R v SA

[2024] NSWDC 553

District Court

New South Wales

Medium Neutral Citation:	R v SA [2024] NSWDC 553
Hearing dates:	1 November 2024
Decision date:	15 November 2024
Jurisdiction:	Criminal
Before:	Noman SC DCJ
Decision:	Offender convicted. Aggregate sentence imposed: 4 years and 4 months imprisonment with a non-parole period of 3 years to date from 10 March 2023. Eligible for parole 9 March 2026.
Catchwords:	SENTENCING — Incest — sexually touch child under special care —Penalties — Imprisonment
Legislation Cited:	ss.73A(1)(a) and 78A(1) Crimes Act 1900 (NSW)
Category:	Sentence
Parties:	Rex; SA
Representation:	Counsel: Crown: A Chandra Defence: J Leaver Solicitors: Crown: J Toddhunter Defence: J Lawson
File Number(s):	2023/83307
Publication restriction:	Statutory non-publication order in relation to the name of the complainant and anything that may identify them

JUDGMENT

1. The victim was aged 16 and 10 months. She had been raised for 2 ½ years by her parents, then in foster care for a brief period and then raised by her grandmother. She had limited involvement with her biological parents although her father would attend school sporting events whilst she was in primary school.

2. When she turned 16, she experienced a breakdown in her relationship with her grandmother causing her to leave home and effectively become homeless. She stayed with different friends. She contacted her father, who resided as a paid carer with her grand-aunt, and asked if she could stay at their house.

3. The victim’s father purchased a train ticket to assist her to travel to his home. She arrived in late January or early February 2023. Her father’s home had two bedrooms. Her father gave up his bedroom and slept on the lounge to provide a bedroom for the victim.

4. On about 8 March 2023 the victim’s father bought her a hard drive and game.

5. On the evening of 9 March 2023, the victim was lying on the bed and using the X-box. Her father was seated at a computer desk and watching TV.

6. At about 1am the victim’s grand-aunt went to bed.

7. Although the victim and her father were in the same room, at 2.54am he commenced a Snapchat conversation with the victim which informs the offending for sentence. From this point he ceased acting as a father and became an offender and I shall refer to him by this descriptor.

8. I propose to recite the full conversation as the terms of the narrative expose the manipulation and persuasion he exercised to exhort his child to participate in sexual activity with him:

9. 2:54am

10. Offender:   Do you judge me on what I say or what I do??" The following Snapchat conversation ensued:

11. Victim:    No, why?

12. Offender:   Just wondering

13. Victim:    Ok?

14. 3:02am

15. Offender:    I dnt know how to say this.

16. And I dnt know how you ganna react.

17. Victim:    Just say it

18. 3:06am

19. Offender:    Instead of paying me the money back for the hard drive and the game. What if we help each other. I can teach you stuff that you dnt know or get better at.

20. What Im trying to say and I dnt know how to say it but what if we have sex? No one will know it will just be between me and you and like I said we can help each other out?? Plz plz dnt freak out or judge me or anything. I will respect whatever you say. Plz keep this between us just you and me.

21. 3:08am

22. Victim:   Can I think about this? And when were you planning on doing this?

23. 3:11am

24. Offender:   Of course you can. And it just came to me just before I msg you. And if you say yes before we go to sleep. Dnt worry I would use protection. Ill be like a teacher if that mekes sense and we wouldn't do anything you dnt wanne do. But you can learn stuff. Pls dnt judge me or thnk any less of me plz

25. 3:30am

26. Victim:    I wont judge or think less of you ok. I'm still thinking this thru. But if I decide to. I will NOT be doing a blowjob that shit is yuck. But I'm still thinking. Is that ok?

27. 3:34am

28. Offender:   That's ok. And why do you say its yuk for ?? it's the same as lickimg pussy. But if you dnt wanna do that. That is fine. Would like you to experience everything. If there is something you wanna try we can. Not ganna force you to do anything you dnt want to but would like you to try it once though at least. Keep thinking. And that you for not judging me or thinking any less of me. Just thought we could help each other out. It can be a 1 time thing or more if you want to. Choice is yours.

29. 3:36am

30. Victim:   I've done a blowjob before and hated it. So that wont happen sorry

31. Offender:    That’s ok. And ill be gentle.

32. The two exchanged a further 35 messages over the next hour (until 4:28am), during which the offender stated that he 'would use protection', he had ‘lube’, ‘you will learn stuff’ and further comments about trying a 'blow job'.

33. 5:27am

34. Victim:    'I have a answer”.

35. 5:35am

36. Offender:   Ok. What is your answer??

37. Victim:   Yes.

38. Offender:   Ok. You still 100% sure about no blow job ? Or do you wanna give it a go and see how you go? We can always stop doing the blow job if you dnt like it. Up to you

39. Victim:   I don't want to do a blow job sorry.

40. Offender:   Dnt be sorry its ok

41. Victim:   Ok

42. Offender:   Is there anything you wanne try or do ??

43. Victim:   idk

44. The offender finished a cigarette and moved to his bedside table, where he removed lubricant and a packet of condoms. The offender removed the doona, which was on top of the victim. He removed his t-shirt, shorts and underpants, before putting a condom over his penis and laying on the bed next to the victim. The victim was wearing shorts, singlet top, bra and underpants.

45. Form 1 (Sequence 4) - Sexual touching (touching victim’s breasts)

46. Form 1 (Sequence 5) - Sexual touching (kissing victim and putting tongue in her mouth)

47. The offender started touching the victim on the breasts using one of his hands. The offender said, “You have a nice pair of tits”.

48. The offender moved his hand up to the victim’s face and kissed her; he put his tongue in her mouth as he kissed her.

49. The offender said, “it’s your turn to remove your shirt”. The victim was terrified as she removed her shirt. The offender removed her bra and touched her breasts again.

50. Sequence 6 - Sexual touching (sucking victim’s breasts)

51. Sequence 7 – Sexual touching (touching outside of victim’s vagina)

52. The offender started sucking both of the victim’s breasts. While doing that, he touched the outside of the victim’s vagina with his hand.

53. The offender said words to the effect ‘Now it’s your turn to be naked’. The offender removed the victim’s shorts and underpants and started touching the outside of her vagina and kissing her, using his tongue.

54. Form 1 (Sequence 3) - Incest (Digital penetration)

55. The offender digitally penetrated the victim’s vagina.

56. The offender asked the victim if there was anything else she wanted to try, to which she replied “no.” She was shaking slightly.

57. Sequence 2 - Incest (Penile/vaginal intercourse)

58. The offender moved down the bed as the victim lay on her back. He got on top of her and inserted his penis into her vagina.

59. The offender continued to have penile/vaginal intercourse with the victim for about 5 minutes, while she lay on her back.

60. The victim felt a small amount of pain to her vagina.

61. The offender said, “You’re allowed to moan or whimper”, before saying “It’s time to try a different position”. The offender told the victim to get on top of him, as he lay on his back. The offender pulled the victim on top of him and inserted his penis into her vagina. The penile/vaginal intercourse continued for around another 3 minutes, during which time the offender also sucked on the victim’s breasts.

62. The offender said, “This isn’t working. We need to do something else”. The offender told the victim to get off him. He got off the bed and pulled the victim to the side of the bed, closest to the bedside table, on her back. The offender stood to the side of the bed and re-inserted his penis into the victim’s vagina. The penile/vaginal intercourse continued for about 2-3 minutes.

63. The offender asked the victim “Do you want to keep going and do something else, or do you want to go to bed”? The victim replied, “Go to bed”.

64. The offender and victim got dressed. The offender removed the condom and took it and the condom wrapper and left the room. The victim believed the offender had not ejaculated. After the offender left the room, the victim put on music and tried to sleep. The offender opened the bedroom door and said, “Good night, I’ll get you up at 8:00 in the morning.”

65. The attempt to convince acquiescence continued over a period of almost 3 hours. There may have been no prior contemplation of the proposal, and when it was first raised it was unplanned, but once contemplated it was pursued for hours before acted upon. The offender was polite in his repeated endeavours to persuade the victim to participate in sexual activity. The offender introduced a monetary component to the conversation wherein the offender offered to excuse a debt in exchange for sexual activity. In the process he presented as normalising what was an egregious betrayal of innocence and trust.

66. All the offending occurred during the one event.

67. The victim was reliant upon the offender for accommodation and support. Her predicament rendered her vulnerable.

68. Within a few hours after the offending ceased, the offender took the victim to Sydney Harbour to spend the day together. Despite the serious sexual offending he perpetrated upon his own child, he proposed to spend time together undertaking an ordinary family outing.

69. The offender was aged 42 and therefore 26 years older than the victim.

70. The offender was the victim’s biological father. The particular relationship is relevant when considering the incest offending, various relationships are countenanced as ‘close family members’. The offence provision only captures a person above the age of 16, and the victim falls close to the minimum. This is a particularly close relationship. In considering the sexual touching, of a child between 16 and 18 and under special care, I appreciate the victim fell in about the middle of the age range but in a particularly close relationship of those within the categories that qualify. In commenting on age, I do not overlook the different penalties that apply for a child between 16 to 17 and one aged 17-18. I accept the aspects of close family member and under special care each convey an inherent breach of trust. I have assessed the particular relationship in determining the calibre of the breach. I am cognisant not to double count this as a separate aggravating factor.

71. I have considered the type of sexual intercourse and the nature of the touching when assessing each offence. There is no definitive hierarchy that applies to the act of sexual intercourse. In evaluating touching I am mindful of the area touched and whether it was directly to skin. The duration of any offence is informative but not always known or known with precision.

72. I accept the offender wore a condom. He negotiated what acts he could perform and did not violate the resultant agreement. He ceased when the victim indicated she did not want to continue.

73. The offending occurred in the bedroom provided to her as her temporary accommodation. Although it was temporary and to be shared with the offender whilst they were awake, it had been occupied by her for over a month, it was her bedroom and a place she had an expectation to safely occupy. The bed became her bed. This sanctity was violated.

74. There was an immediate impact to the victim. As disclosed in the agreed facts she had suicidal ideation whilst out with the offender. She voiced to a friend and that friend’s mother her concerns and the jeopardy she would be placed in if she were to complain. She candidly stated she had no other place to go and was unable to support herself.

75. I am to assess the objective seriousness of each offence for sentence. The above-mentioned features inform this determination. Each offence is a serious example of the offence provision. Whilst I appreciate the differences in the two touching offences, there is little to distinguish them. The Crown invited a finding each offence fell in the ‘upper mid-range’ and Counsel for the offender submitted each fell ‘below the middle of the range’. This terminology is not necessary, but to reflect my determination consistent with the parties, I consider the incest offence falls at the top of the mid-range and each sexual touching offence is one within the middle of the range.

76. The offender entered pleas of guilty to three offences, one of incest and two of sexual touching a child between the ages of 16-18 under special care. These pleas were entered in the Local Court and require a reduction to sentence for each offence of 25%. The pleas do not of themselves reflect remorse.

77. The incest offending is contrary to 78A(1) Crimes Act and has a maximum penalty of 8 years imprisonment. The touching offences are contrary to s.73A(1)(a) Crimes Act and have a maximum penalty of 4 years imprisonment.

78. In addition to the offences for sentence, I am asked to take into account three further offences on two separate forms 1. I have reviewed the additional offending and consider it appropriate that the further offences be taken into account when sentencing on sequences 2 and 6. Each form contains serious further offending, albeit committed as part of ongoing sexual conduct related to the principal offences, warranting some increase to what would otherwise have been appropriate and to reflect the role of personal deterrence.

79. The offender has a number of more minor offences on his criminal history. His offending commenced in 2005 and continued until 2009 and contains disparate offences. He received fines on three occasions and a suspended sentence on the fourth. He is not of good character, but his antecedents do not disentitle him to some leniency.

80. There are hearsay expressions of remorse. These are relied upon to support the submission on behalf of the offender that there has been genuine remorse.

81. I am assisted by both a Sentencing Assessment Report and a neuropsychological report authored by Dr Sally McSwiggen. Both provide uncontroversial background. Derived from both reports, and confirmed by the offender’s aunt, the offender experienced a disadvantaged background informed by corporal violence and neglect perpetrated by his mother. His mother was an alcoholic. He did not know his father. He was deprived of affection within the home and sought this affection from extended family. Despite having intimate relationships as an adult, he cohabited with his aunt and was her paid carer. He is described as socially isolated and spending most of his time gaming. The manner in which he was raised, and the absence of performing a role of father to the victim have likely compromised his comprehension of normal family interaction. It is suggested that his development and maturity were crippled in his 20’s.

82. In the Sentencing Assessment Report it is reported that the offender described his offending as a ‘brain snap’. I note there was no immediacy to the offending and any brain snap continued over the three hours of persuasion. The offender is said to have indicated he regarded the victim not as his daughter with the expected emotional connection, but as ‘any other female’. This statement overlooks his express understanding in the messages of the inappropriateness of his suggestion to engage in sexual acts. The author referred to the offender’s distorted views generally to females.

83. The author of the Sentencing Assessment Report notes the assessment of the offender being at average risk of reoffending. She also recorded the offender, despite reflecting a level of remorse, to have limited insight regarding the impact of the offending.

84. Within the psychological assessment attached to the Sentencing Assessment Report the offender’s limited social network and friendships are stated. The concern regarding his mental health is raised given he previously ceased medication supporting an observation of his maladaptive coping strategies.

85. Dr McSwiggen documented the offender self-reporting feeling socially anxious and low in mood before entering custody. After entering custody he presented with symptoms consistent with an Adjustment Disorder with depressed and anxious mood. There is no suggested mental health issue informing the offending. This is a situational informed diagnosis post-offence. The offender explained his offending being due to ‘sexual loneliness, the victim’s availability and his capacity to initiate deviant sexual actions’. Dr McSwiggen reported the offender to express regret although he presented as still developing insight into the impact of his offending. Whilst noting the offender’s reluctance to engage in group-based custody programs for sex offenders, she assessed the offender as having a low/moderate level of risk needs.

86. As stated by Dr McSwiggen, the offender is unlikely to be presented with any further opportunity to reoffend, certainly not similar offences. He exploited a situation that will not be repeated. He has no other sexual offending supporting a concern he would offend against a stranger. He has no intimate interactions that would provide any opportunity to act on any further ‘brain snap’.

87. The offender’s aunt is prepared for the offender to reside with her upon his release. He will therefore have stable accommodation. I observe however it was in this same environment that he was able to offend.

88. I accept there is a component of remorse falling short of fulsome. I determine the offender is unlikely to reoffend based upon an absence of opportunity. His prospects of rehabilitation will be enhanced once his insight further develops. It follows personal deterrence continues to play a role although somewhat limited.

89. General deterrence is of significance in sexual offending upon children, more so when committed by trusted family members.

90. I have reflected upon the submission that the offender’s background of disadvantage should operate favourably. I accept the details informing this disadvantage. I do not consider there is anything that lessens moral culpability.

91. The offender’s aunt has documented the hardship she has experienced since the offender entered custody. Although she has carers attending to her needs, she received what she describes as a better service from the offender. Her needs are being addressed based upon an assessment and the provision of appropriate care. She may not be receiving perfect care, but she receives care. I accept there is an impoverishment of her lifestyle but not warranting any amelioration to sentence.

92. The offender has experienced health issues in custody. The favourable outcome is that he was morbidly obese and has managed to lose 50kg. This will assist the management of his type 2 diabetes. The offender’s aunt has related the offender suffering detriment to his vision, asthma and his shoulder. Her observations and the offender’s reporting of stress are supported by the tendered Justice Health documents.

93. I am assisted by a Victim Impact Statement. This was read on behalf of the victim who was in Court as it was read. It is a moving account of the harm she perceives has been occasioned to her consequent to the offender succumbing to his sexual urges. She united with her father only to have that fledging relationship dramatically extinguished. It has informed most aspects of her life to her detriment. I accept that there has been real tangible harm and that it will not readily resolve. I observe she presents as capable and resilient and has the support and resolve to improve her situation.

94. It is accepted on behalf of the offender that only a sentence of full-time custody is appropriate. The offender had been on remand since 10 March 2023 and sentence will date from this date.

1. Some accumulation is required. The sentence for any one offence would not encapsulate the other offending. I do not overlook that all offences occurred as part of an ongoing single incident, and this supports considerable concurrency.

2. The offender submitted that a finding of special circumstances should be made. The Crown opposed this. The offender relies on this being his first custodial sentence, the onerous conditions in custody based on anxiety and low mood informing the adjustment disorder and the need for a longer period on parole to assist reintegration. I accept these in combination support the finding sought. Only a moderate adjustment is required.

3. The offender is convicted of each of the three offences for sentence.

4. I intend to impose an aggregate sentence. I nominate the following indicative sentences, each reduced by 25% to recognise the plea of guilty:

5. Sequence 2, incest, taking into account the further offence of incest on the form 1: 3 years and 4 months imprisonment;

6. Sequence 6, sexually touch child between 16 and 18, under special care, taking into account the further two similar offences on the form 1: 2 years imprisonment; and

7. Sequence 7, sexually touch child between 16 and 18, under special care: 1 year and 10 months imprisonment.

8. The sentence imposed is one of 4 years and 4 months imprisonment with a non-parole period of 3 years imprisonment to date from 10 March 2023. The offender is eligible to be released on parole on 9 March 2026. The variation of the statutory ratio to 69% is to reflect the finding of special circumstances. No lesser sentence is warranted.

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Decision last updated: 25 November 2024