R v SN

[2025] NSWDC 280

District Court

New South Wales

Medium Neutral Citation:

R v SN [2025] NSWDC 280

Hearing dates:

21/10/24-5/12/24, 4/3/25, 26/3/25, 8/4/25, 14/4/25, 5/6/25

Date of orders:

5/6/25

Decision date:

05 June 2025

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

See paras 101-103

Catchwords:

Crime – Sentence – Indecent assault – Sexual intercourse without consent – Attempted sexual intercourse without consent – Act of indecency towards – Dissociative Identity Disorder

Legislation Cited:

Crimes Act 1990

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Maxwell v R [2020] NSWCCA 94

Mohindra v R [2020] NSWCCA 340

R v JCW [2000] NSWCCA 209

WG v R; KG v R [2020] NSWCCA 155

Category:

Sentence

Parties:

NSW DPP – Crown
SN - Offender

Representation:

Ms K Mulley for Crown
Mr G Sundstrom for Offender

File Number(s):

19/408682

Publication restriction:

STATUTORY NON-PUBLICATION ORDER RE IDENTITY OF COMPLAINANTS
NON-PUBLICATION ORDER RE IDENTITY OF OFFENDER
NON-PUBLICATION ORDER RE AB’S (REDACTED)

remarks on sentence – ex tempore - revised

1. The offender, SN stood trial by a jury from 28 October 2024 until 5 December 2024. The trial indictment contained 26 counts, although three of the counts were expressed in the alternative. On 5 December 2024 the jury returned guilty verdicts on all substantive counts, avoiding the need for verdicts on any of the three alternative counts.

2. The sentencing hearing was initially set down for 21 February 2025, however this was changed to 4 March 2025 due to an application on behalf of the offender. On 4 March 2025, the proceedings were partly heard which included the reading of the Victim Impact Statement by AB. However, the proceedings were then adjourned based on a joint application by both parties to 8 April 2025 with a s 77 order being made for the offender to appear by audio-visual link. On 8 April 2025, however, the offender did not appear due to a medical issue. The proceedings were adjourned to 14 April 2025 with an order that the offender appear by AVL. On that date, however, the Court was informed that the offender was in a hospital, and although there was consent to him appearing in the proceedings by telephone link, this was not able to be arranged by Corrective Services for reasons that were not explained adequately. The proceedings regrettably had to be adjourned again and have proceeded to final submissions today.

3. The offender must therefore be sentenced for the following 23 offences.

4. Count 1, which is an offence of indecent assault under s 61L of the Crimes Act 1900, which carries a maximum penalty of five years’ imprisonment. Count 2, which is a similar indecent assault offence carrying a maximum of five years’ imprisonment. Count 3, which is sexual intercourse without consent, an offence under s 61I of the Crimes Act 1900, carrying a maximum penalty of 14 years and which has specified a standard non parole period of seven years. Count 5, an offence of sexual intercourse without consent, carrying the same maximum penalty and standard non-parole period. Counts 6, 7, 8 and 9, which are all offences of indecent assault under s 61L of the Crimes Act and carrying a maximum penalty of five years’ imprisonment. Counts 10 and 11 being offences of sexual intercourse without consent under s 61I of the Crimes Act and carrying 14 years maximum and having specified a seven-year standard non-parole period. Count 12, another offence of indecent assault under s 61L, which carries a maximum of five years’ imprisonment.

5. Count 13, another offence of sexual intercourse without consent, carrying a maximum of 14 years and a standard non-parole period being specified at seven years. Count 14, an offence of indecent assault with a maximum penalty of five years’ imprisonment. Counts 15, 16 and 17 being offences of sexual intercourse without consent, carrying a maximum of 14 years and a standard non-parole period of seven years. Count 18, an offence of indecent assault, carrying a maximum of five years’ imprisonment. Counts 20, 21 and 22, which are offences of sexual intercourse without consent, carrying a maximum of 14 years and having a standard non parole period of seven years specified. Count 24 being an offence of attempt sexual intercourse without consent, that carrying a maximum penalty of 14 years’ imprisonment. Because it’s an attempt offence, the standard non parole period does not apply. Count 25 being an offence of sexual intercourse without consent, carrying a maximum of 14 years and a standard non-parole period of seven years. Finally, count 26 being an act of indecency towards the victim, that being an offence under s 61N(2) of the Crimes Act, carrying a maximum penalty of 18 months’ imprisonment.

6. The maximum penalties and, where applicable, standard non parole period or periods are, of course, important guideposts in the sentencing exercise to which I have had regard.

FACTS

7. The facts of the offences for the purposes of sentence are to be determined by me based on the evidence given at trial. The facts that I find must be consistent with the verdicts of the jury. Any matters in aggravation must be proved beyond a reasonable doubt while matters in mitigation need only be proved on the balance of probabilities.

8. The Crown set out as an annexure to its written submissions on sentence a document entitled, “Crown facts on sentence”, which provides a summary of suggested facts derived from the evidence in the trial. While the offender maintains his innocence, counsel for the offender noted that there is no dispute as to the Crown’s summary being an accurate representation of the relevant evidence given at trial. Based in part, on the Crown’s document and, in part, on my own review of the evidence from the trial, I find the following facts.    

9. The offender is the biological father of victims LN and AB. The biological mother of the victims is DN, who is married to the offender. AB (REDACTED) was born (REDACTED) in March 1992, and LN (redacted) born in March 1993. There are other younger children of the marriage. (REDACTED)…………………………………………………………………………………… The family moved to the Newcastle area in August 2009. Immediately prior to that, the family had lived in Cooktown, North Queensland, and before that in Western Australia.

10. Turning, then, firstly to the facts concerning the counts relating to LN, who gave a Victim Impact Statement this morning. Evidence was led without objection in the trial to the effect that LN has Dissociative Identity Disorder, which I will refer to as DID hereafter. The nature of that condition was explained by two expert witnesses called by the Crown at trial, those being psychologist Dianne Kenny and psychiatrist Dr George Blair West. Both experts told the Court that DID is a condition which arises where a child is exposed at a very young age, usually under the age of eight, to recurrent abuse of a most severe kind and that the abuse almost always includes sexual abuse.

11. Dr Blair-West, who interviewed and assessed LN, said he was left in no doubt that LN is correctly diagnosed as having DID.    He explained that a person with DID has quite distinct parts to them and that those various parts have a separation of memory such that each part of the person has its own set of memories. He said that this is the case with LN, who has various “alters” or “system members”. It was on the basis of her diagnosis of DID that LN gave evidence without objection as more than one identity in the trial, each having a different name. Her evidence commenced with her presentation as LN, but shortly after this, she “switched” in the presence of the jury to the alter known as “Em”. LN thereafter gave evidence over numerous days either as LN or as the alter Em, Heather or Maisy, and she was also cross-examined as those various alters.

12. The evidence relating to the offences committed upon LN in New South Wales was given essentially by the identity Em who explained at the time of giving evidence that she was aged 13. Em initially gave evidence about certain events which took place when the family was living in Western Australia and subsequently in Northern Queensland. This evidence included descriptions of the offender, at times together with his wife, engaging in sexual activity with Em before the family moved to New South Wales in August 2009.

13. On the night of the 12 to 13 August 2009, the family stayed at the Jesmond Executive Apartments. The victim, who was then aged 16, was sleeping with her parents in their bed. The offender touched the victim’s chest area, which is the indecent assault offence set out in count 1. The indecent assault that is the subject of count 2 occurred during this same incident when the offender used his hand or fingers to touch the victim on the genital area. In describing this incident, Em said that the two instances of touching by the offender coincided with her mother also holding and/or touching her. However, while this evidence was admissible to provide context, I have taken care to avoid De Simoni error which might arise in treating the offence as an aggravated form of “in company” indecent assault as set out in s 61M of the Crimes Act 1990.

14. Also, in the initial part of her description of this incident at p 252, line 44 of the trial transcript, the victim said that, “…dad was putting his fingers in my private parts. Then he changed and then he put his private parts in my private part”. The suggestion that the offender penetrated the victim’s “private part” - that is, her vagina - with his finger or his own “private part” - that is, his penis - would clearly involve a more serious offence of sexual intercourse and I therefore disregard this aspect of the evidence. I make the same observation and take the same approach to the suggestion that there was digital penetration by a finger. Furthermore, however, it seems to me that in saying, “then he changed”, and by adding the words, “a lot of times”, the victim may have been referring to what happened on another occasion or occasions. In any event and to avoid error, I approach the facts for count 1 on the basis that it comprises only the offender’s individual actions in touching the victim’s breast area and then, count 2, touching the outside of her genital area.

15. The count 24 offence committed against LN of attempted sexual intercourse without consent occurred between about late June 2012 and November 2015 while the family was living in Charlestown. The victim was aged between about 19 and 22 years. During that time period, she would often sleep with her parents in their bed. The offence involved the offender, who was laying down behind the victim, attempting to push his penis into her vagina. The victim, who was pretending to be asleep, moved away from the offender and made a sound when she felt a sensation of pressure between her legs, and no penetration occurred. The offender then pretended to be asleep.

16. Counts 25 and 26 were committed somewhere between November 2015 and January 2017 at a time when the victim was aged 22 to 23 and when the family was living at Cardiff. The victim was asleep in the offender’s bed but was woken when the offender placed his fingers inside her underpants and into her “widgie”, which was a word she used for “vagina”. This is the sexual intercourse offence that is count 25.

17. The count 26 act of indecency offence was occurring at the same time in that the offender was masturbating his penis during which he said, “Oh, LN”.

18. The five specific incidents that make up counts 1, 2, 24, 25 and 26 against LN were not isolated offences because the victim’s evidence, which I accept beyond reasonable doubt, made reference to other sexual offending upon her which was not the subject of charges in the trial. The offender is not to be punished for any such additional offences, but this evidence means that the offences for which the offender is to be punished cannot be regarded as isolated aberrations.

19. Turning then to the facts concerning the counts relating to the victim AB. Counts 3, 5, 6 through to 18 and 20 through to 22 relate to offences that were committed upon AB, who was the offender’s eldest child. (REDACTED) ………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

20. Count 3 is an offence of sexual intercourse without consent. It occurred when AB was aged 17 and the family was staying at the Warners At The Bay Motel sometime between August 2009 and February 2010. The victim was alone in the shower of the motel room while the rest of the family had gone to breakfast. The offender, however, returned to the motel room, entered the bathroom and took off his clothes. He then asked AB if he could join her in the shower, and although AB said “no”, the offender entered the shower regardless. AB tried to stand close to the edge of the shower while the offender effectively barricaded the door with his body, preventing AB from getting out. The offender then pulled AB against him so that the back of her body was against the front of the offender’s body. The offender then touched or rubbed AB’s chest and her genital area, penetrating her vagina and touching her until she orgasmed. AB was not consenting to this conduct, told the offender to stop and tried to pull away from him but was unsuccessful due to their relative sizes.

21. The count 5 offence of sexual intercourse without consent occurred on another occasion and involved the offender penetrating AB’s vagina using a small cylindrical shampoo-type bottle after making her sit on the floor and spread her legs while in the shower at the Warners At The Bay Hotel. AB was aged 17. The offence went on for some time with the victim reaching orgasm. No one else was in the hotel room at the time as the family were either at breakfast or out shopping.

22. The count 6 indecent assault offence occurred during this same time in the shower. The offender took hold of AB’s hand and made her masturbate his penis until he ejaculated.

23. Count 7 is an indecent assault offence committed upon AB when she, again, was 17. It also occurred while the family was staying at Warners At The Bay. The offender entered the bedroom where AB was sleeping with her siblings and told AB to get up off the trundle bed on which she was sleeping, which she did. The offender then laid on the trundle bed and pulled AB on top of him, placing her legs on either side of his body. He then took hold of her hips and made her gyrate over his penis. The offender was wearing underpants and AB was wearing some sort of sleepwear. The incident ended when the offender ejaculated into his underpants.

24. Counts 8, 9, 10 and 11 relate to offences that were committed as part of one extended incident. The victim was aged between about 17 and 19 years and the offence occurred when the family was living at Garden Suburb. The offender’s health at that time had deteriorated and AB was expected to provide care for him as the victim’s mother had gone out with the other children. The victim went into the offender’s bedroom and the offender asked where everyone else was, and when told they had gone out, he said, “Good. We get some alone time”. At that point, the victim tried to leave the room, but the offender aggressively said, “Sit the fuck back down”. After this, the offender took a bottle of lubricant from a drawer and then removed the victim’s shirt and bra and roughly grabbed her breasts and used his mouth to suck on them. This is the indecent assault offence that is the subject of count 8.

25. After this, the offender “dry humped”, to use the victim’s words, the victim by rubbing his genitals against her genital area through clothing for about five minutes. This is the count 9 indecent assault offence. The offender then took the lubricant bottle, which was relatively large, and penetrated AB’s vagina with it for up to ten minutes, causing her pain. This is the count 10 sexual intercourse without consent offence. When the victim did not reach orgasm, the offender became frustrated and used his fingers to penetrate and manipulate her genital area until she did reach orgasm, this being the count 11 sexual intercourse without consent offence. The victim did not consent to any of these actions and explained that the offender was quite scary and could be violent when he became aggressive.

26. Counts 12 and 13 were also part of a single incident. AB was aged between 17 and 19 at the time and the family was living at Garden Suburb. The victim was having a bath. The offender entered the bathroom, undressed and got into the bath with the victim without asking for permission, and making the victim feel uncomfortable. The victim attempted to complete washing herself so that she could get out of the bath, but the offender grabbed her ankles and pulled her closer to him. The offender then began to touch the victim’s genital area and rubbed his penis against her external genitalia. This is the count 12 indecent assault offence. After this, the offender told the victim to get out of the bath and sit on the floor. The offender then positioned himself on the floor while he performed cunnilingus on the victim, although this did not result in her reaching orgasm and the offender left the bathroom and suggested that AB join him in his bedroom, which she did not.

27. The offences in counts 14 and 15 were also part of a single incident. AB was aged 17 to 19 years and the family were still living at Garden Suburb. The offender came into the bedroom where AB was sleeping with three siblings. He lifted up the top that AB was wearing and placed his lips onto her breasts and nipples, this being the indecent assault offence in count 14. The offender then moved his lips towards AB’s groin and used his finger or fingers to penetrate her genitalia, this being the count 15 offence of sexual intercourse without consent.

28. The count 16 offence of sexual intercourse without consent also occurred at Garden Suburb when AB was 17 to 19 years of age. The offender called AB into the toilet where she found him masturbating. The offender then, in a threatening tone, told AB to kneel down and placed his penis into her mouth, after which he grabbed her head aggressively and slid her head up and down on his penis. This went on for up to five minutes until he ejaculated into her mouth.

29. Count 17 also occurred at the Garden Suburb house when AB was aged nearly 19 years. AB was in the shower and the offender entered the shower naked. AB backed up against the wall of the shower, but the offender made her sit down and he sat down also. The offender then dragged AB towards him, placing her legs over his thighs, after which he rubbed his penis against AB’s genitals and said, “If you roll your hips, my cock would slide in”. At that point, the offender’s penis penetrated AB’s vagina to some extent. However, AB then reacted by shoving the offender, getting up and telling him that if he ever tried to put his penis into her vagina again, she would cut off his penis and “shove it up his hole”. AB then left the shower.

30. AB’s evidence in the trial included descriptions of violence to which she was subjected by the offender and which, at times, left her with injuries. This evidence was admitted as context evidence. One example that the victim recalled was when the offender effectively threw her over a sofa, causing her to hit her head on a fireplace after the offender became enraged that AB had not completed household chores. After this incident, AB went to a women’s refuge and then moved to stay with a friend for about six weeks in Fassifern. When this did not work out, AB moved back to the family home.

31. AB described another incident where she was trying to leave the family home with a bag of clothes but was caught and dragged back into the house by the offender. He told her that if she left, she would be going naked as he had bought all of her clothes. During this incident, the offender started to strip AB of her clothes and this resulted in a struggle where the offender threw AB and her head hit a window and cracked it. Due to the violence and abuse in the home, AB moved out a second time and lived in Perth for about eight weeks before returning to the family home. After this, the violence became worse and AB was expected to perform various chores around the house and to give the offender and his wife most of the pay cheque from AB’s employment at Bi Lo.

7. The relationship between AB and LN was also poor around this time because of the practice of the offender and his wife in playing them off against each other, resulting in tension between them. The family ultimately left the Garden Suburb house and moved once more into the Warners At The Bay motel for about a month.

8. The offences in counts 18 and 20 occurred as part of a single incident during this stay at Warners At The Bay. The offender called AB into his bedroom where he was sitting on the bed. He had removed his pants and underpants. The offender took AB’s hand and made her masturbate him to make his penis hard. This is the indecent assault offence in count 18. After this, the offender made AB fellate him by pulling her head up and down on his penis until he ejaculated into her mouth, this being the sexual intercourse without consent offence in count 20. AB, at this time, was aged about 19.

9. The sexual intercourse without consent offence in count 21 also occurred during this stay at Warners At The Bay. AB was in the shower when the offender entered the shower naked. The other family members were out. The offender got AB into a seated position, had her separate her legs and then penetrated her genitalia with a small cylindrical shampoo-type bottle. This went on for some time until AB experienced orgasm. AB was aged 19.

10. Towards the end of 2011 or the start of 2012, the family moved to a house in Adamstown Heights. AB was aged 19 but almost 20 around this time.

11. It was at this house that the last sexual offence involving AB, which is count 22, was committed. AB was in the basement of the house and was called to come upstairs to the bedroom where the offender and his wife were in bed. The offender asked AB to lie down with him, and when AB refused, AB’s mother said, “Do as you’re told”. AB then laid in the bed next to the offender, who was hugging her. Although the hugging was initially innocent and something that AB said she enjoyed, the offender’s hands eventually moved down her body slowly and his fingers made contact with and penetrated her genitalia. AB was, during this time, trying to quietly resist, but did not wish to alert her mother, and was effectively “protecting” the mother from knowing what was happening. The offender slowly masturbated AB, touching her clitoris, and this continued until she reached orgasm. This was the last time that AB was subjected to sexual assault by the offender because shortly after this, she moved to Queensland and never returned to the family home.

12. The specific incidents that relate to the various offences which I have just recited concerning AB were not isolated, because AB’s evidence, which I accept beyond reasonable doubt, made reference to other sexual offending upon her which was not the subject of charges in the trial. The offender is not to be punished for any such additional offences. But this evidence means that the offences for which the offender is to be punished cannot be regarded as isolated aberrations.

OBJECTIVE SERIOUSNESS

38. Turning, then, to the objective seriousness of the various offences before the Court, commencing with those related to LN.

39. There are features of the offences committed on LN which are shared by all of them and which I have taken into account in assessing their objective seriousness, along with the individual facts of each offence. Firstly, all of the offences involved a grave breach of trust and authority given that the offender was the father of LN. It has been said that sexual abuse by a father against his own young daughter involves a breach of trust of the highest order; Maxwell v R [2020] NSWCCA 94. While the offences committed upon LN occurred when she was not particularly young, in my view, they must still be seen as a gross breach of trust and authority. Trust and authority are distinct concepts: Mohindra v R [2020] NSWCCA 340. However, there is a great deal of overlap between trust and authority in this case, and I have taken care not to double-count these aspects.

40. A second common aspect to the offences involving LN is that all of the offences occurred in a location that was the victim’s home where she was entitled to feel safe. There is, however, some degree of overlap, I accept, between the offences being committed in the home, and the fact that they were committed by LN’s father. I have therefore also taken care not to double count these aspects. Thirdly, given the issues that were in contest in the trial and the jury verdicts, I have no doubt that the offender had actual knowledge that his sexual acts involving LN were without consent. Understandably, no submission to the contrary has been made by the offender. Fourthly, I am satisfied that each of the offences were committed against a background in which the victim had been subjected to intimidation, physical and emotional abuse, and isolation, which made it less likely that the victim would resist the offender’s actions. I have taken these matters into account in assessing the objective seriousness of each of the offences involving LN and I will not repeat them when referring to the individual counts.

41. Count 1 involved the offender touching the victim’s breast with his hand. Her evidence did not indicate whether this touching was skin-on-skin or through clothes, and so I approach it on the basis that the touching was through clothing. The victim was pretending to be asleep. The victim was aged only 16 years at the time. I assess this offence as being below the mid-range but not in the lower range of objective seriousness.

42. The count 2 offence involved skin-on-skin touching of the victim’s external genitalia while she was pretending to be asleep. Again, the victim was only 16. In my view, the offence sits slightly below the mid-range of objective seriousness.

43. The count 24 offence of attempted sexual intercourse without consent involved the offender, while the victim was in his bed, attempting to push his penis into her vagina from behind while the victim was feigning sleep. The victim, at that time, was aged between 19 and 22 years. I regard this as an offence that is slightly below the mid-range of objective seriousness.

44. The count 25 offence involved the offender penetrating the victim’s genitalia with a finger or fingers. This penetration commenced when the victim was asleep, after which she froze and remained still. The victim was 22 to 23 years old. I regard this as an offence slightly below the mid-range of objective seriousness.

45. Count 26 involved the offender masturbating himself while he was committing the count 25 offence. I regard this offence as being well above the low range but below the mid-range of objective seriousness.

46. Turning then to the objective seriousness of the offences committed against AB. The offences committed upon AB also share some common features which I have taken into account in assessing their objective seriousness along with the individual facts of each offence. Firstly, all of the offences involved a grave breach of trust and authority given that the offender was the father of AB. While the offences committed against AB were committed when she was aged between about 17 and 21 years and thus not particularly young, they still, in my view, must be regarded as a clear abuse of the trust and authority that attached to the offender, being the victim’s father and a person that, notwithstanding the abuse, the victim looked up to. As I have already observed, trust and authority are distinct concepts but there is a significant degree of overlap between them in this case and I have taken care not to double-count these aspects.

47. A second common aspect to all the offences is that they occurred in a location which was the victim’s home where she was entitled to feel safe. There is, again, I note, some degree of overlap, however, between the offences being committed in the home and the fact that they were committed by the victim’s father. I therefore have not double-counted these aspects.

48. Thirdly, given the issues that were in contest in the trial and the jury verdicts, I have no doubt that the offender had actual knowledge that his sexual acts involving AB were without consent. No submission to the contrary has been made.

49. Fourthly, I am satisfied that each of the offences were committed against a background in which the victim had been subjected to intimidation, physical and emotional abuse, and isolation, which made it less likely that the victim would resist the offender’s actions. I have taken these various common features into account in assessing the objective seriousness of each offence and I will not repeat them when discussing the individual counts.

50. Count 3 involved the offender touching and penetrating AB’s genitalia with his fingers until she experienced orgasm. The victim was aged 17 years at the time. The victim had tried to stay away from the offender, but he used some degree of force by pulling AB against him before penetrating her vagina with his finger or fingers. I regard this as an offence slightly below the mid range.

51. The count 5 sexual intercourse offence involved the offender penetrating AB’s vagina using a shampoo bottle. The victim was aged 17. The victim had tried to push herself away from the offender but was unable to do so as she was effectively trapped in the shower. The offence went on for a considerable time until the victim reached orgasm. The use of an object to penetrate AB’s vagina makes the offence even more degrading than if that aspect had not been present. I regard this as an offence around the mid range.

52. The count 6 offence took place during the same shower incident and involved the offender forcing AB to masturbate him to ejaculation. I regard this offence as being slightly below the mid-range.

53. The count 7 offence also occurred when AB was aged 17 and involved the offender causing AB to rub her genital area against the offender’s penis while both of them were wearing some form of clothing. The offence continued until the offender ejaculated. It is an offence slightly below the mid-range.

54. Counts 8, 9, 10 and 11 all occurred as part of one extended incident when the victim was aged 17 to 19 years. As I have already noted, there is no doubt that the offender knew that each of these offences were committed without the victim’s consent, which explains, in part, why he acted towards her in an aggressive and intimidating way.

55. Count 8 involved the offender groping and sucking the victim’s bare breasts. I regard this as an offence slightly below the mid-range.

56. Count 9 involved the offender "dry humping" the victim's genital area through clothing for a period of about five minutes. Although there is no evidence as to whether the offender ejaculated, I regard this as also being an offence slightly below the mid-range.

57. Count 10 involved the offender penetrating AB's vagina with a larger sized lubricant bottle. The offence went on for up to ten minutes during which the offender was attempting to have the victim reach orgasm. The penetration cause the victim significant pain, and must have been an entirely degrading and traumatising experience. I assess this offence as being within or slightly above the mid-range.

58. Count 11 involved the offender, after he had stopped using the lubricant bottle, using his fingers to penetrate and manipulate AB's genitalia to the point of orgasm. It obviously went on for some time. I regard this as an offence slightly below the mid range.

59. Counts 12 and 13 occurred as part of a single incident when the victim was 17 to 19 years of age.

60. Count 12 involved the offender rubbing his penis against the victim's external genitalia while they were both naked in the bath. The duration of the offence is unclear, but I am satisfied it was not fleeting or momentary. I regard it as an offence slightly below the mid-range.

61. Count 13 involved the offender requiring the victim to sit on the floor of the bathroom while he performed cunnilingus on her. Again the duration is unclear, but I conclude it was not fleeting or momentary. It is an offence that is slightly below the mid-range.

62. Counts 14 and 15 were part of a single incident when the victim was 17 to 19 years of age. They occurred in a room where AB's siblings were sleeping, which would have been an additional source of stress for the victim.

63. Count 14 involved skin-on-skin touching of AB's breasts which is an offence slightly below the mid-range.

64. Count 15 involved digital penetration of AB's genitalia which I regard also as being slightly below a mid-range offence.

65. Count 16 was an offence where AB was required to fellate the offender until he ejaculated into her mouth. The offender acted aggressively and handled AB roughly. I assess this as being a mid-range offence.

66. Count 17 is an offence of sexual intercourse without consent, and involved the offender using his penis to penetrate slightly the vagina of AB while in the shower with her. I assess this as an offence slightly below the mid-range.

67. Counts 18 and 20, as I have noted, were part of a single incident where the offender had called AB into his room where he was essentially naked. The offender then pulled AB towards him and forced her to masturbate him with her hand until his penis was hard. This is the indecent assault offence that is count 18 which I assess as being slightly below a mid-range offence. He then forced her to fellate him, manipulating her head up and down until he ejaculated into her mouth. This is Count 20, which I regard this as a mid-range offence.

68. Count 21 is an offence of sexual intercourse without consent, and involved the offender penetrating AB's vagina using an object. The offence went on for a considerable time until the victim reached orgasm. The use of an object to penetrate AB's vagina makes the offence more degrading than it otherwise would have been. I regard this as an offence around the mid-range.

69. Count 22 is another sexual intercourse without consent offence. This offence involved the offender penetrating AB's genitalia and masturbating her to orgasm while laying next to her in the bed occupied also by AB's mother. The offence clearly went on for a considerable time, and it involved the additional psychological anguish associated with AB trying to conceal what was happening out of concern for her mother. I regard it as a slightly below mid range offence.

70. As I have earlier noted, both LN and AB gave evidence that the sexual offences for which the offender has been found guilty were not the only sexual offences he committed upon them. Having regard to my assessment of each of the witnesses, who I found to be compelling and credible, I am satisfied beyond reasonable doubt that the offences before the Court were not the only sexual offences which the offender committed on LN and AB. While the offender is not to be punished for this other conduct, it means that he is not entitled to have the offences before the Court treated as isolated lapses in an otherwise law-abiding life: see R v JCW [2000] NSWCCA 209.

VICTIM IMPACT STATEMENTS

71. There are three Victim Impact Statements before the Court which were read, one of them earlier this year, and two of them this morning. The Victim Impact Statement of AB provides a very eloquent account of the many adverse consequences which AB has already had to confront, and will continue to confront in life. I am conscious, however, that AB's Victim Impact Statement goes beyond adverse impacts arising from the proven New South Wales offences, and includes reference to events that pre-date those offences. It refers also to consequences which AB attributes not only to the offender's action, but also the actions of the birth mother, and the effects of these things on the family as a whole. This is entirely understandable. It would be unrealistic to expect any victim, and especially one who was being subjected to multiple sexual offences by a so-called caregiver, to be able to identify and catalogue the impact on them of specific offences without making reference to important contextual matters such as many of those referred to in the Victim Impact Statement of AB. However, given the broad range of matters referred to in that Victim Impact Statement, it is appropriate that I approach it with caution. The offender is before the Court to be punished for specific criminal offences and nothing else.

72. The Crown has not submitted that the Victim Impact Statement of AB should be treated as aggravating the offences, and I do not approach it in that way. However, I consider that the Victim Impact Statement of AB provides powerful confirmation of the Court's expectation that offences like those committed upon AB must ordinarily be expected to have serious consequences for the victim. Those consequences will often include a fractured sense of self, a lack of trust in others, problems in forming and maintaining relationships, and engaging in education and employment, as well as many other life struggles. I am satisfied that the offences committed upon AB have had all of these consequences, and that they are matters with which AB will be confronted for many years if not an entire lifetime.

73. In relation to LN there is the Victim Impact Statement in the name of “Em” and a second statement which has been prepared by LN, and which refers to other alters or system members. In my view, those two Victim Impact Statements go substantially beyond the impact of the offences committed in New South Wales for which the offender is to be sentenced. I have therefore not treated the contents of those Victim Impact Statements as aggravating the offences committed upon LN. Specifically I record the fact that I have not acted on any finding that LN's DID condition was caused by the offences committed in New South Wales, given that the expert evidence was to the effect that DID is caused by exposure to severe abuse at a very young age. This condition would therefore have been well-established before the New South Wales offences occurred.

74. However, I note the following comments made in the report of Dr Blair-West of 13 March 2025. Firstly, the doctor refers to the "critical developmental stage that LN was going through" at the time the New South Wales offences were committed. Secondly, he says that, "I have no doubt that the abuse events covered by these proceedings contributed greatly to not just exacerbating her condition of DID, but contributing at a very significant level to her overall long-term distress and disability." Thirdly, there is his opinion that:

"The abuse LN experienced post age 16 hijacked what was potentially a time of treatment, healing and recovery of lost developmental ground. It turned this critical period of psychosocial and psychosexual health into the very opposite, i.e. a significant multiplication factor on her degree of longer term psychological, social and sexual disability."

75. Offences like those before the Court in relation to LN can ordinarily be presumed to cause serious harm, with the harm often being of a kind that I have already made reference to when discussing the offences against AB. However, I am satisfied, based on the report of Dr Blair-West, that the offences have resulted in substantial harm to LN beyond the harm that would ordinarily be expected from such offending. I do not regard there to be any double counting involved in taking both the presumed harm and the actual harm described by Dr Blair-West into account: see R v Packer [2023] NSWCCA 87 at para 82.

SUBJECTIVE MATTERS

76. The offender's subjective case has been placed before the Court by means of some written material. The psychological report of Laura Durkin notes the following relevant matters.

77. The offender was born in Zambia of British parents, and his father worked initially in the mining industry there until the family moved to Perth. The offender's upbringing was stable, and his parents were supportive and loving. He was not subjected to neglect, abuse or exposed to domestic violence or drugs and alcohol.

76. The offender struggled at school, partly due to the family moving regularly, and he left school at the end of year 10 and commenced an apprenticeship as a chef. He later left this industry and worked in various jobs before joining the Navy where he met his wife. They have five biological children, and the two victims are the oldest of those children. After the offender and his wife left the Navy, the offender worked on the railways, and it was during this time that he suffered a motor vehicle accident which he claimed resulted in a number of ongoing problems. The offender received a compensation payout arising from this accident, but the psychologist, Ms Durkin, notes that in recent years he has been receiving a Disability Support Pension.

77. Letters of support from the offender's wife and son refer to the offender having suffered "brain damage", however I attach no weight to these medically unsupported assertions except to the extent that they are given some support by the comprehensive review of a range of material considered in the report of the psychologist, Ms Durkin. The psychologist notes that understanding the offender's physical and mental issues is complex. She makes reference to multiple reports summarised by neuropsychologist, Dr Amanda White, suggesting that psychological issues account for much of the offender's presentation, and that he has engaged in feigning various physical and cognitive complaints. The Psychologist Ms Durkin notes however that the offender denied feigning. Ultimately Ms Durkin notes that the nature of the offender's cognitive and physical complications, and whether he has engaged in feigning is not the focus of her report.

78. She also considered the suggestion that the offender has been diagnosed with Post-Traumatic Stress Disorder. She concluded on the basis of her interview that there is insufficient evidence to support that diagnosis, but did accept that the offender has experienced some symptoms of PTSD that have affected his mental state and functioning to some extent. She concludes that the offender's experience of PTSD symptoms may contribute somewhat to the feigning of other conditions. I accept the psychologist's conclusion that the offender has experienced some trauma related symptoms, and that these have affected his mental state and functioning to some extent.

79. Ms Durkin does not, however, suggest that the offender's mental state contributed to his offending. She does refer to his recent poor health since going into custody, and notes that he experienced a significant cardiac event during his trial, which I note required a procedure to fit a pacemaker. Ms Durkin notes that the pacemaker apparently is causing the offender some discomfort, and he described feeling his heart “stop and reset”, and having crushing pain in his chest at times. She notes that these issues, at least at the time of her report in March, have apparently not been explored medically, and that there was no clear evidence of them being managed properly through treatment. She notes also that the offender's other health conditions are apparently similarly being poorly managed in custody at present, and that he does present a "falls risk". I take all of those matters into account, and I will say something further about them in a few moments.

80. In my view, there is nothing, however, in the offender's background which serves to explain, let alone mitigate, the seriousness of any of his offending. I am satisfied that each of the offences involved very deliberate actions where the offender preyed on his two children for his own selfish and depraved sexual gratification. There is nothing in the evidence before me that reduces the offender's moral culpability which I consider to be very high.

81. The offender is now aged 58. He has no criminal history in New South Wales, and only very minor offences in Queensland and Western Australia. I approach his history on the basis that he has no relevant prior criminal antecedents.

82. It was submitted that he is entitled to be treated as a person of prior good character, based on the lack of any relevant prior criminal history, his age, and his participation in the community. I do not, however, accept that the offender is entitled to have the penalty for his offences mitigated on the basis of good character. Firstly there is the fact that the multiple offences before the Court were committed over a period of about six or seven years against his two biological children. The offences and their duration in themselves speak loudly against any conclusion that the offender is or was a person of otherwise good character. Secondly there is the evidence of the two victims, who were compelling and credible witnesses, to the effect that the offences of which the offender has been convicted were not the only sexual offences that were committed. Thirdly there is the victims' evidence that they experienced various forms of physical and emotional abuse by the offender in the period prior to the family coming to New South Wales, and in New South Wales. For these reasons I do not accept that the offender should be treated as a person of prior good character.

83. Of course, he is not to be punished for other acts which go beyond the offences for which he has been convicted, but he is not entitled to leniency by reason that the offences before the Court can be treated as isolated aberrations in an otherwise blameless life.

REMORSE, RISK AND REHABILITATION

86. The offender maintains his innocence, and so there is no remorse. He retains apparently the support of his wife and his two younger children, as well as a young man to whom he has acted as a type of foster-parent. This continued support is a relevant factor which I have taken into account in my assessment of the offender's future prospects and risk.

87. He has been assessed by means of the LSI-R assessment tool as being a medium low risk of re-offending, and according to the Static 99 tool he is a below average risk compared to other male sex offenders. The psychologist, Ms Durkin, however suggests that he is overall a moderate risk of future sexual offending. Having regard to these assessments, as well as the offender's age, his physical condition, the time he will spend in custody, and his limited exposure to opportunities to re-offend, I accept that his risk of re-offending is medium.

88. In the face of his outright rejection of the findings against him, and the serious and prolonged nature of the offending, I regard his prospects of rehabilitation as being uncertain or guarded.

HARDSHIP IN CUSTODY

89. The psychologist notes that the offender's experience of custody is challenging, and that he is also vulnerable by reason of his health issues, and his risk of falls. There is, however, as the psychologist indicates at paras 42-43 of her report, some uncertainty about the nature and cause of the offender's physical presentation. However, on balance I accept, and I have taken into account, that his experience of the custodial environment has been and will continue to be more difficult than for an inmate without his issues.

90. The offender at age 58 is not an old man by today's expectations. Nonetheless he is not young, and he does experience some health problems including seizures or seizure-like events, and some cardiac issues. Given the sentence that I will impose, there is some risk that he may pass away before being released to parole. However, there is no sentencing principle which requires that a sentencing court should impose a sentence which provides some prospect of an offender being released before his or her death. Rather, the fundamental principle is that the sentence must adequately reflect the totality of the criminality before the Court: see R v Holyoak (1985) A Crim R 502 at 507.

DETERMINATION

91. In determining the ultimate sentence and the indicative sentences, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I do not intend to recite the various paragraphs or purposes that are set out in that section. Suffice to say that all of them are relevant. I am satisfied for the purposes of s 5 of that Act that no penalty other than full-time imprisonment is appropriate for each of the offences.

92. I intend to impose an aggregate sentence. I make a finding of special circumstances to adjust the ratio between head sentence and non-parole period to some degree. I have done this on the basis of the offender's health issues, and this being his first time in custody. The adjustment, however, will not be great, given that I have already taken into account these matters as part of the overall synthesis that I must perform in this sentencing exercise.

93. In determining the ultimate aggregate sentence, I have given close consideration to the principle of totality, and the extent to which there should be some notional accumulation among the sentences for the individual offences.

94. Determining the ultimate aggregate sentence is, of course, not a matter of just adding up all the indicative sentences and imposing the sum of those terms. Totality principles require that the sentence I impose should not be an inappropriately crushing one. On the other hand, it is also important that the sentence not give the appearance that the offender is receiving a discount for multiple offending: see WG v R; KG v R [2020] NSWCCA 155 at para 1519. Where a sentence for one offence could comprehend and reflect the criminality involved in another offence, the general principle is that there should be notional concurrency. If not, then there should be at least some partial accumulation, so as to reflect the separate and discreet criminal actions.

95. A significant number of the offences before the Court were committed as part of a single incident in which the offender committed a number of sexual acts as part of that incident. This applies, respectively, to counts 1 and 2, counts 5 and 6, counts 8 to 11, counts 12 and 13, counts 14 and 15, counts 18 and 20, and counts 25 and 26. In these instances I have applied either no notional accumulation, or only limited notional accumulation.

96. Given the number of offences for which the offender must be sentenced, applying the totality principle must involve some degree of compromise. There will need to be only relatively moderate increases by reason of notional accumulation so as to avoid a crushing sentence.

97. In determining the indicative sentences and the ultimate aggregate sentence, I have had regard to statistics kept by the Judicial Commission of NSW, as well a significant number of decisions of the NSW Court of Criminal Appeal.

98. I have been asked to make Apprehended Domestic Violence Orders of a final nature in relation to each of the victims, and Mr Sundstrom, you had nothing to say about that?

99. SUNDSTROM: The only issue, your Honour, we sought instructions about that, and the defendant understands that the Court can make those orders regardless of his views. However, he has indicated to us that he doesn't consent. He is maintaining his innocence. That's the basis for that, your Honour.

100. HIS HONOUR: Thank you. It was submitted by the Crown that it would be appropriate to make a final Apprehended Domestic Violence Orders for a time which extended for five years beyond the expiry of the head sentence. I note that the provisions in s 39 of the Crimes (Domestic and Personal Violence) Act 2007 provide for two years to be the general period unless the Court specifies some other period, being satisfied that there is good reason to do so. Given the sentence that I will be imposing, I do not see the need to extend the orders for five years, and I will make them for a period of two years. They will extend for two years beyond the expiry of the head sentence.

101. Given that I am imposing an aggregate sentence, I need to set out the indicative sentences for each of the individual offences. These are not the ultimate sentence. I will make the ultimate sentence clear in a few moments. The indicative terms are as follows - these are all terms of imprisonment, of course:

- For count 1, 16 months.

- For count 2, two years two months.

- For count 3, five years three months, and I specify a non-parole period of three years six months.

- For count 5, five years nine months. I specify a non-parole period of three years ten months.

- For count 6, two years two months.

- For count 7, two years one month.

- For count 8, one year ten months.

- For count 9, two years.

- For count 10, six years, and I specify a non-parole period of four years.

- For count 11, five years three months, and a non-parole period is specified of three years six months.

- For count 12, two years three months.

- For count 13, five years eight months, and a non-parole period of three years eight months.

- For count 14, one year nine months.

- For count 15, five years one month, and a non-parole period of three years five months.

- For count 16, five years ten months, and a non-parole period of three years 11 months.

- For count 17, five years two months, and a non-parole period of three years five months.

- For count 18, two years.

- For count 20, five years ten months, and a non-parole period of three years 11 months.

- For count 21, five years nine months, and a non-parole period of three years ten months.

- For count 22, five years three months with a non-parole period of three years six months.

- For count 24, four years six months, and a non-parole period of two years 11 months.

- For count 25, five years, and a non-parole period of three years three months.

- For count 26, indicative is seven months.

102. As I have already said, the ultimate aggregate sentence does not involve the process of simply adding up those figures because that would lead to a crushing, and inappropriately so, sentence. As I have already said, applying totality principles does involve and must involve a significant degree of compromise.

103. The offender is convicted. I impose a head sentence of 21 years imprisonment. I impose a non-parole period of 14 years. Those will date from 5 December 2024. The head sentence therefore will expire on 4 December 2045. The non-parole period will expire on 4 December 2038. The apprehended violence orders will expire on 4 December 2047.

104. MULLEY: Just to confirm, your Honour, 2047?

105. HIS HONOUR: Yes.

106. MULLEY: And there is one final order that the Crown seeks, your Honour, and that is a fingerprint order pursuant to s 74 of the Crimes (Forensic Procedures) Act.

107. HIS HONOUR: All right, I will make that order. All right, anything else?

108. MULLEY: No, your Honour, thank you.

109. HIS HONOUR: Thank you, the Court will adjourn.

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Decision last updated: 30 July 2025