R v SB

[2018] NSWDC 474

District Court

New South Wales

Medium Neutral Citation:	R v SB [2018] NSWDC 474
Hearing dates:	20 June 2018
Decision date:	20 June 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – 1st time in custody, likely to be held in limited association or protection & would be assisted by a longer period of parole to assist in reintegration into the community, including counselling and/treatment in respect of alcohol abuse and sexual offending. Indicative sentences: Count 1: 10 years’ imprisonment with a NPP of 6 years and 8 months Count 5: 9 years’ imprisonment with a NPP of 6 years Aggregate sentence: Sentenced to a term of imprisonment for 12 years comprising a NPP of 8 years to commence on 8/5/18 and to expire on 7/5/26 and a balance of term of 4 years to commence on 8/5/26 and expire on 7/5/30. Eligible for release to parole on 7/5/26.
Catchwords:	CRIMINAL – sentence – after trial - child sex offences — sexual intercourse with person, under 10 - circumstances of aggravation – under authority–2 offences - victim the natural child of offender – digital vaginal penetration – abuse of trust and authority – alcohol, PTSD – ex-ADF veteran of Afghanistan and East Timor - subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Category:	Sentence
Parties:	Regina SB
Representation:	Counsel: Crown: Ms K Jeffreys Defence: Mr P Lonergan   Solicitors: Crown: Ms S Shrubb Defence: Mr A Dikha
File Number(s):	2016/00129081
Publication restriction:	Non-publication order for name of complainant and offender or any evidence which might identify the complainant

Judgment

1. HIS HONOUR: The offender SB appears for sentence in respect of two offences, the first being sexual intercourse with a child under 10 years of age in circumstances of aggravation, that the child was under his authority. That offence was contrary to s 66A(2) of the Crimes Act. The maximum penalty available is life imprisonment and there is a standard non-parole period of 15 years provided.

2. The second offence is one of sexual intercourse with a child under 10 years of age. That offence is contrary to s 66A(1) of the Crimes Act and the maximum penalty available is life imprisonment and a standard non-parole period of 15 years is provided.

3. This matter proceeded as a trial commencing with a pre-trial application on 23 April 2018. The indictment contained three primary counts and three alternative counts to each of the primary counts. The offender was found guilty by the jury on 8 May 2018 in respect of Count 1, being the first offence to which I referred, and Count 5 being the second offence to which I referred. He was acquitted in respect of Count 3 and its alternative Count 4.

4. The offender had not been in custody prior to the completion of the trial, however I refused bail on the completion of the trial and he has been in custody in relation to these matters and only these matters since that date.

5. It has been accepted by the parties that the Crown’s summary of the relevant findings of fact consistent with the jury’s verdicts are contained in the Crown’s sentence submissions, and accordingly, I will adopt what has been set out.

COUNT 1 SEXUAL INTERCOURSE WITH CHILD UNDER 10 UNDER AUTHORITY

6. The victim turned five on 10 September 2012. In 2013 she was in kindergarten in Bayview. She was living with her parents in a three bedroom unit in Newport. The complainant, CB, was the child of the offender and his then wife, TT. They had married on 8 December 2006. CB was born on 10 September 2007.

7. The offender and TT shared the main bedroom of the apartment while the victim would sleep in one of the two other bedrooms. One of the beds the victim regularly slept in was a cabin-type bed, similar to a bunk, with storage and desk below and a single mattress on top, accessed by a small ladder.

8. From time to time, the victim’s mother was required to be away on a weekend for work. One such occasion was Friday 17 May to Sunday 19 May 2013 when she went to Newcastle for a work conference for two nights. While TT was away, the offender and the victim were alone together.

9. On the Friday afternoon, the offender collected the victim from school and drove her home. She played for a while, had a shower and some dinner and then went to bed. The offender drank some beer.

10. After the victim had gone to bed, the offender entered her bedroom, climbed up the ladder and got into bed with her. The victim could smell beer. She was wearing a nightie and underwear. The offender used his hand or hands to manipulate and penetrate the victim’s genitalia inside her clothing. The victim described this as “pushing and pulling my privates”. She also used the words “flicked and slid” as well as “swipe and push and pull”. The offender also touched her bottom. The victim felt pain to both the outside and the inside of her genitalia that she described as “like needles stabbing into” her.

11. Afterwards, the offender went to sleep in the victim’s bed. The victim got up and moved to her parents’ bed where she went to sleep.

12. After this first occasion, the victim tried to talk to the offender about what had happened. The offender gave the victim the impression that he did not believe her and that he thought she was a liar.

COUNT 5 SEXUAL INTERCOURSE WITH CHILD UNDER 10

13. In late January 2014, the offender and TT separated. From about May 2014, parenting orders were in place that provided for the victim to live with her mother and to spend every Wednesday night and each alternate weekend with the offender.

14. In 2015, the victim changed schools. That year she was in Year 2 and she turned eight on 10 September 2015. She lived with her mother in a townhouse in Newport, and the offender lived in a three bedroom house at Quakers Hill.

15. The victim spent the weekend from Friday 30 October to the Sunday 1 November 2015 with the offender in accordance with the parenting orders. On the Friday, the offender collected the victim from after-school care and drove her to his house in Quakers Hill, arriving about 9pm.

16. The Saturday was Halloween. In the morning the offender went to work, leaving the victim with a babysitter. In the afternoon, when the victim was with the offender, she wet her pants. This had happened before when the victim was with the offender. About 10 days earlier the offender had sent the victim to school wearing a “pull up” or nappy. The victim says she wets herself when she gets scared, and that on this occasion she was scared of the offender “because of all the bad things that he has done to me”.

17. The victim got dressed in a Halloween costume. She took a photograph of herself using her mobile phone and sent it to her mother. She also decorated the offender’s face for Halloween.

18. At around 7pm the offender and the victim went around to a few neighbouring houses “trick or treating”. When they got home the offender sent the victim to bed.

19. At some point after the victim had gone to bed, the offender entered her bedroom and got into bed with her. He had been drinking beer. The victim was wearing a nightie and underwear. The offender put his hand down the front of her underwear and squeezed her genital area. He used his hand or hands to manipulate and penetrate her genitalia inside her clothing. She used the same words as previously described at para 5 and also indicating that he touched her bottom and in addition he said to the victim “You’re the sexiest girl ever”. She told him to “get off” and “stop it” and asked “What are you doing”. The victim felt pain.

20. Afterwards the offender appeared to go to sleep and he talked about being with other girls. He said “Get naked, Ann Marie” and the word “sex”. The victim left the offender in her bed and went into the spare bedroom. She played a game with her teddies. They had a “cuddle party” and played hide and seek. The victim then fell asleep on the floor. The next day the victim went home to her mother’s house.

21. On the morning of 13 November 2015, the victim was extremely distressed when her mother dropped her at before-school care, and she told the co-ordinator that she did not want to go to the offender’s house that weekend. She complained that the offender speaks rudely about her mother, that he does not like it when she rings her mother, and that she does not feel safe when he drinks too much. She wrote a letter to the offender, Exhibit 5 at trial, in which she mentioned these issues and also complained that the offender’s girlfriend’s daughter had been given a birthday party, stating “I want you to myself”. In class that day she wrote further notes expressing the same sentiments (trial Exhibit 4).

22. TT was contacted during the day by the co-ordinator and by the school. Because of the victim’s distress, TT collected her from school that afternoon and then met with the offender. The victim did not go to the offender’s house that weekend and they have not seen each other since. On 4 December 2015 further orders were made giving sole parental responsibility for the victim to TT, at that stage on an interim basis.

23. On 3 March 2016, TT was taking the victim to an Interrelate “Where do I come from?” session at her school. On the way, the victim said “Mum, I’ve got to tell you something but I don’t want you getting upset. It’s about D-A-D”. She went on to disclose that the offender had put his hands down her pants. She said “He just pressed, he pushed and pulled” and she said it made her feel sore when she thought about it. Later that evening, TT asked the victim if it was just the one time, and the victim said “No, it happened at the house with spiders, and at Easter. The last time was Halloween”.

24. The victim was first interviewed by JIRT officers on 15 March 2016 and she gave details of Count 5, the last offence. The victim returned for a second interview on 14 April 2016 in which she gave details of Count 1, the first offence. In both interviews, the victim made it clear that similar incidents had occurred on many other occasions although she was unable to identify any specific occasion, and in respect of her description of any events, whether it be in relation to Count 1, Count 5 or any of the other context evidence. Her evidence was very limited in terms of description, essentially amounting to an assertion that the same thing that had happened in respect of Count 1 and Count 5, had happened on each of the other occasions.

25. Count 1 was in relation to digital vaginal penetration between 16 May 2013 and 10 September 2013 at Newport, being the then location of the family home. At that time s 66A(2) was the aggravated form of the offence otherwise referred to in s 66A(1). The various circumstances of possible aggravation were referred to in subs (3). In respect of that offence, the aggravating circumstance was that the complainant was then under the authority of her father.

26. Count 5 was a further allegation of digital vaginal penetration between 30 October 2015 and 2 November 2015, contrary to s 66A(1) of the Crimes Act. In the intervening period between Count 1 and Count 5, a period of approximately some 17 months, the legislation was amended. The circumstances of aggravation were removed from the section and subs (1) became an offence which also had available a maximum term of imprisonment of life, and there was no requirement for any aggravating circumstance.

27. Previously, s 66A(1), being a different offence although similar in terminology, had had a maximum penalty of 25 years’ imprisonment.

28. In respect of Count 1, the fact that the complainant was then under the authority of her father is already taken into account by the elements of the count itself. In respect of Count 5, no circumstance of aggravation is required, however relevant to Count 5 as an aggravating circumstance is s 21A(2)(k). The offender abused the position of trust or authority in relation to the victim.

29. It is relevant to point out the distinction between Count 1 and Count 5 by way of the amendment of the legislation to indicate that I have been careful to ensure that in determining the sentence I have not double-counted.

30. In respect of Count 1 the act of intercourse was digital penetration of the vagina. There was no evidence that the act of sexual intercourse was accompanied by any more degree of violence than the insertion of a finger. There is no evidence that the complainant was intimidated or threatened at any time during the act of intercourse or indeed afterwards. The act itself was of relatively short duration. There is no evidence of any actual injury although the complainant complained of pain and soreness. As previously mentioned, the fact that she was under his authority is already taken into account by the ingredients of the charge.

31. Of significance in relation to this offence is, however, the fact that the complainant was only five years of age at the time. The section has an age range up to 10 years. She was accordingly substantially below the maximum age to which the section applied. It has long been accepted in short that the younger the victim, the more serious the offence, and I accept that that is appropriate in relation to this matter.

32. While authority is taken into account by the section itself, authority and trust generally overlap each other, and for the moment I deal only with the ingredients of the charge and the surrounding circumstances. One of the surrounding circumstances which does not aggravate this offence, but does indicate that the offence was not a one-off, is the context evidence that was allowed during the trial of other events not the subject of charges. The legislation makes no distinction between different forms of sexual intercourse: that is, digital penetration of the vagina, penile penetration of the vagina, digital or penile penetration of the anus, fellatio or cunnilingus. Any distinction depends on the circumstances of the individual matter. Penile penetration of the vagina or the anus may be associated with a greater risk of injury and/or the transmission of sexually transmitted diseases, or, in older complainants, a pregnancy. Digital penetration may result in physical injury but does not run the risk of causing the transmission of an STD or of the complainant becoming pregnant.

33. I accept the submissions made by Mr Lonergan on behalf of the offender that in the circumstances as I have described, the offence falls within the midrange of objective seriousness for such an offence, and towards the lower end of the midrange. In respect of Count 5 I note similarly that there was no evidence of threat or intimidation. Again it was sexual intercourse by way of digital penetration of the vagina for a short period, and in the absence of any injury, although noting the complainant’s evidence that it caused pain.

34. At the time of the offence, Count 5, the complainant was eight years of age, which is getting towards the maximum age of 10 years to which the section applies. In my view, an eight year old child is more likely to remember the event in her later years and is more likely to have developed some sense of what was appropriate contact between an adult and herself, and of what was inappropriate contact. That is that at the time of the offence, she was more likely to appreciate its wrongness. In my view, the offending conduct referred to in Count 5 also falls within the mid-range of objective seriousness for such an offence, although towards the lower end of the mid-range.

AGGRAVATING CIRCUMSTANCES

35. In respect of each of the offences were that the complainant was entitled to feel secure and safe within her own domestic premises in respect of Count 1 and secure and safe in the offender’s domestic premises in respect of Count 5, in circumstances where he was then exercising his custody over her pursuant to the agreement with her mother. As I have previously indicated, trust and authority are largely overlapping, although different considerations or circumstances.

36. S 21A(2) provides the aggravating circumstance in respect of Count 5 of being under the authority of the offender. In each case, the complainant, as the daughter of the offender, was entitled to expect that she could trust him not to engage in sexual misconduct against her.

37. In respect of Count 5, the offender had been placed on an 18 month s 10 bond imposed on 13 May 2014 in respect of the contravention of an AVO order, protecting TT. That is it is an offence committed while on conditional liberty. However, I note the highly restricted terms of most AVO orders and for the term breached on that occasion was in relation to making contact with his then ex-partner for the purpose of obtaining the return of his military medals so that he could participate, with those medals, in an ANZAC march. Nonetheless, it meant that he was on conditional liberty at the time and should have complied with the terms of the order. However, I am not of the view that it is a matter of such significance that it ought to have any significant impact in relation to the sentence to be imposed in respect of Count 5.

38. In relation to this matter, a Victim Impact Statement has been provided by CB which was read to the court on her behalf, and her handwritten document provided as part of Exhibit 1. I do not propose to refer to the detail of what is set out or given as oral evidence on her behalf in these proceedings.

39. It is clear from the statement that CB has been seriously adversely affected by the conduct of her father, who she trusted and whose trust he so outrageously breached. It is notorious in relation to matters such as this that young victims are badly scarred and they carry those scars for significant periods of time, if not for the remainder of their lives. Those scars affecting their general enjoyment of life and creating problems for them in being able to relate to other persons, even as adults, and even after significant assistance from counselling and/or treatment.

40. The complainant was five at the time of the commission of the offence of Count 1 and eight at the time of the commission of Count 5. She is now 10 years of age. In my view, it is likely that the significance of her father’s misconduct will come to play an even more significant role, as she develops emotionally and physically, through her teenage years. That is, while I am cognizant of what is contained in the Victim Impact Statement, my expectation is that the impact will become more significant with the passage of time, at least initially. However, while the effects on her are substantial, and while I anticipate, as I have indicated, that they will become more substantial with time, they are however, within the limit of what might reasonably be anticipated to occur as a result of conduct of this nature and as contemplated by the maximum penalties provided, as well as the standard non-parole period provided in relation to each of the offences.

41. I note in relation to the standard non-parole period of 15 years in each case, a standard non-parole period is not, as has been referred to, a tram track but a guidepost to be taken into account, and I will take it into account as a guidepost and not a tram track.

SUBJECTIVE MATTERS

42. Although the offender gave evidence at trial denying the commission of any of the counts contained in the indictment, he has not given evidence on sentence. Before the Court in relation to sentence is a report under the hand of Chelsea Dewson, a psychologist with LSC Psychology, dated 12 June 2018, a Pre-Sentence Report under the hand of Kathleen McDermott, Community Corrections Officer, dated 12 June 2018, the offender’s New South Wales criminal history, indicating in 2014 the contravention of the AVO prohibition or restriction in respect of which he received a s 10 bond of 18 months, and a further offence in October of 2014, of driving with a high range PCA in respect of which he was fined and disqualified, and a Tasmanian criminal history indicating three separate attendances before the court on 14 August 1996 in relation to what, in New South Wales, would be a low-range PCA, being an unaccompanied learner, and failing to display ‘L’ plates. He was again before the Tasmanian courts on 26 March 1998 in relation to failing to wear a seat belt, and again being an unlicensed driver. The third occasion was on 15 November 2002, being an unlicensed driver, and further on that date, an offence of being a driver without any relevant licence or permit driving with alcohol in his body. I note that in relation to all of those matters he was fined and appropriately disqualified.

42. I am not of the view that any of his past criminal history, as just referred to, can have any significant impact on the sentences to be imposed in relation to these matters. All of the Tasmanian offences occurred a significant time ago. I do however draw from the Tasmanian matters that it is probable that the offender has had some ongoing problem with the consumption of alcohol for a number of years, and as confirmed by his recent 2014 high range PCA.

43. I also note the Court has a New South Wales Department of Corrective Services Conviction Sentence and Appeals Report relating to the period since bail was refused at the conclusion of the trial. I note that there are no disciplinary offences recorded. Subjective matters are drawn from that material.

44. The offender is now 38 years of age and he was 33 years of age at the time of Count 1 and 35 years at the time of Count 5. He is presently married. He is the eldest of two children, born to his biological parents, their marriage apparently remaining intact until he was aged 13, when they separated. He remained in the care of his mother, who remarried when the offender was approximately 14. As a result of that marriage, the offender has some four step-siblings. One of his siblings committed suicide approximately 18 years ago, although that has not had any apparently significant or adverse impacts on the offender’s long term functioning.

45. While close to his biological father initially, after his parents’ separation his father remarried and slowly lost contact with the offender. He has in fact had no contact with his biological father since the age of 15.

46. While that was initially upsetting, over time he has gotten over it. He has developed a good relationship with his stepfather who, together with his mother, is one of his primary sources of support. I note that they were present during the trial and gave evidence. It is obvious from their attendance in court and other material that they continue to support the offender and will continue to support him into the future.

47. His family was financially secure and he was not exposed to any financial disadvantage or neglect. He did not experience any physical, sexual or emotional abuse within the context of his immediate family, although there as an incident of sexual abuse by an extended family member when the offender was 16 years of age.

48. He was not, in his childhood, exposed to substance abuse, criminality or anti-social attitudes. When he was participating in Year 11, his mother and step-father moved to establish a business in a remote location and as a result, so that he could maintain access to school, he was provided with an apartment near the school and he lived independently between the ages of 16 and 24.

49. At 24, he enlisted in the Australian Defence Force. The psychological report indicates that there was no indication that he grossly deviated from his natural development course. His schooling experience was stable. He had sound academic results, although like many, he may have in fact underperformed in comparison to his natural academic capacity, although not to the extent that it was likely that it had any adverse impact on his future educational and vocational options. He completed Year 12 and has had no formal education since that time.

50. Prior to joining the ADF he engaged in a range of short term vocations, including hospitality, labouring and in the steel industry. In 2004 he enlisted in the Australian Regular Army, after being accepted in the direct entry scheme to the Special Forces as an infantryman. Apparently, in 2005, he was one of only four out of 50 recruits to pass the Special Forces selection. In 2006 through to 2008 he was operationally deployed initially to East Timor, and later to Afghanistan.

51. As might be anticipated, during his deployments he was exposed to several traumatic experiences, particularly during the Middle East deployment. He experienced the distressing situation of seeing his colleagues and friends either killed or injured during operations. He also had the distressing experience of finding amongst the opposition combatants, young child soldiers and of course, witnessing civilian casualties, in circumstances where he and his colleagues were often unable to provide any first-aid, either due to complex operational issues or cultural reasons.

52. On returning to Australia from Afghanistan, he was discharged. Since being discharged, he has become aware of a number of his colleagues being lost, both in combat and to suicide. When first returning he acted as a primary carer for his daughter, although he found that difficult and took up employment as a “boot camp instructor”. To supplement his income he also worked for Coles, initially in the night fill capacity, but quickly escalated to a management position.

53. He was subsequently employed for a period of time by Adam Lowell, whose business was involved in marine logistics and construction work. Mr Lowell did not give evidence on sentence, nor is there a reference provided by him, however he did give evidence in the course of the trial and it was clear from his evidence that he had a high regard for the offender.

54. As [high regard] was also evident from the evidence of his mother, Elizabeth French and his stepfather, Terrence French, who also gave evidence during the course of the trial. Their evidence was particularly relevant in relation to the third count contained in the indictment; that evidence going to the question of whether it was in fact possible for the offending conduct alleged in Count 3 to have occurred. Clearly, the jury accepted that there was reasonable doubt in respect of Count 3 and accordingly found him not guilty. Nonetheless, his mother and stepfather continue to support him and have been supporting him while he has been in custody since the trial.

55. As to his physical health, there are said to be no overt concerns relating to his physical health and he has apparently maintained a close relationship with his sister, although, since being in custody, on a phone contact basis. His family are said to be stable and pro-social source of support. I accept that that is a proactive factor regarding Mr SB’s risk of reoffending, however I note that it is perhaps unfortunate that they continue to support his innocence in respect of the offences of which he has been found guilty.

56. He commenced a relationship with the complainant’s mother at about the age of 25, and in 2006 they were married. As previously indicated, that relationship broke down after his return from Afghanistan, and he has remarried and has been now married for approximately two years to his current wife. She also supports the offender, being described in the psychological report are “unwavering and unrelenting support”. Again, unfortunately, she also reportedly supports his innocence.

57. He is said to have provided during the consultation with the psychologist no overt information to suggest sexual self-regulation deficits and that he has been able to maintain long term and intimate relationships in the past, and there is no evidence of deviant sexual arousal, albeit that that opinion is based only on the offender’s self-reporting.

58. As to the use of illicit drugs, he commenced smoking cannabis at the age of 16 and it was reasonably regular until he joined the ADF and ceased use.

59. Also, at around the age of 16, he had experimented with alcohol and although he regards himself as maintaining a social pattern of consumption, the psychologist noted that he had been convicted for driving while under the influence of alcohol in 2014, and as previously noted, I have referred to the relevant matters at a much earlier date in Tasmania. The psychologist’s report contains the following quote:

“He denied being involved in any other indiscretions or unhealthy patterns of consumption. However, this is somewhat inconsistent with official documents. There is information to suggest that Mr Brown has historically used alcohol as a means to cope with emotional distress and has at times been behaviourally dysregulated as a result. It specifically appears that Mr SB’s alcohol intake was most concerning during the time he was experiencing psychological distress.”

61. He has some, but very limited, past exposure to LSD and cocaine by way of experimentation, social inclusion and avoidance-based coping. He does not have any significant problem with any prohibited drug.

62. After being discharged from the ADF he was officially assessed as suffering from post-traumatic stress disorder in September 2013. His presenting symptoms in 2013 was hyperarousal, feelings of detachment, intrusive memories of past traumas and poor memory, said to have been experiences commencing in 2009 although he had not, at that time, sought intervention.

63. In 2013, after the diagnosis, he engaged in psychiatric and psychological intervention at the South Pacific Private Clinic for a period of approximately eight months. He was prescribed a regime of psychotropic medication and counselled in the learning of strategies to manage his symptoms. Although he found the psychological aspect of the treatment to be of assistance he felt the medication was ineffective and ceased compliance with that in around 2014. However, as a result of this intervention, he had noticed a reduction in his symptoms and thereafter only experienced occasional nightmares and at times becoming anxious in large crowds, all other symptoms relating to PTSD having remitted until he was incarcerated as a result of refusal of bail at the completion of the trial. He is said since then to have experienced some difficulty sleeping and to feeling concerned about his safety.

64. While in custody there has been no history of psychopathology or psychological disturbance; he is not currently prescribed any psychotropic medication and he is not receiving any treatment from CSMSW or Justice Health. To the extent that he may have any ongoing symptoms, Ms Dewson opines:

“Whilst it is likely that these symptoms will abate over time whereupon return to the community he may benefit from psychological intervention in the future should these symptoms persist.”

65. As to his risk of reoffending, he was assessed by Denise Adams, a Community Corrections psychologist, as being in the “below average risk” category of sexual reoffending relative to other male offenders. However, a limitation in relation to that offending, the report of which is attached to the presentence report, is that although there was an assessment of static risk there was no assessment of dynamic risk. Ms Dewson however carried out her assessment both as to static and dynamic risk and reported”

“In sum, considering the static and dynamic risk assessments, Mr SB is considered to pose a low risk of reoffending. In the unlikely event that he reoffends it is estimated that his offending behaviour would be of a similar nature to the index offence, that is, a contact offence with a child well known to Mr SB”.

66. As that assessment was both as to static and dynamic risks, I accept that there is in fact a low risk of reoffending.

67. As previously indicated, the offender gave evidence at trial to knowing each of the counts and also the context evidence. The Pre-Sentence Report contains the following, under the heading of “Attitude to Offending”:

“Mr SB disputed the facts of these matters and continued to assert his innocence throughout the assessment process. As outlined in the facts, Mr SB appeared to apportion blame upon the victim’s mother as the source of the initial allegations related to the current offences at the time of his arrest.

During recent interviews Mr SB confirmed that his attitude towards the victim’s mother remains unchanged and considered that her motivation to accuse him of such offences was due to their unsuccessful marriage.

Mr SB lacked insight into his offending behaviour in his failure to identify the impact of his actions towards the victim. Moreover, Mr SB lacked victim empathy by asserting the victim had been manipulated by her mother into proceeding with the initial allegations and further considered that the victim may have been upset with him due to her own perceived belief of parenting favouritism towards his then step-daughter.

Notwithstanding this, Mr SB appeared willing to engage in intervention targeted at sexual offending and further asserted that he posed no risk to anyone.”

68. It is evident that the offender, having defended the matters at trial and continuing to promote his innocence, is neither remorseful nor contrite in relation to the offending conduct. In those circumstances, there is no evidence of remorse or contrition.

69. The issue of his PTSD has been raised during the course of the sentence proceedings as diminishing his moral culpability to some extent, and as also being relevant to such issues as custody weighing more heavily on him and reducing or eliminating the need for specific deterrence and it has been submitted that it has some effect on whether he is an appropriate vehicle for general deterrence. I accept that he has in the past been diagnosed with PTSD, and indeed because he was suffering from PTSD, however, that appears to have been largely overcome by his previous treatment in 2013 although no doubt not completely. Ms Dewson’s report includes the following:

“Mr SB appears to experience some psychological pathology prior to his offending behaviour and whilst there is no evidence that a mental health condition is a causal factor to offending his emotional and behavioural dysregulation associated with his condition may have indirectly related to his offending. More specifically it appears that prior to the offences Mr SB experiences heightened marital conflict, psychological distress, a reduction in his capacity to cope and was likely using alcohol as a means to self-regulate. In the absence of information relating to his internal processes it is possible that these factors resulted in Mr SB engaging in the offending behaviour”.

70. I note in the last sentence the use of the phrase “it is possible”. There is no evidence of any causal relationship between PTSD and the offending behaviour. As a result of the evidence given in the trial I have no doubt he was experiencing some marital conflict and that that may have resulted in some reduction in his capacity to cope, and it is probable that he was using alcohol as a means to self-regulate. Those matters may provide some explanation of the background circumstances in which the offending occurred. However, I am not of the view that they operate to reduce his moral culpability for the offending conduct.

71. The prospect of rehabilitation, when an offender is in continuing denial of committing the offence or offences, is extremely difficult to assess. That is not to say that there is no hope for rehabilitation but as a general proposition rehabilitation is unlikely to be affected in the absence of an offender acknowledging the criminal offending. I note that in submissions, Mr Lonergan, at paragraph 19, submitted as follows:

“Regarding prospects of rehabilitation, Giles JA in Alseedi v R [2009] NSWCCA 185 at (65) set out that there can be rehabilitation without confession and that an offender should not be automatically deprived of a finding of good prospects of rehabilitation.

In the present case, it is submitted that the support the offender has from his wife, mother and step-father, the lack of relevant prior offending and the deterrent effect that his already difficult time in custody, provide for a finding of good prospects of rehabilitation.”

72. As to his difficult time in custody, that appears to be that he is currently in protection with limited association, which would appear from the material before the Court to relate to the nature of his offending rather than any other significant factor. There is no evidence before the Court that being in limited association is significantly disadvantageous to him by way of comparison with an offender being part of the general prison population. I do however acknowledge that offenders in limited association are unlikely to enjoy the same time out of cells as prisoners in the general population, which is a form of hardship.

73. In the circumstances of this matter, where it proceeded as a contested trial and with the offender continuing to deny commission of the offences at all, I am unable to find that there is a good prospect of rehabilitation. I am however prepared to accept that there is at least a reasonable prospect of rehabilitation, which may in the future increase to a good prospect providing that the offender first acknowledges his commission of the offences and accepts the seriousness of the impact that those offences may have had on his daughter.

74. I also note that in relation to each of Count 1 and Count 5, and also in relation to each of the alleged incidents that constituted the context evidence, the evidence of the complainant was that the offender was affected by alcohol.

75. There is no particular evidence as to the extent of that, other than that during the course of her pre-recorded evidence, she identified him on occasions as slurring his words and being silly as a result of his consumption of alcohol.

76. I accept in those circumstances - although five year olds and eight year olds are not particularly well qualified to indicate the level of sobriety of an adult - that the offender was on each occasion affected by consumption of alcohol. That is not an excuse but it is at least perhaps some assistance in explaining how he came to commit the offences in those circumstances.

77. For the purposes of sentencing, I have regard to section 3A of the Crimes (Sentencing Procedure) Act 1999. I must take into account such of the aggravating factors and mitigating factors as are referred to in that section, and subsections (2) and (3).

78. In sentencing an offender, the sentence must reflect the objective seriousness of the offence, as well as the need for general deterrence and specific deterrence. I do not accept the submissions of Mr Lonergan that the offender’s PTSD and other matters referred to as “mental health issues” make him a poor example for general deterrence. In my view, in relation to this particular matter, both general deterrence and specific deterrence are important factors to take into account in sentencing him, as well as, of course, the protection of society.

79. I am satisfied, pursuant to section 5 of the Crimes (Sentencing Procedure) Act that no penalty other than imprisonment is appropriate, and indeed, no submission has been made to the contrary.

80. I intend to proceed by way of an aggregate sentence, and in those circumstances I am required to specify an indicative sentence in relation to each of Count 1 and Count 5.

81. As in each case there is a standard non-parole period, I am also required to indicate the non-parole period that would have been provided.

82. In respect of Count 1, being that he, between the 16th day of May 2013 and the 10th day of September 2013 at Newport in the State of New South Wales did have sexual intercourse with CB, a child then under the age of ten years, namely, five years, she being under the authority of the offender, the indicative sentence is ten years with a non-parole period of six years eight months.

83. In respect of Count 5, being that he, between the 30th day of October 2015 and the 2nd day of November 2015 at Quakers Hill in the State of New South Wales did have sexual intercourse with CB, a child then under the age of ten years, namely, eight years, the indicative sentence is nine years with a six year non-parole period.

84. In each case it can be seen that I have, by way of the indicative sentence, indicated that I have found special circumstances warranting a reduction in the statutory relationship between the non-parole period and the full term of sentence.

85. In each case the non-parole period represents approximately two-thirds of the total sentence.

72. I will apply the same ratio to the sentence to be imposed by way of an aggregate sentence.

73. Mr SB, would you please stand?

74. You are convicted in respect of each of the offences, Count 1 and Count 5. You are sentenced to a non-parole period of eight years which will commence from 8 May 2018, being the date when you were refused bail at the conclusion of the trial. You will be, accordingly, first eligible for parole on 7 May 2026. The balance of term is four years, giving a total sentence of 12 years with an eight year non-parole period. The full term of the sentence will expire on 7 May 2030.

75. I have found special circumstances on the basis that this is your first time in custody, that you are likely to spend most of your time in custody in limited association or protection, and that, as I perceive it, you would be assisted by a longer period of parole to assist you in re-integrating into the community, and also in following up with any specific treatment or counselling that might assist you in relation to alcohol and/or sexual offending.

76. I should note that you will not necessarily be released on parole at the termination of the non-parole period. It is a matter for the authorities to determine, largely dependent on your conduct while in custody. There are programs available while in custody, and I highly recommend that you engage in any programs that might assist you in relation to alcohol consumption, and just as importantly, or perhaps even more importantly, in relation to sexual offending.

77. The conditions on which you will be released when you are released at whatever time by the authorities on parole will be determined by the authorities at that time. I am sure you understand that, when released on parole, if you breach the terms of your parole, you will no doubt rapidly find yourself back in custody, serving the balance of term.

78. Thank you; you can sit down, Mr SB.

79. It may be that there are some matters that I have failed to address. If there are, could you please alert me to them? Were there any errors in relation to anything?

Decision last updated: 07 March 2019