contained in counts 1 and 3 on the indictment.

Facts of the Offending

10. I turn then to the facts of the offending. The facts in relation to the 2015 offences are agreed and the following is taken from those facts.

11. In June 2015 the Child Exploitation Internet Unit received information in relation to the sexual exploitation of children, and subsequently an investigation into the offender commenced.

12. In terms of the conspiracy to have sexual intercourse with a child offence, the following are the facts:

13. From August 2015 the offender and co-offender engaged in a number of online communications which were intercepted by police. These communications were discussions of an agreement to engage in sexual intercourse with the co‑offender’s granddaughter R, who was aged around eight months old and is referred to by the code name “Wendy” in the communications. In particular, an exchange of messages took place between the two on the Kik messaging service on 11 September and a number of text conversations occurred between the two offenders on 18 and 25 September and 8 October 2015.

14. In a Kik message exchange between the offender and co‑offender on 11 September, details were planned in relation to gaining access to the young child. In particular the offender said, “Am trying hard to think where to go Sunday”, to which the co-offender replied, “Me too but I will find somewhere”. They then engaged in a conversation about what each of them wanted to do and see the other do to the child, including the offender stating that he wanted to “Put her dummy up her arse”, and that he was going to put “her bottle” and his “tongue” in her vagina, and that he was also going to put his tongue in “her anus”.

15. In response to the offender’s statement, the co‑offender says he will “Hold her lips open for you to put it in” and that the offender can “lick her arse” while the co-offender “puts his cock in her mouth”. They then returned to a conversation about locations for these events to take place, to which the co‑offender says, “I will look tomorrow I want to see this happen”. The offender then asked the co-offender to “Let me know if you find somewhere tomorrow” and then asked the co-offender to disclose the location to him on Kik as it is safer discussing where they will take her on that medium.

16. On 18 September 2015 the co-offender and the offender exchanged text messages where the offender told the co-offender, “Am so horny for baby cunt”. The offender then went on to ask the co-offender if he can get access to Wendy, to which the co-offender responded, “Bit hard at the moment but will work on it. Mother is being a bitch”.

17. On 25 September 2015 the offender and co-offender exchanged a number of text messages where the offender says, “Sorry for the late text. I’ve found a row of abandoned houses if you’re still interested some time”. The co‑offender responded saying, “It’s not easy to get her. Is it close and safe”. The offender responded with a specific location and the co-offender states,

“Cool you can have a good dirty play with her and get her naked. You love to fuck a young one”.

18. With the offender replying, “Yes please, I want her to taste my cum”.

19. On 8 October 2015 numerous text messages were exchanged between the offender and the co-offender. During this exchange the offender asked the co-offender if he had time to check out the abandoned houses that he had mentioned previously. The co-offender replied, “Hi mate, yes, I did. At what age would you try and fuck a little girl?” He continued to say, “Just like to know. I bet a one year old be tight. I will try it with any age”. The offender responded, “Yes okay would like to you?” and then asked the co-offender to let him know when he gets Wendy. The co-offender then replies, “I do want to make her a dirty little slut for us”. The co-offender then proceeded to send a photograph of his naked nine‑month‑old granddaughter lying in a bath, to which the offender replied, “Oh nice, I want her bad [JF]”. The co‑offender then told the offender, “She is all yours”.

20. During the course of the exchange the co-offender informed the offender that he can “Just do her in his car”, to which the offender said “Please try and get her just for a little while” and the co-offender replied “I will try hard for you”.

21. On Monday 12 October 2015 the co-offender was arrested, his mobile phone seized. The co-offender admitted to police his role in the conspiracy and also told police that the offender had sent him some videos that he believed would be considered child abuse material.

22. Following receipt of the photograph of the child in the bath on 8 October 2015 the offender then sent the co-offender an image of a naked pre-pubescent female child with her legs spread open. That is the image which supports one of the disseminate child material offences. The image concerned has been categorised in category 1 on the Child Exploitation Tracking Scheme, the system known as CETS.

23. On 28 September 2015 investigators from the police unit I mentioned earlier, utilising the assumed online identity of a 40 year old male, made email contact with the offender, based on an online advertisement by the offender “Panties wanted M for M (Sydney)”. The advertisement read as follows:

“Wondering if there is anyone genuine able to supply panties from AFM”

24. No doubt the reference to family; and

“If you are open-minded and know what I mean contact me. Willing to reward for right situation genuine only”.

25. The police investigators answered the advertisement via an airmail link and the offender responded. In his response the offender stated:

“$30 per dirty pair. What sizes would you have? How open-minded are you? Am seeking small”.

26. On 30 September 2015 the offender engaged in online chat communication with the assumed online identity via a social networking application. The online communication with the offender continued, disclosing his sexual preferences to the assumed online identity. The offender stated “Ha ha I like them tiny her age” referring to the four year old female, “They still mess their panties sometimes”. When asked further about his attraction the offender stated:

“I find them cute when in nappies so maybe that’s related. I’ve smelt a pair of young panties before that a girl had leaked into it smelt amazing”.

27. The offender then began to discuss child abuse material with the assumed online identity and indicated that he had access to such material. He then disseminated a digital image to the police posing as the online identity through the same application. The image disseminated was a female toddler who was naked with her legs in the air. The child’s genitals were clearly visible. The image was again classified in category 1 of the CETS scale.

28. The offender then disseminated a second image to the assumed online identity via the application, this image was of another female toddler wearing only underwear, with her arms apart leaning up against a cot. The child had stickers over her body. The image was again classified by police as being within category 1 in the CETS scale.

29. In terms of intentionally attempt to procure a child under 14 for unlawful sexual activity the following are the agreed facts:

30. On 20 October 2015 the offender, using the online identity Lester_mole, had a chat communication with the account of the male known to him as JF, which was then being operated by the police via a social networking application. During this online communication the offender arranged to meet at 11am on 22 October 2015 at abandoned houses in Schofields for the purposes of sexually assaulting the nine month old female Wendy. During this chat the offender asked the male known to him as JF, to bring a spare nappy so he can keep the used one, and stated “I want to put a dummy in both holes, then to mouth also so she can taste herself”. To confirm the arranged meeting location the offender sent a picture message of the specific abandoned house to F’s account.

31. On 21 October 2015 the offender engaged in an online chat communication using the online identity Luvto via a social networking application with the account of the male known to him as JF. During this online communication the offender asked “Can you fill her up with milk in the morning so she pees a lot. I wanna drink her pee”. He continued to say “Give her an extra bottle, I won’t mind if she pukes that turns me on also. I might even lick her puke”. Later in the online communication the offender said “I want her so bad, [JF], I leak pre-cum thinking of her”.

32. At about 10.20am on 22 October 2015 the offender drove past an address in Schofields and then continued on for about a kilometre, where he pulled into the BP Service Station. The offender sent a text message to the account of the male known to him as JF, stating “What time you there? Before is OK let me know when on way”. At 10.46am the police, assuming F’s identity, sent a text message stating “I’m here” and the offender replied “Ok in five”. Again the offender drove past the agreed premises in Schofields. At the time there were two unmarked cars in the vicinity containing police officers, he did not stop at the agreed premises.

33. At about 10.:50am the offender engaged in a chat communication utilising the name Luvto via a social networking application with the male known to him as F; clearly the police at this time. During the communication the offender indicated “We will have to find somewhere else”. Police communicating as F indicated they should meet at Nurragingy Reserve in Doonside. Shortly thereafter police observed the offender at a petrol station in the vicinity of Nurragingy Reserve.

34. The offender was arrested at about 12.20pm on 22 October 2015. There were searches of his mobile telephones. When questioned in relation to a particular phone he told police that the Samsung was the device he was using to contact the male known to him as JF, and advised police that he had removed the SIM card and discarded on Quakers Hill Parkway.

35. He participated in an electronically recorded interview, where he stated that he initially attended the vicinity of the Schofields address with the full intent of sexually assaulting Wendy, the granddaughter of the male known to him as JF. The offender stated that after waiting for the male known to him as F to attend the location he became uncomfortable with the location at the risk of being caught and decided not to go inside the house. He told police that he used a suspiciously parked vehicle and the existence of workman as an excuse in an attempt to cancel the meeting. The offender, in his interview, went on to tell police that he has had a sexual interest in children, in particular infants and young children and had this sexual interest for at least 20 years. During the interview the offender also made admissions to sending F child abuse material and to having the conversation with the assumed online identity, being the police posing as F.

36. I turn then to the facts in relation the offences of which the offender was convicted at trial. These being sentence proceedings after trial I am required to find the facts upon which the offender is to be sentenced consistent with the verdicts returned by the jury. To the extent that I find facts adverse to the offender I must be able to find those facts proved beyond reasonable doubt. The jury’s verdicts of guilty on four counts on the indictment reflects the fact that the jury accepted in the main the evidence of the victim beyond reasonable doubt and rejected the evidence of denial of the offences given by the offender at his trial.

37. The offender was born in 1965, so was between 40 and 43 years of age at the time of the offences. The victim is the offender’s natural daughter, who was born on 30 January 2003. During the period when the offences occurred the offender resided in premises with his wife, the mother of the victim, together with their other children. The victim was the youngest of the three children.

38. The facts in relation to count 1, the first of the sexual intercourse counts are as follows:

39. On an occasion when the victim was between three and five years of age she woke-up during the night and went to her parent’s bedroom. She asked the offender if she could sleep in the bed and he said yes. The victim got into the bed with him and her mother. At a time when the mother was in the shower the victim awoke to the offender rubbing her on the vagina and described his fingers being “in the middle of both sides” although “not up inside” the vagina. The jury clearly accepted that what the victim was describing was the offending penetrating the outer lips of the victim’s vagina, which was the act of sexual intercourse the Crown relied upon for count 1 on the indictment.

40. The facts in relation to count 2, the commit act of indecency count. On another occasion the victim, between the ages of three and five, went to her parent’s bedroom during the night and got into bed with them. In the morning her mother went into the shower in the ensuite near the parent’s bedroom. While the mother was showering the offender removed the victim’s underwear and pulled her on top of him while in bed. The offender put his hand over the victim and masturbated until he ejaculated. He then obtained a tissue and wiped the ejaculate off his penis.

41. The following are the facts in relation to count 3 on the indictment, the second sexual intercourse count. On an occasion when the victim was five years of age, she was home during the day from school with the offender, when she was unwell. The offender asked the victim if she wanted to have a bath. The offender took the victim to his room and undressed her, lay her on the bed and rubbed Vaseline on her vagina, then bathed her. The jury, by its verdict, accepted the victim’s evidence, that during this incident, the offender rubbed Vaseline on the inner and outer lips of the victim’s vagina and inside her vagina, and there had been penetration. After doing so, the offender put the victim in the bath.

42. The following are the facts in relation to count 4 on the indictment, another sexual intercourse offence. There was a second occasion when the victim was five years of age, when she was home during the day with the offender, having had a day off school because she was sick. The offender took her to his room and undressed her, and lay her on the bed. He obtained Vaseline and rubbed it onto the inner and outer lips of her vagina and then bathed her. After this occurred, the offender bathed the victim. The jury, by its verdict, accepted that the victim’s evidence constituted penetration of her genitalia by the offender’s finger or fingers.

43. During the trial, the victim gave evidence of other occasions when the offender had engaged in other episodes of masturbation with the victim, similar to the conduct relied upon for count 2. That evidence was admitted in the trial as contextual evidence. While the offender is not to be punished for those other acts, it demonstrates that the conduct relied upon for count 2 on the indictment, was not an isolated incident.

44. The victim first complained to her mother about the offences and the offender’s conduct in 2016, which was after the offender had been arrested and remanded in custody in relation to the 2015 offences. In accordance with an earlier ruling of the Court of Criminal Appeal, evidence of the offender’s tendency to have a sexual interest in young children, was placed before the jury during the trial. That material included the record of interview referred to in the facts concerning the 2015 offences.

27. During the sentence proceedings, a Victim Impact Statement was bravely read to the Court by the victim, which shows the devastating effect her father’s offending has had upon her.

Assessment of Objective Seriousness

46. I turn then to my assessment of the objective seriousness of the offences. In relation to what I will call the 2015 offences, my assessment of the level of objective seriousness is as follows. The conspiracy to have sexual intercourse with a child under ten offence, is a most serious offence. There was a real child who was the proposed object of the conspiracy, the co‑offender’s granddaughter, who was only around eight months of age. That child was vulnerable and defenceless and would have been unable to complain if the clear object of the conspiracy had been achieved. The offender was 50 years of age as at the time of the offence and there was a very great age difference between the offender and the proposed vulnerable victim.

47. The offender expressed his desire in the communications with the co‑offender, to engage in various sexual acts with the proposed victim. Those sexual acts included cunnilingus, fellatio and penile vaginal intercourse. There was considerable planning undertaken by the offender, in seeking out a location where he could have sexual activity with the child and reduce the risk of detection. I note the conspiracy was engaged in between 18 August and 12 October 2015, when the co‑offender was arrested, for almost two months. I have no doubt, given the offender’s plea of guilty and his admissions contained in his record of interview with the police, that he has had a sexual interest in very young children for up to 20 years prior to the conduct of that record of interview, and that the offender fully intended to engage in the sexual activity he described in his communications with F, if he had gained access to the child. In my opinion, given the object of the conspiracy, and the matters I have referred to, the objective seriousness of the offence is in the upper end of the range of objective seriousness.

48. In relation to the attempt to procure offence, this offence is closely linked to the conspiracy offence, as the object of the offence was the same young child who was the object of the conspiracy offence. The offender again discussed his communications with the F identity which the police had assumed, the type of sexual activity he wished to engage in with the young child. Again, the offender took steps to locate a location where he could engage in the sexual activity with the child, with a reduced risk of detection. The attempt to procure offence was conducted over a period of about ten days. I consider this offence is towards the upper end of the range of objective seriousness for such offence, given the age of the proposed child, the fact that I am satisfied that if he had been able to obtain access to the child, he would have engaged in the sexual activity he discussed with the assumed online entity. I have not lost sight in that assessment of the fact that in relation to this offence, unlike in the conspiracy offence, that there was no real child at risk.

49. In terms of dissemination of the child abuse material offences, one offence relates to the dissemination of an image to the co‑offender of the naked pre-pubescent female child, with her legs spread open and which was categorised as CETS level one, which is the lowest level of seriousness in that scale. This offence can be seen in part as an act by the offender, conducted with the intention of keeping in contact with the co‑offender, during the conspiracy count. Given the fact that there was only one image, its CETS classification and the dissemination was to one person and not for money, I assess the level of objective seriousness as within the low range.

50. During the course of the procure offence, the offender, disseminated to the police online entity, two images which fell within category one of the CETS scale. Again, there were only two images, the CETS scale category was one, and they were not distributed for money. I assess the level of objective seriousness of that offence as within the low range.

51. I turn then to my assessment of the objective seriousness of the offences committed against the offender’s daughter. Common to all of the offences, is a very significant breach of trust by a parent to a young daughter. As has been said in the Court of Criminal Appeal on a number of occasions, there can be few worse breaches of trust than when a parent commits a sexual offence upon a young child. All of the offences were committed in the home of the victim, where she was entitled to feel safe, and that is an aggravating factor. The victim was very young, namely, between three and five, during the commission of the offences in counts 1 and 2, and five years of age when counts 3 and 4 were committed.

52. The sexual intercourse offences involved digital penetration and while there is no hierarchy of seriousness in terms of the type of sexual intercourse, digital penetration is generally considered to be less serious than penile vaginal or penile anal intercourse.

53. The offences appear to have been of relatively short duration. However, this does not mitigate the offence when the victim is so young – see R v Egan [2016] NSWCCA 285. Count 1 involved digital penetration of a young child between three and five. Having regard to the matters I have mentioned, I consider the level of objective seriousness to be well within the midrange. I assess the level of objective seriousness of the other sexual intercourse offences, counts 3 and 4, to be similar. Count 2, involving masturbation of himself with a young child. I consider that offence to be within the midrange of objective seriousness.

Offender’s Subjective Case

54. I turn then to the offender’s subjective case. He is currently 54 years of age. He was in his early 40’s at the time of this offending against his daughter, and 50 at the time of the 2015 offences.

Criminal and Custodial History

55. The offender has no prior criminal convictions. The lack of any prior criminal record, entitles him to some leniency in this sentence.

56. In relation to the 2015 offences, he was arrested on 22 October that year and he has been in custody since that time. In relation to the offences committed against his daughter, he was arrested and charged on 31 August 2016 while in custody. I will be utilising the aggregate sentence provisions and the aggregate sentence will commence on 22 October 2015, to take account of his pre‑sentence custody.

Sentence Assessment Reports and Psychological Reports

57. The following reports have been provided to me during the sentence proceedings:

1. A sentence assessment report dated 22 August 2019;

2. A psychological presentence report dated 20 August 2019, prepared by Mr Andrew Redmond, a psychologist;

3. A psychology report prepared by Ms Miriam Bright, a psychologist, dated 30 August 2018;

4. A second report by Ms Miriam Bright, dated 16 August 2019;

58. An undated statement by the offender and I note four pages of that document were not pressed on sentence. I also note the offender did not give evidence at sentence, noting that some of his background was the subject of evidence he gave at the trial.

59. The subjective material reveals the following. In terms of his family background, he grew up in Auburn and has two younger sisters. His parents had a turbulent relationship. He described his father as an alcoholic who became violent when drunk. The offender reported that his family lived in fear and were in a regular state of stress and anxiety. The offender has four children, three of whom are his biological children and one who is his wife’s son from another relationship.

60. The offender’s wife has now commenced divorce proceedings and all contact between the two occurs through solicitors. The offender now has essentially no contact with his children. As one would expect, given the nature of the offending he has no support from his immediate family. The offender’s current support network appears to comprise his mother and a past cellmate, who he now calls a friend.

61. The offender reported and gave evidence at trial of sexual abuse he suffered as a child. The offender claimed the abuse began when he was about nine years of age and stopped a few years later. The person who abused him he claimed was an older teenage boy who lived next door. Clearly at trial the jury did not accept the offender as a witness of truth in relation to his denials of the offences. I consider that there were aspects of the offender’s evidence at trial which simply could not be accepted.

62. His evidence at trial and aspects of the subjective material placed before me on sentence show him to be an intelligent and capable man. The evidence he gave at trial that in order to find someone with whom he could discuss and seek assistance about his alleged prior sexual abuse, he placed an ad on the website Craig’s List, I simply found unbelievable and unacceptable. The offender, as I say, is clearly an intelligent man of some worldly experience. The idea that in order to seek assistance with coping with what he says was prior sexual abuse as a child he placed an advertisement on Craig’s List I simply find implausible. He clearly knew that was not a place where he would be likely to find persons to assist him with what he claimed was sexual abuse perpetrated upon him. I have little doubt he knew it was a place where he would find other people with the sexually perverted interests that he possesses. I am in these circumstances not prepared to accept the content of his statement tendered on sentence, or his assertions to various report writers that he had been abused as a boy, or the evidence he gave at trial in that respect.

63. In terms of his education and employment history, the offender completed year 10 at high school, but has not had any other formal education or training since then, although as I have observed, he is clearly an intelligent man. Since leaving school the offender mainly worked in the motor vehicle industry prior to his incarceration. His most recent employment was with a company he had been with for some 20 years. The offender occupied a position of managing the wholesale of cars across several dealerships, clearly a senior position. I note the offender has worked in the gaol system as a pod and clinic cleaner and as of August 2019 was involved in packing breakfast rations for inmates.

64. The offender reported to Ms Bright feelings of depression for the last ten or so years, panic attacks and flashbacks of his own sexual abuse. I have already indicated that I am not prepared to accept the offender’s assertions of prior child sexual abuse. The offender reported to Ms Bright that during August and September 2015 he was highly stressed and had plans to commit suicide. Since his incarceration the offender has lost 25 kilograms and is taking anti-depressant medication, blood pressure lowering medication and cholesterol lowering medication. It was noted in one of Ms Bright’s reports that his medical records recorded that he had suffered a stroke in 2013, but clearly that did not prevent him from engaging in his employment and I conclude it must have been quite mild. As at consultation on 9 August this year Ms Bright assessed the offender as being severely depressed, moderately anxious and highly distressed. The offender reported to Ms Bright on that occasion that his mental state at the time had been seriously affected by the divorce proceedings with his wife and the recent guilty verdict relating to the charges against his daughter. His mental condition at that stage was understandable given the position the offender now finds himself in. Ms Bright reported that

“It is likely that the adverse earlier experiences of his sexual abuse have contributed to [RDT]’s distress and to him behaving in a way that resulted in him being incarcerated.”

65. However, Ms Bright noted that

“A formal diagnosis of this would need to be completed by a therapist who is experienced in diagnosing and treating people who have post-traumatic syndrome due to prolonged child sexual abuse”.

66. As I said earlier, I am not prepared to accept the offender’s assertion about prior sexual abuse and I note in that regard there is no diagnosis before me that he is someone suffering from post-traumatic stress syndrome.

67. The subjective material I have been provided with provides somewhat contradictory information concerning the offender’s attitude to his offending. Ms Bright reported the following concerning the offender’s attitude:

“He continues to emphatically deny any guilt and told me that if he had been guilty he would not have put his daughter through the trauma having to be a witness during the trial. He said if he had been guilty he would have pleaded guilty right at the start of the proceedings.”

68. The author of the Sentence Assessment Report describes the offender as attempting to minimise his offending and recalls that the offender claimed to have never had any intention of meeting the co-offender Mr F, and that he believed the child of the co-offender’s discussed was fictional. I have already made a finding that I am satisfied beyond reasonable doubt that he intended to engage in the sexual activity described in his communications with F if a child was made available to him. The inference concerning that is, my opinion, overwhelming.

69. The Sentence Assessment Report states:

“[RDT] denied that he has sexual interest in children, however, this appears to contradict the agreed facts where he stated that he has had a sexual interest in infant children for 20 years.”

70. I note that it contradicts also the content of the record of interview he gave to the police in 2015 and the evidence he gave to the jury at his trial, although at trial he appeared to not accept he had had such a sexual interest for as long as he told the police in his record of interview. The offender denied to the author of the Sentence Assessment Report that he had sexually assaulted his daughter and denied that there were any victims of his offending.

71. The offender has provided a statement which expresses shame on his part in relation to the conspiracy offences, somewhat belatedly.

72. There is a Pre-Sentence Psychology Report prepared by Mr Redman concerning the offender’s sexual offending recidivism risk. According to that report the offender was referred to the Psychology Department at Parklea  Community Correctional Centre for an actuarial assessment with regards to his recidivism risk. The offender was interviewed on 20 August 2019. The author of the report notes that it was not a comprehensive assessment and is limited by relying on historical information to assess his current presentation and mental state and information such as individual characteristics that relate to recidivism rates will not have been explored. The author noted the following factors relating to the offender’s recidivism risk:

“[RDT] is a first time offender held on remand since 2015. Prior to the commission of the index offence he had led a pro-social life, enjoying stability in his family life and employment.

2. Did not identify as being a sex offender.

3. [RDT] continued to deny the offences committed against his daughter, advising he will appeal his sentence.

4. Victim empathy was not evident. Contrition was expressed in terms of negative personal consequences.

5. He denied acts of sexual deviance.

6. [RDT] denied a sexual interest in children.

7. Self-serving rationalisations and justifications were used to minimise his own sense of agency for the offences to which he admits.”

73. The offender was assessed using the Static 99 R Test, which is an instrument designed to assist in the prediction of sexual recidivism for individuals charges with or convicted of a sexual offences. Against factors identified by Mr Redman it is reported that the offender scored a zero on his risk assessment instrument, placing him in the “below average risk category or level 2 category relative to other adult male sex offenders”. Mr Redman stated that level 2 would be a higher risk than non-offenders, but lower risk than typical offenders.

74. The Sentence Assessment Report categorised the offender as having a medium to low risk of reoffending.

75. I find it difficult to accept the risk of sexual reoffending that have been made in the reports. That is because the offender has made inconsistent statements since 2015 about his sexual interest in children. He has yet to engage in any sex offender programs, although he has apparently expressed a willingness to do so to Ms Bright.

Consideration

76. In terms of the timing of the pleas of guilty for the 2015 offences, he was committed for trial in relation to the conspiracy and attempt to procure a child offences and entered pleas of guilty shortly prior to the commencement of the proposed trial. I propose to allow him a 10% discount of his sentence for the utilitarian value of his plea. He had entered pleas of guilty to the dissemination of child abuse material at an earlier point in time in the Local Court. I will allow him a 25% discount of his sentence in relation to those offences.

77. The offender has no remorse in relation to the offences committed upon his daughter, maintaining his innocence, which is, of course, his right. There is very limited remorse in relation to the 2015 in my opinion, given the late plea and the inconsistent statements he has made about his intention concerning the obtaining of access to the child, the subject of the conspiracy.

78. His prospects of rehabilitation are no better than guarded. He does not appear even at this late stage to acknowledge that he has had clearly a longstanding sexual interest in children. He is yet to receive any rehabilitative treatment in that regard.

79. I said earlier that I would utilise the aggregate sentencing provisions. If I had not done so, my approach to concurrency and accumulation would have been as follows. In relation to the offences upon his daughter there would need to be some accumulation of the sentences for each of those offences, given the fact that they each related to a separate sexual offence committed upon a very young child.

80. The sentences for the 2015 offences should be significantly accumulated upon the sentences for the offences committed upon his daughter. Within themselves I do not think that the sentences for the disseminate child abuse material offences would be accumulated upon the conspiracy or the attempt to procure a child offence. They would be consumed in the criminality of those two offences.

81. The attempt to procure a child offence was essentially in my view a continuation of the conduct encompassed within the conspiracy offence. There should in those circumstances be limited accumulation in relation to the sentences for those two offences. I also need to ensure that I do not impose one might be thought to be a crushing sentence.

82. Section 25AA of the Crimes (Sentencing Procedure) Act means that I must sentence in accordance with the sentencing patterns and practices as at the time of sentencing, that is today, not as at the time of the offending, although the maximum penalties that are to be applied are those that applied at the relevant times. I must also have regard to the fact that, regrettably, because of the number of such cases coming before this Court, the Court has a far greater understanding of the impact of child sexual abuse upon children.

83. There is an issue of parity, at least a partial issue of parity that I should have regard to. The co‑offender F was sentenced by Hanley DCJ for the conspiracy count and other offences which were not common to this offender. On the conspiracy count, which was common, his Honour indicated an indicative sentence of seven years and six months. I note in that regard his Honour allowed F a 15% discount of his sentence. I also note F had limited criminal history, a lack of remorse and insight, was 63 years of age and with very significant health problems, which meant that his time in custody would be more difficult than for other offenders.

76. His Honour made findings that F was unlikely to be capable of reoffending given his health issues and there were reasonable prospects of rehabilitation. I have not lost sight of the fact that F’s offending involved a breach of trust as the child concerned was his own granddaughter. In considering the appropriate indicative sentence on that count here, I have taken into account the sentence his Honour imposed on the co‑offender. In my view the co‑offender had a far more compelling subjective case than this offender.

77. I have carefully considered whether I should make a finding of special circumstances here when fixing the non‑parole period. It will be his first time serving a sentence and the sentence necessarily will be a long one with a long non‑parole period. There is some evidence in Ms Bright’s report that he has suffered a stroke in the past, but that did not prevent him from carrying out employment. I have rejected the submission that his offending was in some way linked to prior sexual abuse he suffered as a child. On balance I do not consider it is appropriate here to make a finding of special circumstances, bearing in mind it is a discretionary matter for me.

78. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victim and the community, and the offender’s rehabilitation.

79. General deterrence is always important to have regard to when sentencing for sexual offending against children. The level of criminality here and overall abhorrent conduct by this offender is very high. Sentences imposed on child sexual offenders and predators like this offender must be very significant sentences to deter them and others from such shocking crimes against children. Young vulnerable children should be free to enjoy the joys of childhood without having those joys taken away from them by sexual predators like this offender.

80. The maximum penalties and where applicable the standard non‑parole periods have been taken into account as legislative guideposts, as explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120. I have had regard to all of the objective and subjective factors I have mentioned in these remarks in indicating the indicative sentences and imposing the aggregate sentence.

Orders

89. I will not require the offender to stand as he is appearing by AVL. He is convicted of all of the offences to which he has pleaded guilty and of which the jury found him guilty. The first sentences I announce will be the indicative sentences. The offender will then hear what the final sentence is.

90. I will firstly deal with, in terms of the indicative sentences, the 2015 offences. On the conspiracy to have sexual intercourse with a child under ten years of age there is an indicative sentence of eight and a half years imprisonment. On the attempt to intentionally procure a child under 14 years of age for unlawful sexual activity, there is an indicative sentence of six years imprisonment with an indicative non‑parole period of four and a half years imprisonment.

91. On both of the disseminate child abuse material offences there is an indicative sentence of one month’s imprisonment. On the sexual intercourse with a child under ten years offence, being count 1 on the indictment, there is an indicative sentence of eight years imprisonment with an indicative non‑parole period of six years. On the commit act of indecency with a child under ten offence, which is count 2 on the indictment, there is an indicative sentence of three years imprisonment. On both of the two remaining sexual intercourse with a child under ten years offences, being counts 3 and 4 on the indictment, there are indicative sentences of eight years imprisonment, with an indicative non‑parole period of six years.

92. I impose an aggregate sentence of 20 years imprisonment with an indicative non‑parole period of 15 years. The sentence commences on 22 October 2015 and expires on 21 October 2035. The non‑parole period expires on 21 October 2030.

93. The earliest date you may be released to parole is the date of the expiry of the non‑parole period, which is 21 October 2030. Whether you are in fact released to parole that day is a matter for the State Parole Authority, which will no doubt take account of your behaviour in prison in determining whether you are released then or on another date. You should understand that because of the nature of your offending, that you may be subject to an application to extend your detention beyond your sentence under the Crimes (High Risk Offenders) Act.

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Amendments

24 October 2019 - Counsel's name added.

25 October 2019 - [84] "prospects of reoffending" amended to "prospects of rehabilitation".

Decision last updated: 25 October 2019