R v Sampson

[2024] NSWDC 694

District Court

New South Wales

Medium Neutral Citation:

R v Sampson [2024] NSWDC 694

Hearing dates:

31/5/24, 14/6/24

Date of orders:

14/6/24

Decision date:

14 June 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 7 years with a NPP of 4 years 3 months (31/1/24-30/4/28).

I find special circumstances.

The indicative sentences are (5 percent discount taken into account):

Count 1 Indecent assault under 10 – 2 years 10 months.

Count 3 Indecent assault under 10 – 3 years 1 month with NPP 1 year 10 months.

Count 5 Indecent assault under 10 – 3 years 2 months with NPP 1 year 10 months.

Count 7 Indecent assault under 16 – 3 years 6 months with NPP 2 years 1 month.

Count 8 Indecent assault under 16 – 3 years 5 months with NPP 2 years.

Count 9 Indecent assault under 16 – 3 years 3 months with NPP 1 year 11 months.

Count 10 Sexual touching 10-16 – 3 years 1 month (Form 1 taken into account)

Catchwords:

Crime – Sentence – Indecent assault of a child under 10 years – Indecent assault of a child under 16 years – Intentionally sexually touch child 10-16 years

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

BP v R [2010] NSWCCA 159

Bugmy v The Queen [2013] HCA 37

Hoskings v R [2021] NSWCCA 169

Nasrallah v R [2021] NSWCCA 207

R v Gavel [2014] NSWCCA 56

TM v R [2023] NSWCCA 185

Category:

Sentence

Parties:

NSW DPP – Crown
Todd Sampson - Offender

Representation:

Mr Queenan and Mr Larkin for Crown
Mr Hussey for Offender

File Number(s):

22/113888

Publication restriction:

Statutory non-publication order in relation to the identity of the victims

remarks on sentence

1. Mr Sampson is for sentence in relation to a number of offences as follows: Firstly, count 1 which is an offence under s 61M(2) of the Crimes Act 1900 being an offence of indecent assault of a child under the age of ten years. The maximum penalty for that offence is ten years imprisonment. Secondly, count 3 which is an offence under the same provision which is an indecent assault of a child under the age of ten years and which carries a maximum penalty of ten years and a standard non-parole period of eight years which is specified. Count 5, which is an offence of indecent assault of a child under the age of 16 years which is under the same statutory provision and carries the same maximum penalty and standard non-parole period. Count 7, which is an offence of the same type, indecent assault of a child under 16 years, which carries the same maximum and standard non-parole period. Count 8, which is another offence of the same kind and carries the same maximum and standard non-parole period, as does count 9, which is similar offence. And finally, count 10, which is an offence under s 66DB(a) of intentionally sexually touching a child above the age of ten but under the age of 16, which carries a maximum penalty of ten years imprisonment but no standard non-parole period.

2. In addition, in sentencing for that last offence, he asks that I take into account an offence on a Form 1 document which is an offence of intimidation under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 which ordinarily carries a maximum penalty of five years imprisonment on indictment.

3. The maximum penalties and where applicable, the standard non-parole period, are of course important guideposts in the sentencing exercise and I have had regard to those.

4. The offender pleaded guilty although at a relatively late stage, and it is agree that he is entitled to a 5% discount by reason of the utilitarian value of those pleas of guilty.

FACTS

5. The facts are agreed and in summary are as follows:

6. The offending relates to sexual offences committed against four different children who I will refer to by their initials. Firstly, SL; secondly, AS; thirdly, MS; and fourthly, LC.

7. The offender was, during the period 1999 to 2008 in a relationship with LH, who was the sister of the victim, SL and also the aunt of AS and MS.

8. Also between about 2015 and 2016 he was in a relationship with PS, who was the mother of the victim LC.

9. Turning then to count 1 which is an indecent assault upon SL, being a child under ten years of age.

10. This offence occurred at a house in Bolton Point, where the victim SL lived with her parents. At the time, SL was aged eight and the offence occurred on an occasion between October 2002 and January 2003, when the offender and others were visiting SL’s parents at the Bolton Point address.

11. A number of adults went to the shops early in the night which left the offender, his cousin and the cousin’s newborn daughter, as well as the victim SL, at the house.

12. When the cousin’s newborn began to cry the father went to her in the bedroom where she was located. However, on returning he could not find SL or the offender and went looking for them. He eventually arrived at a downstairs bedroom which had the door closed, and upon opening the door he saw the offender sitting on a bed next SL. The offender had his hand down the front of SL’s pants, but immediately removed it when the door was opened and looked at his cousin nervously. The cousin, who was shocked by this, walked out leaving them in the room and returned to the lounge room where the offender and SL joined him shortly after. The offender’s cousin told his partner about this incident. In the days following, he also called SL’s parents and arranged to meet them. At that meeting he told the parents what he had seen and said that he seen “Todd touching up SL in the house when you were at the shops” and told them that he had his “hands down her pants”. However, SL’s parents did not believe the allegation, and thinking that they were being told lies, they did not speak to the man for ten years.

13. The victim SL was later in time the victim of an assault, involving injuries from which she died at age 24 in September 2019. It is not suggested in the facts that her death was in any way connected with the offence.

14. Turning then to counts 3 and 5, which relate to the victim AS.

15. AS is the niece of a woman named Lisa, who was a woman with whom the offender resided along with their two sons at an address in Toronto West.

16. When AS was about seven years old, Lisa would often on weekends pickup AS, her sister MS and her brother, who would then stay the weekend at Lisa’s residence.

17. In relation to count 3, this indecent assault offence occurred in the following circumstances:

18. When AS was about seven years old she stayed over at the Toronto West house. While the female, Lisa, was in her bedroom watching TV, the offender was in the lounge room with AS and other children. The offender started to wrestle with AS. However, while they were wrestling the offender touched AS on the vagina under her outer clothes, although on top of her underwear. This involved the offender placing pressure on AS’s vagina by pressing his fingers against it. AS kept trying to get away from the offender, but he continued to touch her. When she tried a third time to move away the offender stopped the touching and gave a “weird” smirk and a laugh. The other children did not witness what had happened. The victim AS was confused about the incident and “blocked it out”.

19. Turning to count 5. This indecent assault offence occurred when AS was aged about eight.

20. On this occasion AS had travelled to Newcastle with the offender and Lisa. According to the recollection of AS they stayed in a suburb which was on the water with a lake. In the water there was a strong current so the offender told AS that he would take her out for a swim. The offender then placed AS on his back in the water and AS wrapped her legs around the offender with her hands over his shoulders. While the offender was swimming with AS on his back he placed a hand behind his back and touched her on the vagina through her shorts. This involved him placing pressure against her vagina with his fingers. While the offender did not say anything to AS, he smirked in a similar way to the first incident. AS did not say anything and was confused and tried to move away. She did not mention anything to her aunt at the time as she did not feel she could trust her.

21. Counts 7 and 8 relate to the victim MS. MS is the younger sister of AS. She is also a niece to the person I have referred to as Lisa, with whom the offender was in a relationship between about 1999 to 2008. MS was four to five years old at the time of the offending.

22. Lisa would pick up MS, AS and another sibling, when their mother was unable to care for them.

23. In relation to count 7, the circumstances were as follows:

24. When MS was about four years old in 2009 to 2010, she was travelling in a car driven by Lisa. The offender was sitting in the passenger seat whilst MS was seated on the floor in front of him. It was dark and she wearing a flowing dress and underwear. The offender started touching MS on the side of her leg and then moved to the underside of her thigh as if he was picking something up. MS at that time had her legs pulled up to her chest. The offender then touched MS on the vagina under her underwear, using his fingers to rub the outside of her vagina. The offender stopped doing this when the vehicle stopped and there were lights outside the vehicle.

25. On another occasion, and this is the subject of count 8, when MS was aged five, she was again sitting in the footwell area in the front of a vehicle, in which the offender was seated in the passenger seat in the front of the car. The offender started touching her legs and then rubbed her vagina on the outside of her clothing. It was dark at the time and so no one was able to see the incident. MS did not tell anybody about these incidents at the time and would get upset every time she saw the offender or when others would talk about him.

26. Counts 9 and 10 relate to the victim LC.

27. LC was 7 and 11 years of age respectively at the time of the two offences which relate to her.

28. In about 2015 to 2016 the offender had commenced a relationship with a woman named Pamela, who was the mother of LC and subsequently they had three children together.

29. During the offending period, LC lived with her mother at Gorokan but she would visit her father fortnightly or monthly. The offender also lived at this residence, but in 2021 he was often participating in a rehabilitation program in Sydney and so would visit every couple of months.

30. Turning then to count 9. On an occasion in 2018 when LC was seven years old, she was laying on a mattress next to the TV in the loungeroom. The offender approached LC and used his hand to rub her vagina, on the outside of her clothing, over a period of a few seconds. At the time, LCs mother was in Melbourne so the offender was looking after LC in the absence of her mother. LC told her mother when she returned from Melbourne that the offender had “touched” her. Her mother responded by saying “stop lying”. LC did not discuss the matter again with her mother, until after the next incident, which brings me to count 10.

31. This offence occurred in September 2021, when LC was 11 years old. At the time, she was at her house in Gorokan with her mother, the offender and her three siblings. LC was laying on a bed in her bedroom messaging a friend on Snapchat while watching YouTube. The offender entered the room and sat on the bed next to her. He then rubbed her vagina on the inside of her shorts, although on top of her underwear. LC told him to stop and tried to push his hand away but the offender did not stop and LC felt scared. The offender said nothing during the incident but after a few seconds, LC’s mother came downstairs and the offender stopped and told LC to hide behind a curtain which she did. LCs mother asked the offender what he was doing sitting next to LCs bed, to which he replied, “looking for a rat”. LC was later spoken to by her mother and told her mother that the offender had been “touching” her. As a result, LCs mother told her to stay next door for the night. LC has not seen the offender since then.

32. The Statement of Agreed Facts notes that the two incidents involving LC were not isolated. There was another occasion when the offender touched LC’s vagina on the outside of her clothing while in the pool at the Gorokan house.

33. In relation to the matter on the Form 1, which is to be taken into account in sentencing on the count 10 offence, the circumstances are as follows;

34. There was an occasion when the offender told LC that he would have to kill her father if she went to visit him. This occurred on the last occasion that LC saw the offender which was in about September 2021.

35. On 5 October 2021, LC attended the Central Coast Child Abuse unit with her mother where she was interviewed. Police subsequently obtained statements from AS, MS and other witnesses. The offender was arrested on 21 April 2022 and declined the offer to be interviewed. Those are the relevant facts of the offences.

VICTIM IMPACT STATEMENT

36. Victim impact statements were provided by three of the victims, namely AS, MS and LC. These are not relied upon as aggravating any of the offending or increasing the objective seriousness and I do not approach them in that way. However, they each describe the confusion, fear and alarm that such activity involves, and the serious and often life long consequences which usually leave the victim with lasting and serious difficulties in many aspects of their lives: see R v Gavel [2014] NSWCCA 56.

37. There are of course a number of reasons why sexual abuse of a child is usually so damaging. One of the most obvious is that it exposes them to behaviour that they are not yet properly equipped to understand. Another is that where the perpetrator is an adult, there is an implied expectation that the child should not question or complain. In making these observations, I reiterate that I do not treat the obvious harm to the victims as an aggravating matter.

OBJECTIVE SERIOUNESS

38. Turning then to my assessment of the objective seriousness of each of the offences. Each of them must be regarded as potentially very serious, given the maximum penalties and in some cases, the specification of a standard non-parole period. However, it is important that I examine the circumstances of each offence, and consider where on a theoretical scale its seriousness lies. In making that observation, I do not suggest that it is necessary of course for the Court to ascribe any particular labels to the level of objective seriousness, although that in some cases, can be helpful.

39. Count 1, is an offence which involved the offender touching the victim’s genital area by placing his hand or hands inside her pants. The facts do not state whether this contact was skin on skin or through underwear, and so I approach the offence on the less serious basis that it was through underwear. The child was eight years old at the time and so slightly under the upper threshold of ten years, while the offender was considerably older, at about age 18 or 19. Also, the offence occurred in the home of the victim. I assess this offence as being below the mid-range but not within the low range of objective seriousness.

40. The count 3 offence involved a seven year old child who was comfortably under the ten year upper range for this type of offence. The offender was aged in his early to mid-twenties, so there was a considerable age disparity. The offending involved touching of the genital area through underwear and continued, despite the victim’s attempts to move away. I assess this offence as being below the mid-range but not in the low range.

41. Count 5 involved the offender touching an eight year old on the vagina “through her shorts on the outside” which the Crown accepted in written submissions involved touching “over swimsuit/underwear”. There was a large age disparity with the offender being aged about 25 or 26. At age eight, the victim was well under the age limit of 16 years for this type of offence. I regard this as an offence slightly below the mid-range.

42. Count 7, this offence involved a child who was four to five years old at the time, while the offender was aged about 25 or 26 which is of course a very large age disparity. The victim’s age places her well under the upper range of age for this type of offence of 16 years, and the offending involved skin on skin rubbing of the vagina. It is an offence in my view that falls well within the mid-range.

43. Count 8, involved the same victim at a time when she was about five and therefore, still well under the upper limit of 16 years for this type of offence. The offence involved rubbing of the vagina area, although no skin on skin contact. The offender was aged about 26 to 27 so there was a very large age disparity. I regard this offence as being well within the mid-range.

44. Count 9, relates to the rubbing of LCs vagina, although through clothing. She was aged seven at the time and therefore, well under the 16 year threshold or upper limit as it might be referred to, and there was a large age disparity with the offender being aged about 27. The offence also involved a breach of trust as the offender was minding the victim at the time. It also occurred in the home of the victim. I assess this as being a mid-range offence.

45. Count 10 also related to LC and involved touching her vagina through underwear. She was 11 years old at the time of this offence and so comfortably under the 16 year upper limit and again, there was the large age disparity with the offender being aged about 37. This offence also occurred in the home of the victim and continued despite her protests. I assess this offence as being slightly below the mid-range.

46. The agreed facts note that the two offences against LC were not the only ones and that there was another somewhat similar offence. This does not increase the objective seriousness of either of the above offences and the offender is not to be punished for this additional matter in the sense of being sentenced for it. However, it is relevant in providing the context that these two offences against LC were not isolated. I approach this context evidence only on that basis.

47. Furthermore, the count 10 offence was committed while the offender was on conditional liberty due to being subject to a Community Correction Order and an Intensive Correction Order. Again, this does not increase the objective seriousness of the offence, but it is an aggravating feature, affecting considerations of punishment, deterrence and the protection of the community: see Field v R [2020] NSWCCA 105.

SUBJECTIVE MATTERS

48. Turning then to subjective matters, relating to the offender himself. He is now aged 40. His criminal history does not assist him in claims for leniency. Although he has no prior convictions for sexual offences, this also does not really assist him greatly, given that the offending now before the Court spans a lengthy period of time from 2003 to 2021 when the offender was between the ages of about 18 or 19 and 37.

49. The offender’s background and current circumstances are before the Court by means of the psychological report of Jason Borkowski. The offender was born and raised in the Newcastle and Western Sydney areas. He was raised by his natural parents, although there was a period or periods of separation by his parents, and the psychologist indicates that the offender appeared to have experienced somewhat transient care arrangements in his early childhood.

50. The offender told the psychologist that his father was good and hardworking and also spoke positively OF his mother with whom he always had a close relationship. There were no real drug or alcohol problems in the home growing up and, although his parents argued frequently, there was no domestic violence or abuse. He attended school to the end of year 7 but his schooling was quite disrupted with frequent moves to different schools due to housing relocations. The offender hated school and struggled with reading and writing. He lived with his family until aged about 18 or 19 and then moved in with his partner in Department of Housing accommodation.

48. The offender has during his adult life had three main relationships which have produced a number of children, although the offender, apparently now, has little or no contact with his children. his most recent relationship ended, as a result of the current charges, two of which relate to one of his former partner’s daughters.

49. The offender spent much of his adolescence in the Lake Macquarie area where he became involved with older peers who were engaged in antisocial behaviour and drug abuse and he was also exposed to some violence, including racial vilification.

50. In this regard, I note that he is of Australian Indigenous background. He has a history of some sporadic employment but hopes to improve his employment prospects while in custody by obtaining a forklift licence and improving his reading and writing skills. The offender denied having accessed child abuse material and denied any deviant sexual interests when spoken to by the psychologist.

51. He has been a user of a number of illicit drugs over the years and has had for some time a pattern of excessive alcohol use. In 2021, he engaged in a rehabilitation program but relapsed into alcohol use again when charged with the current offences. He told the psychologist, however, that since being in custody he has remained abstinent from drug use. Although the psychologist asked the offender about the offences, he said he could not recall any details of them and was unable to provide any insights into any causal or contributing factors.

52. Counsel for the offender pointed to the offender’s childhood and adolescent background as a matter that is relevant to his moral culpability: see Bugmy v The Queen [2013] HCA 37. It was not submitted that his background had any direct causal and/or contributory link to his offending. However, it was submitted that the deficits in his early upbringing may provide some explanation for the offender’s subsequent pathway to drug and alcohol abuse and his prior interaction with the criminal justice system.

53. On the other hand, it was conceded by counsel that there is no evidence to support a conclusion that the offender was affected by alcohol or drugs when he committed any of the offences and, of course, in any event, self-induced intoxication is not a matter that can mitigate an offence. The boundaries of “Bugmy type” cases are not black and white and the boundaries of the operation of that principle have not been clearly or definitely delimited: see Nasrallah v R [2021] NSWCCA 207. It is also the case, as Brereton JA observed in Hoskings v R [2021] NSWCCA 169, that there is no need to characterise an offender’s childhood as “profound” in terms of deprivation before the principle is engaged.

54. The current case is not, in my view, one where the offender’s childhood can be said to have been seriously deprived or compromised, but his early years did involve disruptions to his care and his education, and he was, whilst still at a relatively young age, exposed to alcohol, drugs, violence and other negative influences. These are matters which I accept contributed to the offender’s abandonment of his education and to his continued use of substances, mainly alcohol, into his adulthood. His background can be seen in this way, as the psychologist suggests, to have had a negative impact on his psychological development and to have contributed to a distorted self-perception and low self-worth.

55. These are matters which in turn made some contribution to the offender’s inability to control impulses such as those apparently involved in the offences. I accept that in this way, his moral culpability is reduced although to a limited degree.

56. I have also considered the submission on behalf of the offender that his moral culpability is reduced in relation to the earlier in time offences by reason of his youth or relative youth. This submission was directed primarily at the offence in count 1 when the offender was aged about 18 or 19 and to a lesser extent to the offences in counts 3, 5, 7 and 8 when the offender was aged between about 24 and 27 years. Youth can be a matter that mitigates an offender’s moral culpability, because an immature person may be more prone to engaging in impulsive behaviour and may be less able to think through the consequences of their actions: see BP v R [2010] NSWCCA 159, and also TM v R [2023] NSWCCA 185.

57. While I accept that the offender’s relative youth at the time of the count 1 offence is a matter that reduces his moral culpability slightly, I do not accept this in relation to any of the later in time offences. That is because of the offender’s relatively mature age at those times and also, the fact that when regard is had to all of the offences on the indictment, they tend to demonstrate a pattern of opportunistic and similar conduct which cannot be attributed to youthful impulsiveness.

REMORSE

61. Turning then to the question of remorse. As the offender did not give evidence and made no comments to the psychologist about the details of his offending, there is no direct evidence of any remorse. However, it seems to me that he is entitled to a finding of some remorse by reason of his pleas of guilty. Pleas of guilty in response to charges of this kind are a rather rare thing, largely due, I conclude, to the “word on word” nature of the evidence normally relied on by the Crown in proof of such charges. It is on this basis, therefore, that I do find that there is some remorse.

PROSPECTS AND RISK

62. I have also given consideration to the offender’s prospects of rehabilitation and his risk of reoffending. The offender has no previous history of sexual offences or other offences against children. However, this needs to be balanced against the fact that he committed these offences over a period of about 18 years against four children.

63. The psychologist notes that there are a number of protective factors in relation to future risk. Firstly, that the offender did not endorse attitudes supportive of sexual violence; Secondly, that he did not endorse attitudes consistent with child sexual abuse in general; Thirdly, that he did not report deviant interests or a history of other sexual dysfunction; Fourthly, that he has a history of age appropriate long term relationships; Fifthly, that there is no evidence of major mental illness; and sixthly, no indication of anti-social or psychopathic tendencies.

64. In conclusion, and having considered all of these matters, while I am of the view that the offender has some prospects of rehabilitation, I think he remains a material risk of some future offending.

COVID

65. I have taken into account that some of the offender’s time in custody has been during aspects of the COVID pandemic with its well-known impacts on persons in custody. However, this is not a matter to which I attach much weight, given that the effects of the pandemic had largely waned by the time the offender went into custody.

66. I have, however, given some weight to the uncontested assertion that since February 2024, the offender has experienced 38 days of lockdown, due to staffing shortages and that this may reoccur in the future. These are matters that have made and may continue to make his time in custody more difficult.

DETERMINATION

67. In determining the appropriate sentence in this matter, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 – there is an obvious need to ensure that the offender is adequately punished, to protect the community, to make the offender accountable and denounce his conduct, as well as recognise the harm done to the victims and, in a sense, to the community generally.

68. It is also important, in my view, to give weight to the importance of general deterrence and also personal deterrence of this particular offender. However, it is also necessary to take into account as I have, the importance of promoting, if possible, the rehabilitation of the offender.

69. I am satisfied for the purposes of s 5 of that same Act that no penalty other than imprisonment is appropriate.

70. I intend to impose an aggregate sentence, given that there are a number of offences, and in imposing that aggregate sentence, I have made a finding of special circumstances for adjusting the ratio between non-parole period and head sentence. I do that on the basis that this is the offender’s first period in full-time custody and also the need for him to be monitored for a reasonable period of time upon his release to parole.

71. As there are multiple offences for which separate indicative sentences must be specified before a final aggregate sentence is imposed, I have given careful consideration to totality principles, and the degree to which there should be any notional accumulation or concurrency among the sentences. In my view, there is a need for some notional accumulation, so as to acknowledge the number of individual victims as well as the fact that each of the offences involved discreet criminal acts, carried out on separate occasions, over a period of many years. However, in having regard to the need for some notional accumulation, I have taken care to avoid imposing a sentence that might have a crushing effect on the offender in terms of his prospects of rehabilitation.

72. As I have said, I intend to impose an aggregate sentence. In those circumstances, I am required to specify the indicative sentences for each of the counts for which sentence must be imposed. It should be understood that the indicative sentences which I will now announce are not the final sentence. The final sentence will be made clear after I have read out these indicative sentences. Indicative sentences are all calculated, having regard to the 5% reduction for the late pleas of guilty. Indicative sentences are as follows;

73. For count 1, imprisonment of two years ten months.

74. For count 3, three years one month imprisonment and I specify a non-parole period of one year ten months.

75. For count 5, three years two months and I specify a non-parole period of one year ten months.

76. For count 7, three years six months and I specify a non-parole period of two years one month.

77. For count 8, three years five months. I specify a two year non-parole period.

78. For count 9, three years three months. I specify a non-parole period of one year 11 months.

79. For count 10, taking into account also the Form 1 matter, a head sentence of three years one month.

80. I impose an aggregate head sentence for all of the offences of seven years imprisonment. I impose a non-parole period of four years three months. Each of those will date from 31 January 2024. The head sentence therefore, will expire on 30 January 2031. The non-parole period will expire on 30 April 2028.

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Decision last updated: 04 November 2025