R v RM (No. 6)

Case •

[2023] NSWDC 305

•

11 August 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v RM (No. 6) [2023] NSWDC 305
Hearing dates: 11 August 2023
Date of orders: 11 August 2023
Decision date: 11 August 2023
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraph 108

Catchwords:

CRIMINAL LAW – sentencing – child sexual offences – father commits offences of indecent assault, sexual intercourse with child, sexual touching and sexual acts towards his daughter – interrelationship of aggravating factors of offending involving an abuse of a position of trust or authority and the vulnerability of a victim where for some counts (aggravated under age sexual intercourse), the circumstance of offending occurring whilst the victim was under the person’s authority was an element of the offence – relevance of evidence at trial of the offender committing an uncharged act against a third party to questions of good character and rehabilitation prospects

Legislation Cited:

Crime (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A

Crimes Act 1900 (NSW) ss 66C, 61J, 61KE, 61KC, 61M

Cases Cited:

Bhatia v R [2023] NSWCCA 12

Cheungv The Queen (2001) 209 CLR 1

Culbert v R [2021] NSWCCA 38

DH v R [2022] NSWCCA 200

DPP (NSW) v Presnell [2022] NSWCCA 146

GL v R [2022] NSWCCA 202

Muldrock v The Queen (2011) 244 CLR 120

PC v R [2022] NSWCCA 107

RvAJP (2004) 150 A Crim R 575

R v Nelson [2016] NSWCCA 130

R vOlbrich (1999) 199 CLR 270

R v PC [2022] NSWCCA 59

RH v R [2019] NSWCCA 64

Savvasv The Queen (1995) 183 CLR 1

Smith v R [2022] NSWCCA 267

Stevenson v R [2022] NSWCCA 133

Texts Cited:

Nil

Category:Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
RM (offender)
Representation:

Counsel:
Mr C Reynolds for the ODPP
Ms K Hogan for the offender

Solicitors:
ODPP
AJA Associates for the offender
File Number(s): 2020/00213495
2020/00251096
Publication restriction: Non-publication order regarding the identity of the offender and the victim

ex tempore sentencing remarks

  1. On 27 March 2023, following a trial presided over by myself in Parramatta, a jury found the offender guilty of a series of sexual offences committed against his daughter, who I will refer to as the victim or, where necessary, as KM. The offences, the maximum penalties and applicable standard non-parole periods are as follows:

Count on indictment

Description of offence

Maximum penalty

SNPP

1

Between 1 June 2011 and 31 December 2011 at Glendenning in New South Wales, assaulted KM, a person under the age of 16 years (namely 9 years) and at the time of the assault, committed an act of indecency towards her, contrary to s 61M(2) of the Crimes Act 1900 (NSW)

10 years’ imprisonment

8 years

Imprisonment

2

Between 17 January 2012 and 31 March 2012, at Glendenning in the State of New South Wales, assaulted KM, a person under the age of 16 years (namely 10 years) and at the time of the assault, committed an act of indecency towards her, contrary to s 61M(2) of the Crimes Act 1900 (NSW).

10 years’ imprisonment

8 years

Imprisonment

3

Between 17 January 2013 and 21 July 2014, at Glendenning in the State of New South Wales, assaulted KM, a person then under the age of 16 years, namely 11 or 12 years, and at the time of the assault, committed an act of indecency towards her, contrary to s 61M(2) of the Crimes Act 1900 (NSW).

10 years’ imprisonment

8 years

Imprisonment

4

Between 21 July 2014 and 31 December 2014 at Glendenning in the State of New South Wales, had sexual intercourse with KM, without her consent and knowing that she was not consenting, in circumstances of aggravation, namely, KM was under the age of 16 years, namely 12 years, contrary to s 61J(1) of the Crimes Act 1900 (NSW).

20 years’

Imprisonment

10 years’

Imprisonment

5

Between 17 January 2015 and 31 December 2015, at Glendenning in the State of New South Wales, had sexual intercourse with KM, a person above the age of 10 years and under the age of 14 years, namely 13 years, in circumstances of aggravation, namely that KM was under his authority, contrary to s 66C(2) of the Crimes Act 1900 (NSW).

20 years’ imprisonment

N/A

6

Between 17 January 2015 and 16 January 2017 at Glendenning in the state of New South Wales, had sexual intercourse with KM, a person above the age of 10 years and under the age of 16 years, namely 13 or 14 years, in circumstances of aggravation, namely KM was under his authority, contrary to s 66C(4) of the Crimes Act 1900 (NSW).

12 years’ imprisonment

N/A

7

Between 17 January 2016 and 31 December 2016, at Glendenning in the State of New South Wales, had sexual intercourse with KM, a person above the age of 14 years and under the age of 16 years, namely 14 years, in circumstances of aggravation, namely, KM was under his authority, contrary to s 66C(4) of the Crimes Act 1900 (NSW).

12 years’ imprisonment

N/A

8

Between 17 January 2016 and 31 December 2016, at Glendenning in the State of New South Wales, assaulted KM, a person then under the age of 16 years, namely 14 years, and at the time of the assault, committed an act of indecency towards her, contrary to s 61M(2) of the Crimes Act 1900 (NSW)

10 years’ imprisonment

8 years

Imprisonment

9

Between 17 January 2017 and 31 December 2017 at Glendenning in the State of New South Wales, assaulted KM, a person under the age of 16 years, namely 15 years and, at the time of the assault, committed an act of indecency towards her, contrary to s 61M(2) of the Crimes Act 1900 (NSW).

10 years’ imprisonment

8 years

Imprisonment

10

On 19 July 2020 at Glendenning in the State of New South Wales, sexually touched KM without her consent and knowing she was not consenting contrary to s 61KC(a) of the Crimes Act 1900 (NSW).

5 years’ imprisonment

N/A

11

On 19 July 2020 at Glendenning in the State of New South Wales, intentionally carried out a sexual act towards KM without her consent and knowing that she was not consenting, contrary to s 61KE(a) of the Crimes Act 1900 (NSW).

18 months’ imprisonment

N/A

Circumstances of offending

General approach to fact finding after jury verdict

  1. In relation to the approach of a sentencing judge to fact-finding after a jury has rendered a guilty verdict, in Savvas v The Queen (1995) 183 CLR 1 at 8, the plurality referred to the principle that “a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury’s verdict”. In Cheung v The Queen (2001) 209 CLR 1 the High Court (in the joint judgment) summarised the law at [11]-[14]. I have had regard to those principles in finding the following facts. In particular, the jury’s verdicts necessarily cemented their acceptance of the victim’s credibility and reliability, certainly when it came to their account of how and in what circumstances, the offending occurred in relation to the essential elements of the offences.

  2. More generally, to the extent that the Crown relies upon disputed facts adverse to the offender, it must prove them beyond reasonable doubt. Conversely, where the offender relies upon disputed facts favourable to him, he must prove them on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ.

  3. A cursory perusal of the above table suggests that the jury emphatically accepted the credibility and reliability of the victim, KM; at least in relation to proof of the essential elements of the charges on the indictment.

  4. The Crown propounded certain facts for sentencing purposes. With some exceptions, the offender, by his Counsel’s written submissions, accepted them.

General

  1. The victim is the biological daughter of the offender. She was born on [REDACTED]. She was born with a heart condition and has had several surgeries. It was agreed at the trial that she had open heart surgery on 21 July 2014 and this was a temporal reference point for her when giving evidence of when events occurred. At all material times, the victim lived with her mother and the offender in their house at Woodley Crescent in Glendenning.

  2. There were 9 separate incidents of offending. The last of the nine incidents was on a date that was precisely pinpointed, 19 July 2020. The rest of the incidents occurred in date ranges alleged in the indictment, as identified in the table above.

Count 1

  1. After having a nightmare whilst sleeping in her own bed, the victim got into her parents’ bed, lying in between her parents. The offender pulled her closer towards him and felt her back against his stomach. He used his hand to rub her chest area, up and down, for 5 minutes over her pyjamas, then rubbed her groin, around the thigh, starting on the inside then moving to the outside; also for 5 minutes.

  2. The offender’s hand moved inside her pyjamas rubbing his hand up and down her vagina. The victim was 9 years old when this incident occurred.

Count 2

  1. After a family dinner, the victim indicated that she was going to take a shower. She said that usually her mother assisted her to wash her hair but on this occasion, the offender insisted that he do it. After stepping into the bathroom, the offender, who had gotten undressed, began to wash her hair for around 15 minutes, standing behind her and she said she felt the offender’s hard penis pressing against her lower back for around 5 minutes. She recalled feeling this during the shower and a bit after the offender was washing her hair. She recalled him saying that he had finished washing her hair. She got out and dried herself whilst he continued in the shower. This incident occurred after she had just turned 10 years old.

Count 3

  1. The victim got into her parents’ bed at night-time. She was again in the middle of the bed, lying between her parents. The offender grabbed her hand and moved it inside his underwear before moving her hand up and down his erect penis for a number of minutes. She recalled that her mother was asleep; and recalled hearing that she was snoring.

  2. This incident occurred before the victim had heart surgery. She was about 11 or 12 years of age, before she had heart surgery (in July 2014).

Count 4

  1. The victim was lying on her bed in her bedroom. She had complained during the day that her feet were sore. The offender came into her bedroom whilst it was quite late and offered her a foot massage, which the victim consented to and which the offender administered. He eventually moved his hands above her knees and massaged her thighs. Then he pulled her pyjama pants down. The victim was not wearing underwear. The offender inserted his tongue in her vagina, licking it and moving it up and down and side to side for a period of about 10 to 15 minutes.

  2. The victim felt paralysed for a time, but after a while, she tried to close her legs. The victim did not consent to sexual intercourse.

  3. As the victim tried to close her legs, the offender used his hands to keep her legs open, and tried to push her legs away; whilst keeping his head around the area of her vagina. The victim sat on her bed crying. Contrary to the offender’s submission, I find beyond reasonable doubt that he actually knew that the victim did not consent to sexual intercourse.

  4. This incident occurred in August, after she had heart surgery. It is an agreed fact that she had open heart surgery in July 2014, when she was 12 years and 8 months of age.

Count 5

  1. At about 7:30pm one night, the victim was in the shower and indicated that she needed help to wash her hair. The offender came into the bathroom, not wearing anything. The offender entered into the shower recess and she saw that his penis was erect. The offender grabbed her head, placing it near his penis. He had one hand on his penis and the other hand on her head. He made her put her mouth around his penis and moved her head with his hand so that it went up and down on his penis. This lasted for 5 minutes, before she walked from the shower, picked up her towel, got dressed and left. There was no evidence that the offender ejaculated. I accept the victim’s evidence that he did, however say “sorry” to the victim, in what the victim interpreted as a ‘joking’ tone.

  2. The victim was 13 years of age when this sexual activity occurred.

  3. Conformably with the jury’s verdict the offending occurred in the aggravating circumstance that the victim was under the offender’s authority.

Count 6

  1. When in her bedroom at night-time, the offender came in. Her feet felt sore and the offender offered to massage them. After massaging her feet and calves, the offender took his pants off and imposed himself on top of the victim, with a blanket covering both. He grabbed his penis and put it near her vagina. He moved his hips in a sideway motion. His penis felt hard to her. She felt his penis on her clitoris and recalled that it was inside and outside her labia majora. She recalled him breathing heavily after he had put his penis near towards her vagina, but the Crown did not suggest that the offender ejaculated.

  2. The victim was 13 or could have been 14 at this time.

  3. Conformably with the jury’s verdict the offending occurred in the aggravating circumstance that the victim was under the offender’s authority.

Count 7

  1. One evening, when the victim was in her bedroom, the offender had come in. This would have been after 7pm that night. After commencing to give her another foot massage, he took her pyjamas off and licked her vagina, whilst she was pretending to be asleep; hoping it would stop. The victim did not recall how long he had done so.

  2. The victim was 14 on this occasion; recalling that around this time she had been cutting herself; and for which she was receiving treatment from ‘Headspace’ (which, the evidence suggested, occurred between 28 January 2016 and August 2016). It is beside the point as to why she was self-harming.

  3. Conformably with the jury’s verdict the offending occurred in the aggravating circumstance that the victim was under the offender’s authority.

Count 8

  1. The conduct the subject of this charge emerged essentially from the same incident giving rise to charge 7. After the offender had licked her vagina, he grabbed his penis and rubbed it against her vagina, and thrusted his penis near her vagina; although it did not penetrate her vagina. The victim estimated that the thrusting had occurred for between 10 and 15 minutes, before she heard him grunt, pull up his pants and go to the bathroom.

Count 9

  1. The victim was in the shower. The offender came into the bathroom. After she had finished in the shower, she got out. Whilst she remained in the bathroom, naked, the offender had ‘squeezed’ her ‘butt’. She could not recall whether he was clothed. She recalled him saying ‘sorry’, and said that she felt uncomfortable’ as she grabbed her towel and dried off.

  2. The victim was 15 at the time of this conduct.

Count 10

  1. The victim was lying in her bedroom, trying to get to sleep; when the offender entered inside. She was, coincidentally, experiencing a nightmare involving the offender sexually abusing her. She sent messages to her boyfriend, William Bremner, about the nightmare.

  2. The offender came up; standing next to the bedside table and he pulled down his pants. He tried to feel around her breasts with one hand; but the victim had crossed her hands over her breasts, so he was only touching her hand, or hands.

  3. The victim did not consent to the offender touching her in her breast area. That was why she covered her breasts with her hands. There was no discussion with the offender about her touching her hands covering her breasts. The victim gave some evidence of some resistance, even though she was feigning being asleep. I find beyond reasonable doubt that the offender knew that she was not consenting to the touching.

Count 11

  1. The conduct the subject of this count arose as part of the same incident giving rise to count 10. The offender masturbated himself with his other hand (the victim estimated) for a couple of minutes. The victim estimated that the offender was masturbating himself about 20 cm away from her face. At trial, the Crown claimed that the offender ejaculated on some blankets on her bed and the horizontal bedframe. Expert evidence later indicated that the offender’s DNA profile was in the semen on those areas of the bed. Although this evidence was challenged at trial, having regard to the evidence as a whole, I am satisfied beyond reasonable doubt that the offender ejaculated and that the semen stains were his. He then left the room.

  2. The victim then sent messages to her boyfriend, Mr Bremner, who recalled that the victim was crying.

  3. The victim did not consent to the offender masturbating himself towards her. In the circumstances, where it has not been shown that the offender actually knew the victim was awake, he must have known that she did not consent to his masturbating towards her.

Assessment of the objective seriousness of the offending

  1. As a preliminary point, I start from the position that it is unnecessary to ascribe a particular point on the scale of offending, with particular reference to where it falls in relation to a mid-range notwithstanding that most of the offences carry a standard non-parole period: DH v R [2022] NSWCCA 200. Nevertheless, both parties adopted that nomenclature when submitting where the offences fell.

Aggravated indecent assault offences

  1. When sentencing for aggravated indecent assault offences under s 61M(2) Crimes Act 1900, it is necessary to have regard to the physical conduct involved in the offence with skin-on-skin contact with the genital region being of particular seriousness. This is especially so where, as here, the offence involves skin-on-skin contact with the genital region of a child: Stevenson v R [2022] NSWCCA 133 (‘Stevenson’) at [113].

  2. Some measure of harm is presumed in the structure of provisions such as ss 61M(2), where the absence of consent is not an element of the offence. The degree of harm suffered by the victim is commonly an important integer in assessing the objective gravity of an offence against s 61M(2) of the Crimes Act: Smith v R [2022] NSWCCA 267 at [53].

Consideration of the objective seriousness of counts 1-3 (incl), 8 & 9

  1. Count 1 was a serious instance of offending. It involved the touching of the unclothed genital region of a very young child (relative to the age bracket for the offence), but also other areas of her body (her chest and thighs). The age difference between the offender and the victim was particularly pronounced (relative to other offences). It was preceded by other accompanying acts, as part of a course of conduct. It was not fleeting but occurred over a not insignificant period. The conduct was opportunistic, but was also brazen having regard to the presence in the proximity of the victim’s mother. I accept the Crown’s submission that it fell below the mid-range of offending for an offence of this kind.

  2. Count 2 was also serious. It was again opportunistic. It occurred for a period of 5 minutes or so. The pressing of an erect penis against the back of his young daughter denoted the offender’s perverse sexual attraction to his daughter, but the victim was not required to proactively do. The victim was very young (10 years old) for the purpose of the age bracket. She was innocently having a shower. There was direct skin to skin contact. I accept the Crown’s submission that the offending fell within the mid-range for an offence of this kind: it was a significant act of indecency.

  3. Count 3 was not dissimilar similar in nature to count 1; albeit that the victim by this age was slightly older and the offending involved the offender’s manipulation of his daughter to masturbate himself. There was direct skin to skin contact. I accept that it occurred over a period of minutes. The victim was aged or 11 or 12. I regard this offending as falling within the mid-range.

  4. Count 8 was a very serious instance of offending of this kind, which was of a kind which veered towards, though stopping short of, sexual intercourse, because of the lack of penetration of the victim’s genitalia: it involved skin to skin, or genital to genital, contact between his penis and the victim’s vagina. I accept the Crown’s submission that it occurred over a period of 10 to 15 minutes. The victim was older than she was for the earlier counts 1-3 (incl). I accept the Crown’s submission that for the index offence it was above the mid-range.

  1. Count 9 was a much less serious form of offending. The touching, in the form of the squeeze, was fleeting. Even though there was skin-to-skin contact and the victim was naked at the time, the victim did not mention any pain arising, or harm (such as bruising) from the incident. In view of earlier offending, the conduct was not completely opportunistic but involved some level of pre-meditation. Relative to other counts for this offence, the victim was older. I find that the offending fell at the lowest end of the range.

Consideration of seriousness of aggravated sexual intercourse offences

  1. Of the counts relevant to aggravated sexual intercourse, only count 4 featured the absence of consent, and the offender’s awareness of that absence of consent, as essential elements.

  2. Save for count 4, there was no evidence of lack of consent or otherwise by the victim to the acts of sexual intercourse for counts 5-7 (incl); manifested, for example, by physical resistance or words to the offender. This does not assist the offender since, as Basten JA explained In R v Nelson [2016] NSWCCA 130, at [16]-[27], the rationale for the lack of consent not being an element of the offences under ss 66C(2) and 66C(4) is that:

“..persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour.

  1. Counts 4 and 5, respectively, featured cunnilingus and fellatio. Count 6 involved penile-vaginal intercourse and count 7 was another episode of cunnilingus. I acknowledge the force of the view that there is no hierarchy in the offending dependent upon the nature of the sexual intercourse; although putting the matter very generally, it might be thought non-consensual fellatio might be less serious in nature than non-consensual penile-vaginal intercourse, especially where the latter form of sex was unprotected:  R v AJP (2004) 150 A Crim R 575 at [23]–[25]. As I have noted, though, only for count 4 was the absence of consent, and the offender’s knowledge of that circumstance, elements of the offending.

  2. With respect to count 4, it does not involve double counting, in connection with count 4, to say that for a child, the age of 12 is younger than 16 and therefore more objectively serious than if the sexual intercourse was with a child closer in age to 16, but she was not in the uppermost range. There was evidence at trial to indicate that the offender had periodically massaged the victim’s feet. On the occasion of the conduct constituting count 4, his sexual attraction to his daughter and need for sexual gratification got the better of him. It occurred over a period of 10 to 15 minutes. It was not fleeting. Unlike later offences shortly to be considered, I find that the circumstances underlying this offending were opportunistic, with little premeditation. I accept the Crown’s submission that the offending fell below the mid-range of offending for this offence, though not in the low range.

  3. For count 5, it is to be noted that this was a subsequent offence (relative to count 2) involving sexual abuse in the shower. In my view, it cannot be said that the offending was purely opportunistic, that is to say, occurring without some premeditation. Although it was not substantial, force was exerted upon the victim’s head by the offender as he forced the victim to fellate upon him. The offending went on for 5 minutes. I agree with the Crown that sentencing for this offence proceeds on the premise that the victim was 13 years of age, which was towards the uppermost point of the age range for the offence. I accept the offending fell within the mid-range of offending.

  4. For count 6, it is to be noted that this was another subsequent offence (relative to count 4) having its provenance in an innocent massage being administered by the offender. But as I reasoned with respect to count 5, the fact that the sexual misconduct grew out of similar circumstances to another offence earlier in time indicates that there was a level of premeditation.

  5. The offender argued before the jury that his conduct relating to count 6 did not qualify for sexual intercourse because of the absence of penetration. By its verdict, the jury rejected that argument. As explained, other things being equal, generally penile-vaginal intercourse is a very serious form of sexual intercourse; and especially in circumstances where the sex is unprotected. The duration of the sexual intercourse was unknown but, as I have already said, that is not material. The victim was 13 or 14 years of age, placing her at the uppermost end of the age range for this offence. There was a high degree of genital to genital contract even if there was a slight degree of penetration. I find that the offending fell below the mid-range but was not in the low end of the range of objective seriousness.

  6. The conduct for count 7 was relevantly similar to that of count 4; only that the Crown did not seek (or need) to prove whether the conduct occurred in circumstances involving the absence of consent and the offender’s knowledge of that matter. As I have reasoned with respect to some other counts, the circumstance that the offending occurred after earlier offending which had its provenance in a foot massage indicates that the offending cannot be considered to be purely opportunistic, but rather involved some pre-meditation. The victim’s age (14) was at the lower end of the age bracket for this particular offence. There was no indication as to how long the offending occurred, but that is not very material. The offending fell below the mid-range.

The touching offence

  1. At trial, the offender argued before the jury that the circumstance that the Crown’s case in relation to count 10, at its highest, was that the offender touched the victim’s hand, covering her breast, meant that the Crown could not prove the element of intentional touching being ‘sexual’. The jury rejected the argument.

  2. That is not to say, however, that the circumstance that the touching was on the hand, rather than on the victim’s breast (or breasts) or her genitalia, was irrelevant to weighing the objective gravity. It was. Nevertheless, the offence provision calls for a holistic assessment of all of the circumstances. Relevantly, this included, as a matter of particular significance, that at or about the same time, the offender commenced, or continued, to masturbate himself. The offender’s object was to touch the victim’s breasts in conjunction with masturbating himself. Touching the victim’s hands was essentially part of the same episode in which the offender obtained sexual stimulation and gratification. The victim was, by now, an adult (18 years and 6 months) On balance, I regard the offending for this offence as being below the mid-range but not at the lower end.

Sexual act towards the victim

  1. Section 61KE(a) of the Crimes Act, being the offence for count 11, is a relatively recent offence and was authoritatively construed recently by the Court of Criminal Appeal in DPP (NSW) v Presnell [2022] NSWCCA 146. I relied upon this authority when directing the jury on some of the elements, especially whether a sexual act was ‘towards’ the victim. In that case, especially in the decision of Dhanji J, reference was made to interesting questions arising whether a sexual act can be “towards” someone who is unaware of it. In this case, the victim was aware of offender masturbating towards her and, indeed, was in very close physical proximity to the offender, and specifically close to her body and face. But, although the jury’s verdict connotes its acceptance that the offender knew she did not consent to the sexual act being towards her; it was not essential to the Crown case to establish how that was so. In my view, this is a case where, on the balance of probabilities, the offender believed that the victim was asleep. He was using her, and his physical proximity to her, to gratify himself by engaging in a sexual act. This, in my opinion, and uninstructed by authority, is objectively less serious than if he believed that she was awake, and was actually aware of the sexual act being perpetrated towards her and involved the situation of his thereby effectively forcing the victim to endure the spectacle of his performing the sexual act (upon himself) towards her. That said, the offender must be taken to have known that there was an ever-present risk that the inherent nature of the sexual act and other potential circumstances (for example, movements in or outside of her bedroom, or nightmares) that she might have awoken during the sexual act. I find that the offending fell within the mid-range of offending.

Circumstances of aggravation

Offending in victim’s home

  1. All of the offending occurred in the victim’s home (s 21A(2)(eb) Crime (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’)). It matters not, for this purpose, that it was also the offender’s home. The offender accepts that this factor is engaged for each count.

Harm to the victim?

  1. By s 25AA(3) of the CSP Act, a sentencing judge is required to have regard to the trauma of sexual abuse on children as understood at the time of sentencing. I so have regard to the trauma of sexual abuse in accordance with that provision.

  2. In R v PC [2022] NSWCCA 59, Fagan J (Davies J and Bellew J agreeing) at [44] observed that it can readily be inferred (beyond reasonable doubt) that a victim of child sexual abuse perpetrated by a family member will carry psychological scars of the experience well into adulthood. His Honour previously noted that harm to the victim (presumably psychological) is relevant to consideration to the objective gravity of the offending, so I am mindful of the need to avoid double counting.

  3. Before that decision, in Culbert v R [2021] NSWCCA 38 Adamson J (with whom R A Hulme J agreed) wrote at [115]:

“It has become a matter of common experience in this Court that the adverse psychological effects of sexual abuse on children tend to be long-lasting. …….. The typical effects, as appear in judgments of this Court, include difficulties with intimate relationships, self-loathing, guilt, self-harm and a tendency to self-medicate.”

  1. A lengthy victim impact statement was relied upon by the Crown and was read in Court by the victim. In it, the victim pithily stated that she had not “been living” but rather “trying to survive”. She referred to how difficult it was to be disbelieved by certain family members and her lamentation how her childhood, her innocence and her virginity had been “stolen”. It is true that her evidence did not establish the actual perceptions of other family members, but it was patently obvious during the trial and also the sentencing hearing (in which the offender and supporters of his manifestly indicated their displeasure when hearing the victim read her Victim Impact Statement), that there is a chasm between herself and other family members; especially on the offender’s side. More positively, she did pay tribute to some family members who were supportive of her. She spoke of the influences of her time at TAFE and her leaving her family home. The depths of her ill-feeling to the offender were such that she used the forum of the provision of a Victim Impact Statement to declare that she had changed her name.

  2. Nevertheless, for the aggravating factor in s 21A(2)(g) to be engaged, the harm to the victim has to be extraordinary or beyond that which would ordinarily result from such serious offending (GL v R [2022] NSWCCA 202 at [64]). The Crown did not suggest, and I do not find, that it did.

The offending occurred involving an abuse of authority

  1. There was some complexity as to the application of this particular aggravating factor.

  2. It is important to distinguish the circumstance of aggravation embedded, as an element of the offence, in each of counts 4, 5, 6 and 7. For count 4, the aggravating circumstance was the victim’s age, being under 16 and actually 12. For counts 5, 6 & 7, the aggravating circumstance was that the victim was under the offender’s authority. The Crown correctly eschewed the application of the ‘abuse of authority’ factor in relation to counts 5 – 7 (incl).

  3. As to the other counts, the Crown’s position was:

  • For counts 1 – 3 (incl) and 8-9 (incl), this factor could be engaged. This was because the offence under 61M(2) in respect to which the offender is guilty, on these counts, was (by reference to maximum penalty) more serious than another offence of indecent assault (s 61M(1)) which carried as an element that the offending occurred under a person’s authority. Accordingly, there was no De Simoni issue.

  • For count 4, the Crown did not submit that this factor was engaged. As indicated, for this count, the Crown could, as an alternative to the ‘under age’ element of aggravation, have charged the offender with the aggravating circumstance of the offending occurring under his authority but did not.

  • For counts 10 and 11, the Crown did not submit that this factor could be engaged. This because of De Simoni. There were more serious offences (s 61KD(1) and s 61KF, respectively) that carried the matter of the offending being under a person’s authority as an element for the aggravated form of the respective offences.

  1. Initially, in her oral argument in chief, Counsel for the offender submitted that De Simoni principle precluded the Court from finding this aggravating factor for all of the other counts (apart from counts 5-7 (incl)), but when given the opportunity after hearing Mr Crown’s address, she did not make any further submission on the point.

  2. I accept the Crown’s submissions. It follows that this aggravating factor of the offending being an abuse of the offender’s authority is engaged in relation to counts 1-3 (incl) and 8-9(incl) but not otherwise.

Abuse of position of trust

  1. The Crown submitted that this aggravating factor was engaged for all counts.

  2. For the counts 3-5 (incl), where the aspect of the offending occurring under the offender’s authority was already an element of the offence, this feature is conceptually distinct from the factor of a breach of trust and can be treated as an aggravating factor. However, I acknowledge that care needs to be taken in in ascribing materially more weight to this additional aggravating factor when assessing counts 3-5 (incl) in order to avoid double counting (PC v R [2022] NSWCCA 107 at [73]-[77]). In my opinion, in circumstances where the same facts relied upon by the Crown to prove the element of the offence for counts 5-7 are relied upon to establish the aggravating factor of a breach of trust for those counts, this circumstance of aggravation, although it may be engaged, does not significantly add to the seriousness of the offending.

  3. As to the remainder of the counts, I find that the aggravating factor of breach of trust is engaged. The evidence at trial, itself adduced by the offender, pointed to a very close emotional connection between father and daughter, with significant emphasis placed by the offender upon the types of activities that devoted fathers typically engage in with their daughters, including car trips, supplying treats and participation in leisure activities. At trial, the victim spoke eloquently of her mixed feelings towards her father; distinguishing her love for him, but perplexed by the offences perpetrated against her.

Vulnerability

  1. In RH v R [2019] NSWCCA 64, Schmidt J (Hoeben CJ at CL and Adamson J - as her Honour then was - agreeing) at [48]-[49] found that serial sexual offences committed by a mother against her daughter engaged the aggravating circumstance of the victim’s being vulnerable and, further, treated that circumstance as aggravating was distinct from other aggravating factors (such as abuse of position of authority of breach of trust, offending in the family home).

  2. Counsel for the offender cited certain distinguishing circumstances in RH relating to the conduct of the offender in that case which she argued did not apply here. I did not find the distinction persuasive. But whilst acknowledging the potential for this aggravating factor to be engaged, I agree with the Crown that on the facts, the feature of the victim’s vulnerability is effectively subsumed, at least, by the circumstances that the offending occurred in the victim’s home and in circumstances involving a breach of trust and to give the aggravating factor of the victim’s vulnerability further weight would be inappropriate.

The offender’s subjective circumstances

Age and background

  1. The offending occurred when the offender was aged between 41 and 50.

  2. The offender’s background is to some extent referred to in the Sentencing Assessment Report (SAR). Attached to the SAR was a structured case note of a consultation conducted, specifically, to assist in the prediction of sexual recidivism, but also to comment on his treatment needs, including access to Sex Offender programs within Correctives. This case note was authored by Luke Bryant on 19 May 2023.

  3. The offender completed schooling up to the age of year 10. He has had long-term employment as a forklift driver.

  4. He denied any history of substance abuse. He reported suffering from a depressive disorder for 10 years. This was apparently sourced in issues with his mother-in-law who, the Court was informed, had moved into the offender’s family home with her husband in the lead up to the offending. He had been managing this with counselling (although not medication).

  5. The offender met his wife when he was 16 years old. Although separated from her now since his arrest, he was positive about his marriage.

Antecedents & prior good character

  1. The offender had no prior record of criminal convictions.

  2. The offender received a ‘good character’ direction in my summing up to the jury; although that was based upon the absence of prior convictions and evidence from his brother and sister-in-law of his unremarkable dealings with teenage children. It was unrelated to good works or contributions performed for the community.

  3. Nevertheless, as the Crown correctly acknowledged, this is not a case where good character or absence of prior convictions assisted the offender to commit the offences so as to exclude those matters as mitigating circumstances conformably with s 21A(5A) of the CSP Act (see Bhatia v R [2023] NSWCCA 12). By reason of his relationship to the victim, the offender had essentially unfettered access to her.

  4. The offender relies upon character references from:

  1. His niece, Cristal Wrightman;

  2. His mother, LM;

  3. A self-described ‘close family friend’, Rebecca Marks-Rylewski;

  4. A friend, Wayne Stoneman;

  5. His older brother, PM.

  1. Those references have been considered. Particularly pertinent was the testimonial of Cristal Wrightman, who said that she herself was the object of child abuse herself (reportedly by her father) when she was aged between 5 to 9 years old and she was comforted by the offender and aside from the love he gave to her, provided other tangible benefits; including, amongst other things, loving attention to her own children. It is troubling, however, that Ms Wrigthman appeared to cavil with the jury’s verdicts.

  2. Ms Marks-Rylewski also observed that aside from her own long association (throughout her 36 years) with him, but there was also the association of her own children with the offender.

  3. The Crown contends that the Court could not find that the offender was of prior good character, in light of tendency evidence given at the trial by Ms Ludwig; although the Crown acknowledged that the Court could give weight to the offender’s lack of antecedents.

  1. In my view the first part of that submission should be rejected. It was unnecessary for the jury to determine beyond reasonable doubt whether Ms Ludwig’s account of sexual abuse being perpetrated against her in 1996 or 1997 had occurred, when she was 11 or 12 years of age. It is also unnecessary for the sentencing court to determine that this conduct occurred and at any rate, I am not satisfied beyond reasonable doubt that this was so. Because of the way in which the allegation was raised at trial (as an uncharged act), the ‘tendency witness’ was giving evidence of an event occurring in excess of 25 years before, without evidence of subsequent complaint or corroborating evidence. Whilst the evidence would likely have affected the jury’s consideration of the offender’s guilt on the counts, it was to be weighed (along with the victim’s evidence on all of the charges) only on the balance of probabilities.

  2. The offender’s general good character and the absence of convictions therefore yields some leniency to him in the sentencing exercise. There is, however, force in the Crown’s submission that in view of the course of offending against the victim, over a period of 9 years, the weight to be ascribed, particularly, to prior good character, is limited.

Contrition and remorse

  1. The Blacktown Community Corrections Officer noted that the offender continued to categorically deny offending; and asserted to her that the victim ‘fabricated the whole story’. Unsurprisingly, the corrections officer opined that he lacked insight into his offending or its impact upon the victim. The lack of contrition was manifest during the sentencing hearing when the offender visibly bristled during the victim’s reading of her Victim Impact Statement.

  2. It does not aggravate the offending that the offender mounted a vigorous defence at trial, including strong attacks on the credibility and reliability, even current mental health condition, of the victim; or, for that matter, maintains his innocence. Counsel for the offender has informed the Court that he has filed a notice of intention to appeal. His rights in this respect may be respected. But the exercise of those rights, and his position, does mean that the offender has deprived himself of the mitigating benefits of such things as contrition or remorse (or an early plea). Those mitigating benefits include a finding that specific deterrence should be given less force or that there are good prospects of rehabilitation.

Prospects of rehabilitation and likelihood of re-offending

  1. As Counsel for the offender submitted, the evidence indicated that the offender was gainfully employed throughout the period of offending. It was apparent from the evidence led in his defence that he also was supported by his brother and sister in law giving evidence and the presence of his mother.

  2. The psychologist noted that the offender reported to him that upon his release, he intends to reside with his brother and sister-in-law (who gave evidence for him at the trial), and his mother. The community corrections officer noted that the offender’s brother remains supportive of him. On the other hand, since his arrest, he became separated from his wife who no longer speaks to him. It was not apparent to the Court that his wife appeared in Court today for the sentencing hearing with other relatives or supporters of the offender.

  3. The offender told the psychologist that he has been given the option of returning to his employer upon his release. However, it is pertinent to note that this employer is not apparently aware of the offending.

  4. I referred earlier to the offender’s issues with depression. The offender was reported to have expressed motivation to receive treatment from a psychologist for his mental health in the future.

  5. Weighing these indications up, including the absence of remorse, or insight, I am unable to make a positive finding about prospects of rehabilitation.

  6. The Crown submitted that the Court should find that the offender has an entrenched sexual interest in female children. In oral argument, it was apparent that the Crown relied heavily upon the evidence of the tendency witness at trial to sustain this position. In the light of my finding about Ms Ludwig, the position is that I am unpersuaded, to the requisite standard, that he has a tendency to have a sexual interest in female children generally.

  7. The psychologist’s case note appended to the SAR contained a qualification: it was not a comprehensive risk assessment, but was limited by the circumstance that there was no direct contact with the offender, but was based on information available on the file. This, in turn, gave rise to another limitation flowing from the circumstance of the offender’s lack of antecedents.

  8. The risk of sexual recidivism was calculated by use of the Static-99R form of actuarial assessment. The author of the note also noted the limitation associated with this form of assessment. Be that as it may, the offender’s score on this scale placed him in the ‘Below Average’ risk. As such he would likely be rendered ineligible for community-based sex offender programs. But the community corrections officer indicated that the offender would be reassessed after he is sentenced to ascertain his eligibility and suitability for participation in a sex offender program. The psychologist referred to his being well-behaved since being held in custody.

  9. The Crown questioned the weight to be given to this evidence. Mr Crown expressed doubt whether the psychologist was aware of Ms Ludwig’s evidence. That seemed to me, with respect, to involve an element of speculation.

  10. Moreover, the community corrections officer’s views seemed to be consistent with the psychologist’s view. The officer assessed the offender as being at a low risk of re-offending, according to the LSI-R scale.

  11. On the basis of these opinions, I find that he is at a low risk of re-offending.

Instinctive synthesis

  1. I take into account the maximum penalties and relevant standard non-parole periods for the offences as legislative guideposts; whilst bearing in mind the principles from Muldrock as to the guidance given to sentencing judges by standard non-parole periods.

  2. Something should be said specifically about the aggravated indecent assault offences. About that offence, the Court of Criminal Appeal has repeatedly observed that the relationship between the maximum penalty (10 years) and the standard non-parole period (8 years) is difficult to understand; and that there is some tension arising from the curious relationship between the maximum penalty and the standard non-parole period for s 61M(2) offences. Nevertheless,the Court of Criminal Appeal has also reaffirmed that it remains the responsibility of the sentencing judge to have regard to the standard non-parole period when sentencing for offences of this type: Stevensonv R [2022] NSWCCA 133 at [116].

  3. I also take into account the considerations in s 3A of the CSP Act. To my mind the considerations of general deterrence, denunciation, retribution, holding the offender to account for his crimes and recognising the harm perpetrated upon his daughter are most salient. The offending occurred against a single victim and there was evidence at the trial that the offender dealt unremarkably with other teenage girls other than his own daughter. So community protection does not loom large. The offender had been on bail since his arrest prior to the guilty verdicts and the Court has been informed that he complied with his conditions and behaved himself. Specific deterrence is relevant, but not overtly so. Given the penalty that must inevitably be visited upon him, it is unlikely that the offender will be in a position to re-offend and so the consideration of enhancing rehabilitation is of very subsidiary significance.

  4. There is no doubt, and Counsel for the offender did not dispute, that for such serious offences, being so voluminous and over such a protracted period, that the s 5 threshold is crossed.

  5. Indicative sentences are as follows:

Count 1:   2 years imprisonment (NPP 1 year and 5 months)

Count 2:   3 years imprisonment (NPP 2 years and 1 month)

Count 3:   2 year & 6 months’ imprisonment (NPP 1 year and 9 months)

Count 4:   3 years’ & 4 months imprisonment (NPP 2 years and 4 months)

Count 5:   3 years’ & 9 months imprisonment

Count 6:   3 years’ imprisonment

Count 7:    2 years’ & 8 months’ imprisonment (NPP 1 year and 10 months)

Count 8:   3 years’ and 6 months imprisonment (NPP 2 years and 5 months)

Count 9:   6 months’ imprisonment

Count 10:   1 years’ imprisonment

Count 11:   4 months’ imprisonment

  1. I take into account the totality principle. I have noted that there were nine incidents giving rise to the eleven counts on the indictment. There should be a substantial degree of concurrency for counts 7 & 8 and counts 10 & 11, which, between them, involved two of the 9 incidents. There needs to be not insignificant partial accumulation to take into account the full range of other (7) separate or discrete incidents occurring at various stages of the victim’s childhood (and mainly at the younger ages) whilst recognising that the aggregate sentence to be imposed should reflect my assessment of the offender’s overall criminality.

Prior custody

  1. The offender has spent a period of 220 days in custody attributable to his offending. The offender’s sentence will be backdated to take into account that period.

Special circumstances

  1. The Crown appeared to resist a finding of special circumstances. In particular, the Crown cited that there was no direct proof that his personal circumstances were such as to make his incarceration relatively more onerous for him than the general prison population. It is true that there is no evidence directly from the offender about these matters, but that does not mean that there is an absence of other evidence from which the inference that the offender contends arises is available. Amongst that evidence is a reference to some depression and an attempt at self-harm. Although that evidence is slight, it still has to be reckoned with.

  2. Having regard to his being a first-time offender, to his prior good character and the circumstances that because of the nature of his offending, his depression manifested in a reference in the custodial history to self-harm, he is likely to find conditions of imprisonment more onerous than the general prison population, I find that special circumstances exist which warrant some variation of the statutory ratio.

Sentence

  1. Mr RM, please stand.

  2. You are convicted of counts 1-11 (incl) on the indictment.

  3. I sentence you to a term of 12 years’ imprisonment commencing 3 January 2023 and expiring on 2 January 2035; with a non-parole period of 8 years and 5 months expiring on 2 June 2031 after which you will be eligible for release on parole.

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Decision last updated: 11 August 2023

Most Recent Citation
Cases Citing This Decision

1

R v RM (No.7) [2024] NSWDC 577
Cases Cited

15

Statutory Material Cited

2

Bhatia v R [2023] NSWCCA 12
Cheung v The Queen [2001] HCA 67
Cheung v The Queen [2001] HCA 67