R v RI

[2022] NSWDC 676

District Court

New South Wales

Medium Neutral Citation:

R v RI [2022] NSWDC 676

Hearing dates:

14 December 2021

Decision date:

18 March 2022

Jurisdiction:

Criminal

Before:

K Robinson DCJ

Decision:

Sentenced to an aggregate term of imprisonment of 20 years; non-parole period 12 years

Catchwords:

CRIME – Sentence – adult maintain unlawful relationship with child – 3 victims related to offender – victims under authority - significant age difference – aggravating factors - plea of guilty – prospects of rehabilitation guarded – continued denial of offending - prior criminal history – background of trauma and abuse – family support – special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act1999

Cases Cited:

Attorney General’s Application No 1 (2002) 56 NSWLR 146

Bugmy v R [2013] HCA 37

BurrvR [2020] NSWCCA 282

GP v R [2021] NSWCA 180

Ibbs v R (1987) 163 CLR 447

Minehan v R [2010] NSWCCA 140

R v Hutchinson [2018] NSWCCA 152

R v Langbein (2008) 181 A Crim R 378

R v Millwood [2012] NSWCCA 2

R v Porte [2015] NSWCCA 174

R v Warwick (No 94) [2020] NSWSC 1168

Veen v R(No 2) (1988)164 CLR 46

Xerri v R [2021] NSWCCA 268

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Mr R I (Offender)

Representation:

Counsel:
Crown: Mr N Marney
Defence: Mr B Hancock

File Number(s):

2020/00357705

Publication restriction:

Statutory non-publication order re the identity of the victims and anything that may identify them

Judgment

1. The offender, RI, aged 67 is to be sentenced for three offences of maintaining an unlawful relationship involving three separate children. A statutory non-publication order applies to any material that may identify or lead to the identification of any one of the victims. Accordingly, they will be referred to by their initials only. The specific offences are as follows:

Sequence 30; that between 29 October 1989 and 27 April 1990 at Surry Hills in New South Wales, being an adult, he did maintain an unlawful sexual relationship with a child MM, then aged under 16 years, namely seven years of age, in which he engaged in two or more unlawful sexual acts including having MM perform fellatio on him and indecently assaulting her by rubbing his penis against the outside of her vagina.

Sequence 31; that between 1 September 1996 and 23 December 2005 at Colyton in New South Wales, being an adult, he did maintain an unlawful sexual relationship with a child KG, then aged under 16 years namely between six and 15 years of age, in which he engaged in two or more unlawful sexual acts including digital penetration of her vagina, exposing his penis to her and having her touch it and, exposing his penis to her and pulling her head towards it and;

Sequence 32; that between 1 September 1996 and 31 December 2006 at Colyton in New South Wales, being an adult, he did maintain an unlawful sexual relationship with a child, TB, then aged under 16 years, namely four to 14 years of age, in which he engaged in two or more unlawful sexual acts including, having her perform fellatio on him, committing acts of indecency towards her by exposing his penis to her and directing her to touch it and indecently assaulting her by touching her on her breasts and the outside of her vagina.

2. All three offences are contrary to s 66EA(1) of the Crimes Act 1900. Consistent with the majority being Price J, Bell P, as he then was, in agreement and Hamill J dissenting in Xerri v R [2021] NSWCCA 268 at [111], and consistent with the parties' submissions, I accept the applicable maximum penalty for the offences to be life imprisonment. That penalty alone signifies Parliament's view of the seriousness of the offending and serves as an important yardstick or guidepost in the sentencing exercise.

3. The offender also asks that I take into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act1999, an offence of possessing child abuse material on a mobile phone on 17 December 2020 at Penrith, New South Wales, an offence contrary to s 91H(2) of the Crimes Act 1900, and carries a maximum penalty of ten years imprisonment. That offence attaches to sequence 32. I am aware of the principles that apply in considering the Form 1 offence consistent with the guideline judgment in the Attorney General's Application No 1 (2002) 56 NSWLR 146.

4. The offender must be sentenced in a way that will provide appropriate punishment for the offences to which he has pleaded guilty. I am required to impose a sentence that is proportionate to the gravity of the offences and in doing so to have regard to the factual circumstances of the offending and the subjective features of the offender.

5. I must also pay attention to the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act. Those purposes may overlap and may sometimes point in different directions but are important guideposts to the appropriate sentence to be imposed (Veen v R (No 2) (1988)164 CLR 46). Once all of the relevant factors have been considered and, as Garling J observed in R v Warwick (No 94) [2020] NSWSC 1168 at [15],

"The sentencing judge is then in a position to undertake an 'instinctive synthesis' whereby the judge 'makes a value judgment' as to what is the appropriate sentence, given all of the factors of the case. As the “instinctive synthesis” approach to sentencing embodies a value judgment, there is no such thing as a single correct sentence."

AGREED FACTS

6. Agreed facts are contained in the Crown bundle. The facts are reasonably lengthy and I have attempted to summarise them where I can. I have, however, read and considered the entire document.

OFFENDING INVOLVING MM

7. The offender is the victim's maternal uncle. Over the period 29 October 1989 to 27 April 1990, when the victim was seven years of age, the offender engaged in numerous unlawful sexual acts with her. The offender was living with the victim, her mother and brother in their apartment at Surry Hills. He would sleep on the sofa in the loungeroom and cared for the victim when her mother and brother were absent. He would encourage her to remain alone at home with him by giving her chocolate and money. He would play a game with her where he would throw her earring onto the floor, making her find it, after which he would grapple with her on the floor.

8. One day, whilst the offender was caring for the victim in her mother's absence, and after playing the game involving her earring, the offender told the victim to go to the bathroom. When in the bathroom the offender asked her if she had seen a "dick" before and then showed her his penis. He asked her to touch it and then to suck it. He then put his penis in her mouth. Her teeth scraped his penis and he slapped her to the head and told her to stop using her teeth. He ejaculated into her mouth and told her to swallow his semen which she did. After he told her she was a “good girl” and that she could not tell anyone. It was their secret.

9. Later that day he did the same thing to her. He repeated that behaviour on several further occasions over the following months in both the bathroom and in the lounge room. Sometimes it would occur on multiple occasions over the course of the day.

10. On another occasion, when the victim was seven, she went with the offender to visit his former partner and children. During the visit, the offender left with the victim to collect something. Whilst they were in the car, the offender stopped the car in bushland on the side of the road. He took his penis out of his jeans and put it in her mouth and ejaculated. He visited his former partner on two further occasions whilst living at the victim's home. On both occasions he engaged in the same behaviour by putting his penis into the victim's mouth and ejaculating while stopped on the side of the road with her in his car.

11. On another occasion, while still seven, the victim was naked and in her mother's bedroom. The offender had a camera and allowed the victim to use it. He said he would take photos of her and caused her to lay on the bedroom floor.

12. The offender lay on top of her and rubbed his erect penis on the outside of her vagina. The offender repeatedly told the victim that his behaviour towards her was "our secret" and threatened her that he would take her teddy bear or hurt her brother or mother if anyone found out what he was doing to her.

13. In the school holidays while staying with a local friend who was a few years older than her, the victim told her friend about what the offender did with her. The girl's father was informed and he told the victim's mother. He made a report to police. Police obtained a short summary of the information provided by the victim on 27 April 1990.

14. It was recorded that the victim did not want to attend Court and no further action was taken. On 25 September 2019, the victim participated in an interview and disclosed the offender's behaviour.

15. Between 1988 and 2002, the offender was in a relationship with KB. RG is the sister of KB. The victims, KG, born in 1989 and TB, born in 1992 are the daughters of RG. Both victims spent time with the offender on numerous occasions when they visited or were left with the offender whilst their mother and aunty went out or were at work.

OFFENDING INVOLVING KG

16. Over the period 1 September 1996 to 23 December 2005, when the victim was between the ages of 6 and fifteen, the offender engaged in numerous unlawful sexual acts with and towards her.

17. In 1996 when the victim was six years old and visiting her aunty, KB, whilst in the bathroom of the offender's house, the offender put his hands down the front of her pants and inside her underpants. He then put his fingers inside her vagina. The offender repeated this behaviour on a subsequent number of occasions when the victim was six or seven and was visiting the offender's house.

18. On one occasion in 1997, when the victim was seven years old and the offender was looking after the victim as her mother and aunty were out, he asked the victim to go into the laundry with him. He sat her on the washing machine, pulled her pants down and put his fingers into her vagina. The incident lasted about ten minutes. Afterwards, he told the victim that she could not tell anyone because it was their secret and threatened her with death if she told anyone. The offender assaulted the victim in this way in the laundry at that house on around nine further occasions in the period 1997 to 1999 when she was seven, eight or nine years of age.

19. One night in 1997 when the victim was seven, she was asleep in a bunk bed at the offender's residence, as he was caring for her. Her cousin, her Aunty KB's daughter, was sleeping in the bottom bunk and she was on the top. The offender entered the room, picked her up and carried her to the bathroom. Whilst in there, he pulled her underpants down and put his fingers in her vagina. The offender assaulted the victim in this way in the bathroom on four other occasions when she was staying overnight during 1997. During one of those incidents he said to her, "You're pretty” and “you're the beautiful one."

20. On a number of occasions in 1997 when the victim was seven years old, the offender drover her from his house to the local shops. He allowed her to sit in the front passenger seat. On one occasion when returning from the shops, the offender parked the vehicle. He took his penis from his pants, held the victim's hand and put it on his penis which became erect. He said to her, "Your dad would kill me." He released her hand after about five minutes and gave her a lollipop. The offender behaved in the same way towards the victim on two other occasions when they drove to the shops.

21. In 1999 the victim was nine years old and would be cared for by the offender at his home while her mother and aunty, KB, were at work. There was a basement in the premises. The offender often listened to music on his record player in the basement and drank beer. During one day in 1999, the victim was in the basement with the offender. The offender pulled the victim's pants down and put his fingers in her vagina. He then removed his penis from his pants and told the victim to touch it like she did in the car. He caused the victim to touch his penis. He then held the victim by the back of her head and forced her head forward towards his penis so that her mouth touched it.

22. The victim pulled her head away and left the basement. One night in 1999, when the victim was nine years old, she was sleeping at the offender's home. She woke up and went to the toilet. The offender came into the bathroom. The victim attempted to walk past him to leave the room, but the offender stopped her by holding her arm. The offender put his fingers into her vagina. He took his penis from his boxer shorts. The victim went back to bed.

23. After his relationship with KB ended in 2002, the offender lived with her parents at St Marys. They were also the victims' grandparents. In 2005 when the victim was 15 years old, she visited her grandparents at their house. The offender was still living with them. The victim was in the lounge room with her grandparents and her grandmother asked her to get something from their bedroom. As she walked towards their bedroom, she passed the open door of the offender's bedroom. He was sitting on the bed and asked her to come into the room. The victim stopped in the doorway. The offender took his penis from his pants and said, "Come in here. Why aren't you like you used to be?"

24. The victim said to the offender, "Fuck off. You're dirty." The victim told her grandmother she was leaving and went home.

25. On 9 October 2017, the victim complained to her partner, her cousin and a friend. The following day on 10 October 2017, she complained to her mother and her sister TB. On 11 October 2017 she provided a statement to police.

OFFENDING INVOLVING TB

26. Over the period 1 September 1996 to 31 December 2006, when victim TB was between four and 14 years of age, the offender engaged in numerous unlawful sexual acts with and towards her. One day in 1996 when she was four years old, the offender was caring for her at her home. No one else was home. The offender asked the victim, "Do you want some ice cream?" She responded, "Yes." He took her to the kitchen and obtained an empty ice cream container. He pulled his pants down and said to her, "This is how they make ice cream. Open your mouth." He then put his erect penis into her mouth and held the ice cream container under her chin. He held her head back and told her to go back and forth and moved her head in that way. He ejaculated in her mouth.

27. As he did so, he said again, "This is how they make ice cream." The victim said, "That doesn't taste like ice cream," and spat the ejaculate into the container. The offender said to her, "Please don't tell anyone. This is a secret." He also said, "They'll hurt me” and “I will kill your mum and dad." In 1997 when the victim was five years old, she was being cared for by the offender during the daytime. The victim was in the lounge room watching television when the offender asked her if she wanted an ice cream to which she replied, "No." The offender then approached the victim and stood in front of her. He removed his penis from his pants and told the victim to lick it. He then put his erect penis into her mouth and ejaculated. He repeated similar behaviour in the period 1997 to 1999 when the victim was aged five and six.

28. On one occasion, her aunty, KB, spoke to the victim about some misbehaviour in the house. The offender was in the garage area at the time and said to the victim, "Come here. Don't worry about her." He then removed his penis from his pants and said to the victim, "Touch it." The victim ran away to her cousin.

29. On another occasion between 1997 and 1999 when the victim was five or six years old, she was left alone in the care of the offender during the daytime. She was angry because she did not want to be left with him. She went outside the house and was stung on the hand by a bee. The offender treated the sting. Whilst the victim was inside watching television in the lounge room, the offender came in and sat on the lounge. He pulled his pants down, stroked his penis and said to her, "Come over here." The victim walked towards the offender. He stood up and put his penis in her mouth. He then held her head and pushed it so that his penis went into her mouth. He ejaculated into her mouth. He then left the room and the victim remained watching television.

30. On an occasion when the victim was six or seven, she went into the basement when the offender was there. The offender said to her, "Show me your little boobies," and pulled down her singlet. The offender offered to buy her a lolly or give her $2 if she let him touch them. The offender touched the victim's breasts, took his penis from his pants and held it. It became erect.

31. On other occasions when the victim was six or seven years old, the offender offered to buy the victim lollies or give her money if she permitted him to touch her "boobies." The accused touched the victim's breasts on these occasions.

32. One day the offender and victim were in the lounge room of the offender's home. There was no other person at the residence. The victim, who was six or seven years old, was standing next to the television. The offender asked her if she wanted to go to the movies and when she said, "Yes", he said to her, "Well if I'm going to take you to the movies, you've got to do me a favour."

33. He then put his hand inside the victim's clothing for a moment and touched the outside of her vagina. On the following day he took the victim and her friend to the movies. The offender frequently said to her when she was six or seven, "If you were older, you would be my girlfriend," and, "If only if you were older." He carried photographs of her in his wallet and when she entered a room he would say, "Hubba-hubba." When the victim was 14 or 15 years old, she visited her grandparents' residence. When there, the offender offered the victim his phone in return for her taking photos of her private parts. He repeated this request on subsequent occasions when the victim visited her grandparents. The victim refused to do so.

34. Sometimes whilst there, the offender would ask the victim to come into his bedroom and she would sit on his bed. He would put his hands down the front of her singlet and say, "Let me touch them." The complainant would tell him to leave her alone. On a few occasions when the victim was playing in the pool at the house the offender touched her buttocks when she was bending over and said, "Hubba-hubba." At times he also said, "Look at them little titties."

35. In 2014, the victim complained to her husband. On 13 August 2020 she participated in a recorded interview with police.

FORM 1 OFFENCE

36. The offender was arrested on 17 December 2020. A phone in his possession was seized and analysed. The phone contained 411 images classified under the Interpol Baseline Category as category 1, being material depicting a real child and the child is involved in a sex act, witnessing a sex act, or the material is focused or concentrated on the anal or genital region of the child. Some of these images included the following; a female child performing a sex act with her hands on an adult male in a motor vehicle; and, a female child performing a sex act on a male with wording, "I know it's big sweetie but I need you to put it all the way in your mouth. Daddy won't be satisfied with you licking the tip."

37. The phone also contained 123 images of children of the offender's family created by cropping portions from other photographs. The cropped photographs depicted the open mouth, torso, breasts, buttocks or genital areas of the children. There were also records of 16 internet search requests in terms searching for child abuse material.

38. After his arrest the offender was bail refused and has remained so since that time. He entered pleas of guilty to the offences in the Local Court, entitling him to the full 25% discount arising from the timing of those pleas and pursuant to s 25D(2)(a) Crimes (Sentencing Procedure) Act.

PRINCIPLES OF CHILD SEXUAL ASSAULT OFFENCES

39. The Court rightly punishes sexual crimes against children harshly. This is important in order to send a message to the community that such conduct will not be tolerated in a civilised society and to recognise the harm to victims of sexual abuse. Any sentence imposed must carry a strong message of deterrence. It is well recognised in these times, in this country, the profound impact that childhood sexual abuse can have on the individual which can continue to impact a victim throughout their life.

40. The Royal Commission into Institutional Responses to Child Sexual Abuse found that the impacts of child sexual abuse are

"interconnected in complex ways making specific impacts difficult to isolate,"

citing from the Final report 2017 vol 3 ch 13. Further,

"A robust body of research now clearly demonstrates the link between, "child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences."

Citing Australian Institute of Family Studies, The Long-Term Effects of Child Sexual Abuse, CFCA Paper no 11, 2013, 23.

41. I am required pursuant to s 25AA(3),

"When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing."

42. It is acknowledged that there is no ranking of activities that fall within the definition of sexual intercourse with each acknowledged to be as heinous as the other.

43. As the Court noted in Ibbs v R (1987) 163 CLR 447 at [452],

"a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined."

44. An offence under s 66EA is recognised as, "a more serious offence than the offences which comprise the individual acts" (R v Langbein (2008) 181 A Crim R 378 at [115]). The essential ingredient of the offending is that the offender maintains an unlawful sexual relationship with a child. However,

"the number of sexual acts as well as the nature of those sexual acts is relevant to the assessment of objective seriousness of the offence," (GP v The Queen [2021] NSWCA 180 at [8]),

with that conduct described to be "integral to that consideration," (GP v R at [65]).

45. Other factors relevant to the assessment of objective seriousness for this offending are as set out in Burr v R [2020] NSWCCA 282 at [106], acknowledged to also apply to this provision in GP, again at [63]. Also relevant to an assessment of objective seriousness is the maximum penalty that could have been imposed for the individual acts during the period in which the unlawful sexual relationship existed and pursuant to s 66EA(8). Those relevant penalties have been helpfully identified by the Crown in written submissions.

46. Possession of child abuse material is acknowledged to be an abhorrent crime described to be "callous and predatory" due to its exploitation and abuse of children (R v Porte [2015] NSWCCA 174 at [40]). Well-established principles acknowledge that general deterrence is the primary sentencing consideration given the prevalence and ready availability of child abuse material on the internet and the need to protect children from sexual abuse. Victims of child pornography report life-long impacts as a result of the abuse, including their exposure to revictimization of republished material.

47. The fact that an offender does not pay to access child abuse material or, was not involved in the distribution or sale of such material, does not mitigate the offending. It is acknowledged that there is a paramount public interest objective in promoting the protection of children. The factors relevant to an assessment of objective seriousness for offending of this type are as stated in Minehan v R [2010] NSWCCA 140 at [94], more recently revised and confirmed in R v Hutchinson [2018] NSWCCA 152, by Meagher J at [45].

48. It is, however, a non-exhaustive list. The number of factors requiring consideration acknowledge the number of images is of itself not determinative of the seriousness of the offending.

OBJECTIVE SERIOUSNESS

The offender concedes the principle offending in each instance to fall not below the mid-range, with the Form 1 offence submitted to fall into the lower range. The Crown submits the offending involving MM, to sit at or just below mid-range; the offending involving KG to be objectively extremely serious and the offending involving TB to be the most serious in this instance and to fall in the above average range. With the relevant considerations and submissions in mind, I now turn to the objective seriousness of each of the offences.

OFFENDING INVOLVING MM

49. The offender is the victim's uncle and in a position of trust to her. The offending occurred when the victim was seven years of age and the offender 35 years of age. The age difference was substantial and representative of a power imbalance. The offending occurred over a six-month period. The acts involved were several occasions of fellatio in the victim's home, sometimes on multiple occasions in one day. On the first occasion there was some violence involved. Three further occasions occurred whilst the offender was alone with the victim in his car, placing her in a vulnerable position.

50. On each occasion the offender ejaculated into the mouth of the victim, on occasion telling her to swallow it, increasing the degradation to the victim. The victim was under the authority of the offender.

51. The applicable maximum penalty for such offending at that time was 20 years imprisonment. The indecent assault carried an applicable maximum penalty of six years imprisonment. The victim was naked and in a vulnerable position lying on the floor at the time. The assault was to the outside of her vagina by the offender's penis. It occurred in her home. ‘Under authority’ is an element of the offence and not relevant to objective seriousness.

52. During the offending, the offender made threats, on occasion, to the victim and manipulated her by the playing of games and offers of chocolate and money. The offending was solely for the offender's sexual gratification. The offending is in the midrange but at the lower end.

OFFENDING INVOLVING KG

53. The offending occurred over a nine-year period and started when the victim was six years of age and continued until she was 15. During that time the offender was aged between 41 and 51. The age difference was significant, particularly whilst the victim was under ten, and is representative of a power imbalance. The offending involved multiple occasions of digital penetration of the victim commencing from when she was six years of age through to when she was nine years of age. The applicable maximum penalty for such conduct is 20 years imprisonment.

54. On three occasions, when she was seven years of age and one occasion when she was nine years of age, the offender caused the victim to hold his penis. On the last occasion, he forced her head towards it so that her mouth touched his penis. On another occasion when she was nine years of age, he took his penis from his shorts after he had digitally penetrated her. Such conduct attracts a maximum penalty of ten years imprisonment, other than that which comprises an offence of sexual intercourse.

55. The offending conduct occurred whilst the victim was under the authority of the offender in his home and, on occasion cared for by him in the absence of her mother and aunt, who trusted him to care for her. The offending occurred on occasion when the victim was in a vulnerable position, namely in the car alone with the offender, or in the laundry or bathroom of his home or in the basement. On five occasions the offender removed her from her bed while she was sleeping. The offender threatened the victim with death when she was seven years old and otherwise told her she could not tell anyone because it was their secret.

56. On one occasion he manipulated her by giving her a lollipop after an indecent assault in his car. The final act occurred when the victim was older, namely 15 years, and the power imbalance was not as significant. No acts had occurred in the intervening period. That offending did not involve any touching and was short-lived, quickly ended by the victim leaving the room. The applicable maximum penalty for that conduct is seven years imprisonment. The offending was solely for the offender's sexual gratification. The offending falls into the mid-range but sits below that of the offending involving MM.

OFFENDING INVOLVING TB

57. The offending occurred over a ten-year period commencing when the victim was four years old and the offender 41. The young age of the victim when the offending started is significant, as is the age difference between her and the offender. It is representative of a power imbalance that occurred in breach of the trust placed on the offender by his partner and her sister to care for the victim. The offending involved a number of occasions of fellatio when the victim was only four, five and six years of age. The offender ejaculated into the victim's mouth, that aspect increasing the degradation of the victim.

58. It involved manipulation of her, particularly on the first occasion and the offender using the act of fellatio to tell the victim he was making ice cream.

59. The acts of indecency and indecent assault included; the offender inciting the victim to touch his exposed penis, and the touching of her breasts and the outside of her vagina under her clothing; he offered her money, lollies or a trip to the movies on other occasions; the offender entreated the silence of the victim, telling her not to tell anyone and threatening to kill her mum and dad; that threat occurred when she was only four years old; the offending occurred when the victim was vulnerable and, in his home alone with the offender.

60. The applicable maximum penalty for the conduct is 20 years imprisonment for the fellatio and ten years for the indecent assaults and acts.

61. There was a gap in offending from when the victim was aged seven until she was aged 14 to 15. The offending that occurred at that stage was less serious. It principally involved the offender touching the victim's breasts under her clothing, touching her buttocks while she was bending over and inciting her to take photos of her private parts which she refused to do. That conduct attracts a maximum penalty of seven years imprisonment. The offending was for the sole gratification of the offender.

62. It falls into the mid‑range but sits higher than the offender involving the other two victims.

FORM 1 OFFENCE

63. The possession of the child abuse material offence did not involve a significant number of images, but those images possessed all fell into category 1. Real children were involved in sex acts that were depicted. Given the associated internet search requests, it is assumed the possession of the material was for the offender's sole benefit and gratification. There was no other information to suggest his involvement with the actual children depicted or others involved in similar conduct or the dissemination of the material in any way. Other images in the offender's possession were of family members that had been defaced and-or cropped in a sexualised way. That aspect of the offending is particularly distasteful.

64. The Agreed Facts do not otherwise identify the Minehan factors that would elevate the seriousness of the offending. I accept that the offending falls into the low range but not towards the lowest end. I accept the Crown's submission that the nature of that offending will not have a significant impact on the sentence to be imposed for the principal offence to which it attaches.

VICTIM IMPACT STATEMENTS

65. All three victims presented victim impact statements to the Court. TB read hers out and KG had hers read out for her. MM’s statement was tendered. The statements are detailed and personal and their contents moving yet disturbing. All victims clearly expressed the extent of the impact of the offender's repeated abuse of them for many years and across many facets of their lives. The impact has extended beyond themselves to impact their close relationships and family members.

66. MM spoke of her struggles as a teenager with self-harm and suicidal thoughts. She spoke of her overprotective nature towards her own children and the re-traumatisation caused by her involvement with police and the Court system.

67. KG spoke in detail of the impact of the offending throughout her school life. She spoke of the fear and concern she felt when she herself had a daughter, fearing a similar fate for her. She described a breakdown, subsequent hospitalisation, diagnoses and ongoing medication regime.

68. TB similarly experienced extensive issues with her mental health, diagnosed with severe depression and anxiety. She has attempted to take her own life three times. She describes having to live with the impact of the trauma “each and every day”. Impressively, both she and her sister KG expressed their resolve to survive the trauma of their abuse and to continue to be strong for their families.

69. The content of those statements and the emotion with which they were prepared and delivered, confirms the extensive damaging and detrimental impact of such offending on the victims. They were, in fact, consistent with the findings of the Royal Commission about the profound impact of such behaviour, particularly on child victims. I thank each victim for preparing their statement and confirm that I have considered them. Consistent with the Crown's submission I accept that the extent of that harm is inherent, regrettably, in offending of this type but does not aggravate the offending. The harm is recognised by consideration of the general principles and the purpose of sentencing found in s 3A(g) Crimes (Sentencing Procedure) Act.

AGGRAVATING FACTORS S 21A(2)

70. Each offence includes factors which would aggravate the offending including the age of the victims (s 21A(2)(l)), the offences occurring on occasions in the home of the victim involved (s 21A(2)(eb)), and on others, in breach of a position of authority (s 21A(2)(k)). That is acknowledged on the offender's behalf. Where the latter has not been an inherent aspect of the specific underlying offending it has, however, been taken into account in considering objective seriousness, as is the fact that some of the offending occurred in the home and the ages of the respective victims. That approach is consistent with the Crown's submissions and accordingly I will not double‑count those aspects as aggravating factors.

CRIMINAL HISTORY

71. The offender's criminal convictions date back to 1973, when he was 19 years of age, when he committed a ‘break enter and steal offence. Since that date, he has received numerous convictions for dishonesty matters, a number of which have resulted in terms of imprisonment. More recently, his offending involved driving offences. He has one prior sexual offence which occurred in June 1982. On conviction for five counts of indecent assault, he entered into a supervised recognizance for three years. Prior to this offending, his last criminal conviction was in 1995 when he received a fixed term of six months' imprisonment for a ‘break & enter with intent’ offence.

72. This is his first return to custody since that time and represents his longest period in custody to date. His criminal history does not entitle him to leniency. I accept, however, that the break in offending since his last conviction and the cessation of this offending conduct, ameliorates to some degree the significance of specific deterrence and the need to protect the community.

THE OFFENDER'S SUBJECTIVE CASE

73. The offender tendered the following material on sentence:

1. Psychological assessment and report of Anita Duffy dated 29 November 2021.

2. Letter of support from family member dated 6 December 2021.

3. Justice Health and Medical records over 2020 and 2021.

4. Letter from Melinda Griffiths, lawyer, dated 18 November 2021.

74. The offender's background is contained in a psychological report of Ms Duffy. It was not adopted in evidence and, I note the caution to be approached in accepting its contents in those circumstances. I do intend to place some weight on it, given some aspects were confirmed in the Sentencing Assessment Report and that the Crown does not appear generally to challenge it.

75. The offender never met his father. He was raised by his mother and lived together with her partner, his siblings and half-siblings from his mother's relationship. His mother drank constantly and paid him little attention.

76. His stepfather was violent to her and to the children, including the offender, whom he is said to have bashed frequently. He reported violence at the hands of his older brother, who tried to kill him on several occasions when he was young, by attempting to drown him, bury him and is reported to have hit him over the head with a shovel. This brother, and his older sister, died some years ago. The offender has had little contact with his younger siblings. His mother committed suicide following an overdose of pills, dying in his arms, gasping for breath.

77. The offender reported literacy and numeracy difficulties at school. He began drinking alcohol at age nine and continued to drink regularly.

78. By the time he was 15, “welfare” had become involved with him and he was taken to juvenile institutions. He had no formal education from that time on. He has received Commonwealth benefits, including more recently, disability support pension due to health issues. He reported one job at a cemetery for a year which ceased due to an operation on his arm and had previously worked in a sheltered workshop. He was living in Housing Department accommodation at Penrith for seven to eight years prior to going into custody for these offences.

79. He reported being sexually assaulted by officers whilst in juvenile detention in his teens. He reports recurrent memories of the experience heightened, by his return to custody.

80. Ms Griffith in her letter before the Court confirms legal action has been taken for an historic sexual abuse claim. He reported the abuse he suffered as a child from his stepfather and older brother, his exposure to alcohol and domestic violence and that the sexual assaults caused him depression, leading him to self-medicate with alcohol from age nine. He reports heavy drinking on a daily basis since he was a child. He reported several suicide attempts by drinking methylated spirits, overdosing on pills and cutting his wrists. He is not currently receiving any medication relating to his mental health. He expresses a commitment to remain abstinent from alcohol and on his return to the community. He has never used illicit drugs.

81. Ms Duffy referred to the offender's background and formative years to be representative of chronic trauma given his exposure to parental substance use and intoxication, domestic violence, physical abuse at the hands of his older brother and stepfather, psychological and sexual abuse, difficulties at school, illiteracy, early exposure to welfare authorities and placements in juvenile detention wherein he was subsequently sexually assaulted. She stated that such exposure at such times can lead to neurobiological impacts on executive function and emotional regulation.

82. She opined him to cope with the stress of his negative experiences by use of alcohol from a young age, with alcohol usage normalised in his home environment. She described him to have since used alcohol as a major coping mechanism. She opined him likely to have been intoxicated over the offending period thereby affecting his judgment and capacity to control his impulses. She noted recent studies and findings of the Royal Commission to acknowledge the use of substance abuse and behavioural issues arising from such a background of trauma and abuse.

74. The offender had two significant adult relationships including with KB, the aunt of two of the named victims. He has a son and two adult daughters from the first of those relationships. His stepson from his relationship with KB remains supportive of him. His stepson and his wife are the only family members who have. In her letter to the Court, his stepson’s wife confirmed regular contact with the offender whilst in the community, more recently taking on an active role in caring for him and attending to his daily needs.

75. She told Ms Duffy they regard the offender as a loved parent and "Poppy" to their children whom he regularly cared for without issue. They have remained in contact with him by phone and AVL since he has been in custody and confirm that he retains their full support. They are prepared to assist and accommodate him on his return to the community.

76. The offender has well-documented physical health issues with his principal concerns being chronic obstructive pulmonary disease, referred to as COPD, and pulmonary emphysema. Those conditions are described by Ms Duffy to have become more pronounced in recent years and have led to a number of admissions to hospital and the increased involvement of his stepson and daughter-in-law. He also has gastro-oesophageal reflux disease and suffers from dizziness. He has mobility issues arising from his emphysema that require the assistance of a mobility scooter whilst in the community and now, whilst in custody, a walking stick. Medical documents produced confirm that on arrest for these matters the offender was admitted overnight to hospital and again since his admission to custody for exacerbation of his COPD. Justice Health records otherwise show that he has had his health and medications monitored since being imprisoned.

77. Ms Duffy administered a number of tests and opined the assessments to show strong evidence that the offender has a mild intellectual disability. She recommended a full assessment of his cognitive abilities and deficits, something she was not able to undertake given her contact with him was via video link. There is no material before the Court to show such further assessment. Other testing conducted by her, showed results on the depression and anxiety scales to lie in the extremely severe range, with the stress scale score to be in the severe range. She noted the offender to present with symptoms consistent with Post-Traumatic Stress Disorder. He also satisfies the diagnostic criteria for an Alcohol Use Disorder, severe, in sustained remission in a controlled environment.

78. On application of the Static-99 Assessment Tool, she assessed the offender's level of risk to fall into the below average range. Protective factors she noted included the support of his remaining family, his general health limitations and his age, with the historic nature of the offending reducing his risk of reoffending in the same way.

79. A psychological consultation conducted by Corrective Services, in relying upon different risk factors, assessed the offender to fall into the above average range of sexual recidivism on application of the same tool.

80. Ms Duffy stated that his low score on the Static-99 score will make him likely ineligible for sex offender programs in custody. She recommended his future treatments to focus on managing distressing emotions without recourse to alcohol, continued abstinence from alcohol and counselling for his past abuse experiences. She described him to display a readiness, in particular, for treatment to prevent a relapse to alcohol.

81. A Sentencing Assessment Report prepared by Taylor Olsen, Community Corrections Officer with Long Bay Parole Unit, confirmed the offender's behaviour in custody to be satisfactory and free of any institutional misconduct charges. Upon entering custody, the offender was managed by the risk intervention team for medical reasons. She otherwise confirmed aspects of the offender's background and current support network as referred to in Ms Duffy's report. She confirmed the offender to not accept responsibility for the offences, insisting the victims had made up the allegations. He also denied responsibility for the child abuse material found on his phone. He failed to acknowledge the trauma associated with sex offences. She noted his ambivalence to addressing his alcohol use, but willingness to engage in the sex offender program in custody and/or with the psychologist, to address his sex offending; indications I note, contrary to those expressed by Ms Duffy. She assessed him to be at a medium to high risk of reoffending generally.

82. It is conceded that there is no evidence of the offender's remorse before the Court. In fact, to the contrary, the material shows that he continues to lack any acceptance of responsibility for his offending nor any insight into the impact of it upon the victims involved. The fact of the guilty plea is not sufficient to found remorse, although I do acknowledge that those pleas spared the three victims the traumatising experience of giving evidence.

83. The risk assessments conducted using the Static-99 tool, produced different outcomes, but significantly, neither assessment shows the offender to present with a significant risk of sexual reoffending. His risk of reoffending in a generalised way is also average. Given the absence of any criminal convictions for a considerable period and the passage of time since this offending ceased, without evidence of repeated behaviour, I accept that he does not present currently with any real risk of reoffending in either a similar or general way.

84. It is acknowledged that his prospects of rehabilitation are guarded. His continuing denial for his offending conduct, despite his pleas of guilty, suggests him unlikely to benefit from any treatment directed to his offence specific behaviour.

85. Positively, he had taken some steps to reduce his alcohol dependence prior to going into custody and has since remained abstinent. He has expressed an interest in engaging in treatment for that dependence. Given that that dependence is not causally connected to the offending, those positive signs do not improve his prospects of rehabilitation. I accept that he has some pro-social stability available to him through his stepson and his family. Their ongoing support of him, including for when he returns to the community, is relevant to his prospects of rehabilitation, but does not change my assessment of them.

86. It is submitted, on the offender's behalf, that his background enlivens the principles enunciated in Bugmy v The Queen [2013] HCA 37. The Crown does not challenge that. I accept that the offender's background, wherein he was exposed to violence, alcohol abuse and use, within the home, during his formative years, impacted upon his development, contributed to his subsequent alcohol dependence and exposed him to a custodial environment, wherein he was sexually abused. It is a background consistent with that identified by Simpson J in R v Millwood [2012] NSWCCA 2 at [69], wherein she stated;

"I am not prepared to accept that an offender who has the start in life that the respondent had, bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions…the impact of that background does not reduce in significance over time.”

96. Consequently, I accept the offender's moral culpability is reduced generally and that the significance of general deterrence and denunciation in this sentencing exercise is similarly reduced. That impact, however, is not significant given, as is submitted by the Crown, the extent of the offending conduct and the steps taken by the offender to facilitate it such as, for example, creating situations where he was alone with the victim and threatening them to ensure their silence.

97. I accept the submission that the offender's alcohol dependence does not mitigate his offending but likely explains to some extent his disinhibited, repeated behaviour, as opined by Ms Duffy. I accept that his alcohol dependence is linked to his background and given its longstanding nature, increases the relevance of rehabilitation. On the material available to me, I could not conclude that the offender suffers from a mild intellectual disability, but I accept Ms Duffy's unchallenged opinion that he suffers from cognitive deficits warranting further investigation. The material does not establish that those deficits materially contributed to the offender's conduct such as to reduce his moral culpability for the offending. I accept, however, that those deficits make him a less appropriate vehicle for general deterrence, but the amelioration of general deterrence is again limited, in the absence of any further material. His cognitive deficits, combined with his likely diagnoses as opined by Ms Duffy, including PTSD and his current levels of stress and depression, I accept will impact upon his time in custody making it more onerous. Similarly, I accept that his combined health and mobility issues will make his time in custody more burdensome.

98. I accept it is the responsibility of the executive to care and treat the offender which, consistent with the materials produced, appears to be occurring satisfactorily. There is no material to show that his condition has deteriorated whilst in custody, or that his current environment has had a grave impact on his health. The nature of those conditions, combined with his age and the ongoing impact of the pandemic, will make him more vulnerable whilst in custody and subsequently contribute to his time being more onerous. In making that finding, I accept the relevance of the fact of the offender's period of remand to have been in an environment affected by COVID-19 and the consequent anxieties, lockdowns and restrictions that have generally arisen.

99. Those factors, being the combined impact of the offender's age, physical health, mental health conditions and the presence of COVID-19, will be reflected in a variation to the statutory ratio by a finding of special circumstances.

DETERMINATION

100. There is no sentence appropriate in this instance other than one of full‑time custody. That is conceded on the offender's behalf. That sentence must be significant in order to reflect the nature of the offending, the maximum penalty, the general principles that apply for offending of this type and the purposes of sentencing. Those purposes, in particular, see the increased relevance of adequate punishment for the offending, recognition for the harm done to the victims, general deterrence and denunciation, albeit those two purposes to a lesser extent. The remaining purposes are, of course, still relevant but have a lesser role to play in this sentencing exercise. I acknowledge the relevance of specific deterrence to the Form 1 offence.

101. The sentence imposed must reflect the fact that the offender, over a lengthy period, repeatedly violated the innocence of three young children, who were either related to him or had been entrusted to his care, for his own sexual gratification. The circumstances of the offending can only be described as abhorrent and insidious.

102. Whilst I have reviewed the statistics available for this provision, they are of limited use given the small pool and the fact that the statistics straddle both the predecessor offence and this provision.

103. The parties informed me that no reported cases involved three instances of this type of offending are known or available. I otherwise note the limited number of decisions relating to this particular provision.

104. I intend to impose an aggregate sentence for the offending. In doing so, I must be mindful of the principle of totality. The sentence I impose must be just and appropriate and not crushing to the offender. However, given it involves repeated offending involving three separate victims, the sentence must maintain the community's confidence in the administration of justice when sentencing for multiple offences.

105. I accept the submission made by the Crown that there ought to be a measure of accumulation reflected in the length of the sentence. The offending involving victims TB and KG occurred over a similar period and accordingly can reflect some measure of concurrence. The earlier separate offending regarding MM however will require a reasonable level of accumulation.

106. The sentence I impose will be backdated to take into account the period of time that the offender has been in custody, bail refused, on these matters.

107. For the reasons earlier indicated, I make a finding of special circumstances and vary the statutory ratio. The non-parole period I impose will be approximately 60% of the overall sentence.

108. As I am required to do, I will indicate the sentences that would have been imposed for the principal sentences, were I not proceeding with an aggregate sentence. The 25% discount to which the offender is entitled will be applied to those sentences.

109. I indicate the sentences I would have imposed for the principal offences to be as follows:

• Sequence 30; a term of imprisonment of 14 years, less 25% discount for the plea of guilty, resulting in a sentence of ten and a half years.

• Sequence 31; a term of imprisonment of 13 years, less 25% for the plea of guilty, resulting in a sentence of nine years and nine months.

• Sequence 32; and taking into account the Form 1 offence, a term of imprisonment of 16 years, less 25% for the plea of guilty, resulting in

a term of 12 years.

110. I now make the following orders:

Of all the offences before the Court, you are convicted. You are sentenced to an aggregate term of imprisonment of 20 years, consisting of a non-parole period of 12 years and a balance of term of eight years. That sentence commenced on 17 December 2020 and will expire on 16 December 2040. You will be eligible for release to parole on 16 December 2032. I recommend the report of Ms Duffy be provided to Justice Health.

111. Sir, do you understand the sentence that I have imposed upon you today?

112. OFFENDER: Yes.

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Decision last updated: 09 February 2023