R v SR

Case •

[2023] NSWDC 431

•

02 March 2023

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v SR [2023] NSWDC 431
Hearing dates: 03 February 2023
22 February 2023
02 March 2023
Decision date: 02 March 2023
Jurisdiction:Criminal
Before: Wilson SC DCJ
Decision:

1. the offender is convicted of the offences in respect of which the offender pleaded guilty;

2. sentence the offender to full-time imprisonment for a period of 16 years, to commence on 29 September 2021 and expire on 28 September 2037;

3. set a non-parole period of 12 years, to expire on 28 September 2033.

Catchwords:

SENTENCING – Penalties – Imprisonment – Plea of guilty – Totality – Victim impact statement – No insight – No remorse – Poor prospects of rehabilitation – Aggravating factor, the abuse of position of trust or authority

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Muldrock v R [2011] HCA 39

Category:Sentence
Parties: R (Crown)
SR (Offender)
Representation: Counsel:
Crown: Mr Fagan
Offender: Mr Metcalfe
File Number(s): 2021/00277881
Publication restriction:

Non-publication order re identity of complainants.

Suppression order in respect of identity of complainants pursuant to s 578A of the Crimes Act.

JUDGMENT

INTRODUCTION

  1. The offender appears today to be sentenced in relation to a number of offences committed over a period of time spanning about 21 years. There are three distinct acts. The first concerns his biological daughter, who I shall refer to as EH. Before I proceed, I should also make it an order that this matter is to be referred to as SR, not by the full name of the offender. I further remind that the suppression non-publication orders apply in respect of the children complainants, both pursuant to statute and pursuant to an order which I now make.

  2. EH was born on 6 June 1993. The offending took place between March 2000 and April 2006 when she was approximately the ages of seven through to 13. The offender was born 17 December 1968. There is an age differential between them of 24 years.

  3. The next offending took place against AC, who was the daughter of a woman with whom the offender was in a relationship. AC was born on 22 August 2008. The offending took place between June and November 2016 when she was about eight years of age. The age differential is about 40 years.

  4. The next offending took place in March to June 2020. The victim was TH. Again, the offender was in the relationship of stepfather/stepdaughter to the victim, who was born 21 March 2014. The offending took place March to June 2020 when the victim was approximately six years of age, the age differential is about 45 years.

  5. The remainder the offending took place on 28 August 2021. There were three victims. First, there was EC, born 24 July 2013. At the time of the offending, she was seven years of age and there is an approximate age differential 45 years.

  6. On the same day, the offender also abused AD, who was born on 4 July 2009. At the time, she was 12 years of age. There is an age differential of some 40 to 41 years.

  7. And finally, the last victim shall be known by the initials AW. She was born 1 December 2008. And again, the offending took place 28 August 21, when she was about 12 years of age and there is an age differential approximately 40 years.

  8. There are eight principal offences for sentence, some of which have charges attaching by a form 1. The first relates to TH and it is a charge of intentionally incite a child under the age of ten years to sexually touch them. That is a sequence 3, a breach of s 66D(b), maximum penalty 16 years imprisonment, a standard non-parole period of eight years imprisonment.

  9. Next, according to the Crown’s sentence summary is sequence 15, involving EH. The charge is commit an act of indecency with a victim under the age of ten, in breach of s 60(2) of the Crimes Act, maximum seven years imprisonment.

  10. Next is sequence 6, involving EH. It was a charge of indecent assault of a victim under the age of ten, in breach of s 61M(2), the maximum penalty is ten years imprisonment.

  11. The next charge is sequence 14. The victim again, EH. The charge is aggravated sexual intercourse with person greater or equal to the age of ten and under the age of 14, in breach of s 66C(2) of the Crimes Act, it carries a maximum penalty of 20 years imprisonment.

  12. Sequence 12 involved the victim, AC. The charge was indecent assault of person under the age of 16 years, in breach of s 61M(2) of the Crimes Act, it carries a maximum penalty of ten years imprisonment and standard non-parole period of eight years imprisonment.

  13. Sequence 17 involves the victim, AD. It is a case of a charge of intentionally sexually touch a child at or above the age of ten, under the age of 16 years, in breach of s 66DB(a) of the Crimes Act, it carries a maximum penalty of ten years in prison.

  14. Sequence 20 involves the victim, EC. The charge of intentionally sexually touch a child under the age of ten, in breach of s 66DA(a) of the Crimes Act. The maximum penalty is 16 years imprisonment and the standard non-parole period eight years imprisonment.

  15. And the final charge for sentence is sequence 22, involving the victim, AW, intentionally sexually touched a child at or above the age of ten years and under the age of 16, in breach of 66DB(a), it carries a maximum penalty of ten years imprisonment.

  16. As mentioned, there are charges placed on Form 1 documents, which I have signed, certifying that I will take these charges into account when sentencing the offender in respect of the charges to which they attach.

  17. The first is sequence 1, which attaches to sequence 3. The charge is intentionally touch/sexually touch a child under the age of ten in breach of s 66DA(a), the Crimes Act. The victim was TH. The Maximum penalty is 16 years imprisonment, and standard non-parole period of eight years imprisonment applies.

  18. The next charge on a Form 1 is sequence 8 attaching to sequence 14. Aggravated indecent assault of a victim under the age of 16, in breach of s 61M(1) of the Crimes Act. The maximum penalty is seven years imprisonment and the standard non-parole period, five years.

  19. The next charge on a Form 1 is sequence 9, which attaches to sequence 14. Aggravated indecent assault of a victim under the age of 16 years, in breach of the same section, 61M(1) of the Crimes Act. It carries the same penalty, maximum sentence of seven years of prison and a standard non‑parole period of five years imprisonment. The victim in respect of that matter was DH.

  20. The next charge on a Form 1 is sequence 10, it attaches to sequence 12. Indecent assault of a person under the age of 16 years, in breach of s 61M(2) of the Crimes Act. Ten years imprisonment is the maximum penalty. Eight years imprisonment is the standard non-parole period.

  21. Sequence 16 attaches to sequence 12. That is, commit an active of indecency with a victim under the age of ten. It carries the maximum penalty pursuant to s 61O(2) of seven years imprisonment.

  22. Sequence 19 attaches to sequence 17. The victim in that case is AD. Intentionally sexually touch a child at or above the age of ten and below the age of 16, in breach of s 66DB(a). The maximum penalty is ten years imprisonment.

  23. And finally, sequence 21 attaches to sequence 20. Intentionally sexually touch a child under the age of 10, in breach of s 66DA(a). It carries a maximum penalty of 16 years imprisonment and a standard non-parole period of eight years imprisonment.

  24. Sequences 2, 4, 5, 7, 11, 13 and 18 are withdrawn by the Crown and are now dismissed.

Form 1 Charges

  1. By signing the certificates attached to the Form 1 documents, I confirm that I have taken those charges into account for the principal offences to which they attach. The charges on the Form 1 are to be taken into account with a view to increasing the penalty, which otherwise may have been imposed in respect of the charge to which they attach.

  2. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, and the second is the community's entitlement to exact retribution from an offender for serious offending.

Guideposts

  1. The maximum penalties and the standard non-parole periods are both guideposts for sentencing judges, indicating the seriousness with which the community, through Parliament, views the offending. There is no doubt that this is very serious offending.

  2. In relation to those matters which carry a standard non-parole periods, I will take those terms into account as part of the determination of sentence. The standard non-parole period applies to an offence found within the middle range of objective seriousness for such an offence, taking into account only objective factors, without bringing into account factors that are unique to the offender or the class of offenders. Ultimately, the standard non-parole period is but a factor to be taken into account together with the objective and subjective matters considered in synthesis as discussed by McHugh and McTiernan JJ in Muldrock v R [2011] HCA 39.

  3. Even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will apply or that there shall be a percentage calculation performed where the offence might be found lower on the scale of seriousness. The process is not arithmetical, it is more intuitive.

  4. In my opinion, applying the standard non-parole periods in this case would result in a sentence which, even allowing for concurrency, would be unduly onerous.

Circumstances of Aggravation

  1. In respect to those charges, which include circumstances of aggravation, namely sequences 14, 8 and 9, the relevant circumstances of aggravation was the fact that the child was under the authority of the offender either as his biological child or stepchild.

Commencement Date

  1. The offender has been bail refused since his arrest on 29 September 2021. The sentence will be backdated to commence at that time.

AGREED FACTS

  1. The statement of agreed facts commences with the offender's date of birth (17 December 1968) and the identity and dates of birth of the various complainants, which I have already referenced. EH is the biological daughter of the offender. TH was a stepdaughter of the offender. AC was a stepdaughter of the offender. EC was a stepdaughter of the offender, but not at the time of the offending. AD and AW were friends of AC and not otherwise connected to the offender.

  2. I will recite the facts in the order in which they have been agreed. The first complainant, TH, in 2019/20. TH’s mother was in a relationship with the offender around March 2020. They moved in with the offender to his residence in Gosford. The following facts relate to sequence 1, intentionally sexually touch a child under ten.

  3. At some time between 1 March 2020 and 22 June 2020 at the address in Gosford, TH and the offender were in the bath together. Whilst in the bath, the offender touched TH’s vagina.

  4. The following facts relate to sequence 3, also involving TH. Sometime between March and June 2020 and whilst at that same address in Gosford, they were again, in the bath together. Whilst in the bath, the offender has told TH to touch his penis. When she refused, he grabbed her hand and placed it on his penis. She was aged between five and six at the time of the offending.

  5. The following facts relate to the victim EH. As a result of the investigation into TH, the police became aware of an investigation in 2006 into the child sexual assault upon EH by the offender. As mentioned, they are biologically connected as father and daughter. The victim's mother was in a relationship with the offender on and off between 1991 and about 2001.

  6. The earliest that EH can recall the offending upon her was when she was aged either seven or eight years of age, and they were living in a place near Cessnock in New South Wales. The offender lived with his mother in a two-story residence at Woy Woy for a few months at some stage between 2000/2003. When EH visited the offender at his mother's Woy Woy residence, she would sleep in the same bed as the offender.

  7. The following facts relate to sequence 15. Sometime between 6 March 2000 and 6 March 2002, at the address near Cessnock, the victim’s brother had an allergic reaction and was taken to hospital by their mother. They remained there for the night. The other two other children had been put to bed, leaving just the victim and the offender awake. The offender had a shower and came out with the towel wrapped around his waist. He and EH were watching a film. The offender sat in a reclined position on the lounge next to the victim. She commented that she felt itchy all over her body because her nightgown had fleas because of their dog. The offender told her to remove her nighty, which she did, leaving only her underwear.

  8. The victim lay with a head on the offender’s lap/stomach. The offender opened his towel and exposed his erect penis near EH’s head. He asked her to touch his penis, which she did using her hand. EH was then aged about seven or eight.

  9. As mentioned, the relationship between the mother and the offender ended around 2001/2002. The children primarily live with their mother. However, they did regularly spend time with the offender.

  10. The following facts relate to sequence 6. Sometime between 6 March 2002 and 6 March 2003, at an address in Empire Bay, EH was at the offender's house visiting her siblings. EH’s siblings were asleep on the offender's bedroom floor.

  11. The offender and EH were in his bed. The offender rubbed EH’s vagina inside her underwear on the outside of her vagina. EH, said she experienced feelings that were new to her and she constantly felt as though she needed to go to the toilet but in fact, did not actually need to. Her grandparents were in the living room watching television while this occurred. At the time, EH was around the age of nine.

  12. The following facts relate to sequence 14. Sometime between 1 January 2005 and 30 April 2006, EH was at the offender's house at Woongarrah, in either her bedroom or the offender's bedroom, reading a book. The offender came into the room while EH was laying on her back reading. He lay on the bed and performed cunnilingus on her. At that time, she was aged between 12 and 13 years of age.

  13. Sequence 8 followed sequence 14. The offender then wanted the victim to touch his penis. He unzipped his pants, removed the tip of his penis and exposed it to her. He took hold of her hand and had her stroke his penis a couple of times. The victim then went limp to pretend that she was asleep and as if nothing was happening. She was at the age of about 12 to 13 at the time.

  14. Sequence 9 is that sometime between 1 January 2005 and 30 April 2006, EH was at the offender's house in Woongarrah watching a movie on the floor with him. Both were under a blanket facing each other almost stomach to stomach but not completely on their sides. The offender had the victim cuddled up next to him with his arm around her and her head resting on his chest. The offender slid his hand under the shirt and moved it towards the victim's chest. The offender then kissed the victim on her mouth and neck. The victim looked over the offender's shoulder towards the stairs and thought, “What would happen if the kids came down?” At the time, the victim was aged between 12 and 13 years.

  15. Around May 2006, the victim, EH, disclosed the offending to her Uncle Billy, her mother and the police.

  16. The victim wrote a long message to her Uncle stating that she was being molested by her father. The uncle then phoned the mother who then talked to the victim. The victim could not vocalise what was happening when speaking with her mother as she was too upset and crying. So, she wrote, “When I was younger, dad molested me.” That was written on a tissue with an unhappy face. Notwithstanding the involvement of the police, regrettably, nothing was done about the offender at that time.

  17. The following facts relate to AC. AC’s mother met the offender around 2014 and was in an intimate relationship with her at times. In 2016, the mother and her two daughters then aged seven and EC aged about two to three years, resided with the offender at an address and Kariong for about six months, between June and November 2016.

  18. AC and EC had two beds in a makeshift bedroom in a corner of the lounge room sectioned off by cupboards. This was opposite the offender's bedroom which he shared with the mother.

  19. The following facts related sequence 10. Whilst residing with the offender, there was a night when the mother left AC in the care of the offender, and she went out. The offender directed AC to sleep in his bed as opposed to where she normally slept and during the night. AC awoke to the offender pulling down her pyjama shorts and underwear. Her pants were pulled down exposing her genitals. AC pulled her pants back up and saw the offender laying down on his side of the bed pretending to be asleep.

  20. The following facts relate to sequence 16. During the time that AC was residing with the offender, she was lying on her bed in the makeshift bedroom. The offender came into that room to say good night. After saying good night, he pulled the front of his pants down exposing his penis. He placed his hands on his penis and moved it up and down wiggling it around. The offender was laughing as he did this, and AC turned her head and looked away. The offender then left.

  21. The following facts relate to sequence 12, also involving the victim AC. During the period that AC resided with the offender, she was laying across the lounge on her back watching television. The offender stood behind the lounge and reached over the top of the lounge and use one hand to rub both of AC’s breasts on the outside of her clothing.

  22. The next victim will be referred to as AD. After the mother of AC moved out of the offender's premises with her two daughters, the mother and the offender recommenced a friendship whereby the offender would visit her and her daughters on a regular basis over the years.

  23. On Saturday, 28 August 2021, the offender attended an address, the mother's address in San Remo for a gathering; the offender was intoxicated at this time. Throughout most of the night, AC, EC and several of AC’s friends were sitting in the lounge room watching television.

  24. The following children will be referred to by their initials, AD, AW and AC. Throughout the night the offender moved between the lounge room and outside with the adults. However, he spent most of the time in the lounge room with the children. The other adults in attendance at San Remo were the mother of AC, her then boyfriend, and the mother of AD. Later in the night, the mother of AW was also present.

  25. In the lounge room there were one two-seater recliner lounge, a two one‑seater recliner chairs, all of which face the television in a row. The one‑seater recliner chairs were adjacent to one another. At one stage, AD was cuddling a cat in her arms whilst sitting down on one of the one-seater recliner chair.

  26. The following facts relate to sequence 17. The offender, who was sitting in the adjacent one-seater recliner chair, reached over and began touching the cat but also touched AD on her breasts while doing so. Following this, another adult drove the offender to a bottle shop at Northlakes so he could buy more alcohol. Shortly after, another adult and the offender returned to San Remo. AC, AC, AD and EW began watching a movie in the living room. Whilst the offender was sitting in the living room, he began grabbed grabbing at AD’s exposed stomach.

  27. The following facts relate to sequence 19. The offender then touched AD on the upper thigh on the outside of her clothing with his left hand. AD then threatened to kick the offender in the face and then walked away.

  28. The next victim to be referred to is EC. Around the time of the offending just mentioned, EC was also sitting with the other girls in the loungeroom. The offender then started touching EC on her head, back and neck.

  1. Sequence 20 relates to when the offender touched EC just above and to the side of her vagina, very close to her vagina before she moved his hand away.

  2. The following facts relate to sequence 21. When EC moved the offender's hand away, the offender touched her near both of her breasts. EC then said to the offender that she needed to go to the toilet and went outside.

  3. Sequence 22 relates to the victim, AW. Around the same time, that is, at San Remo, the offender touched AC on the bottom while in the backyard whilst the offender was sitting down, and AC was standing. The adults were outside in the backyard around a fire pit. AC and AD felt uncomfortable around the offender given his behaviour. Some time after 10.30pm AC informed her mother about the offender’s behaviour that night and then disclosed what the offender did to her when they lived with him in the past.

  4. AC attended the Central Coast Child Abuse Unit on 2 September 2021 and participated in an electronically recorded interview where she disclosed the above. The offender was arrested on 29 September 2021 at Gosford Police Station. Those are the agreed facts.

Victim Impact Statement

  1. Exhibit V is a victim impact statement which was read in Court by DH, that is, the biological daughter of the offender.

  2. I gave careful consideration to what was said by the victim when she read the statement. I have since re-read the statement myself and have had regard to it. Out of respect to the victim, I do not intend to repeat what appears in her victim impact statement save to observe that the conduct of the offender has had an ongoing and severely detrimental impact upon his daughter; his first victim.

SUBJECTIVE CASE

Criminal History

  1. Next, forming part of exhibit A is the offender's criminal history. In 1984, he appeared in the Children's Court in relation to some matters. I do not intend to refer to those matters given that he was a child and the time which has elapsed since then.

  2. In 1993 he appeared in the Wyong Local Court and was convicted of assaulting a female. Those are the only convictions which are recorded in the offender's criminal history. Those convictions, whilst they disentitle the offender to finding a good character and any leniency which may flow, they do not aggravate this subject offending.

Report by Sarah Brann, Psychologist

  1. The offender relied upon a report by Sarah Brann, psychologist, dated 25 January 2023, following an AVL conference with the offender on 18 January 2023. The report is of limited use. The author was not required for cross-examination, nor did the offender give evidence as to the accuracy of its contents.

  2. In terms of any relevant family or developmental history, there was reference to the fact that SR was potentially exposed to domestic violence within his parents’ relationship prior to their separation. Given the manner of expression “potentially”, I do not place any weight upon that statement.

  3. He seemed to have a good relationship with his mother and his subsequent stepfather. He moved out of home at the age of 16 to live closer to work and became more independent. His childhood and education were generally unremarkable. He began working at the age of 15 in a car yard as a panel beater/spray painter. Upon release, he intends to reconnect with his former employer whom he has known for some 15 years.

  4. His medical history is generally unremarkable. He suffered migraines from the age of 14. There was some evidence of scarring on his arms, which was sustained through self-cutting which he commenced at the age of 50 and continued on and off for a few years.

  5. He attributed self-harm to stress about money, employment, feeling lonely and conflict with his children. He did not include reference to the fact that he had sexually abused a number of his victims prior to that time. The offender is a big drinker. At the San Remo offending, he was affected by alcohol which of course, does not mitigate the offending.

  6. About 35 years ago he abused recreational substances such as amphetamines and cocaine once or twice a week. He blamed his intake upon the influence of his then partner.

  7. At paragraph 24 of the report, the psychologist stated, “It appeared that SR lacked insight into his social difficulties.” He described having eight significant romantic relationships. He has six children from two relationships. His four oldest children were born between 1993 and 1996. Their relationship breaking down about 2000 due to conflict and him working six days a week. He had fortnightly contact with his children through Family Court arrangements.

  8. He indicated to the author of the report that he had full-time custody of his two youngest children, currently age 17 and 19, since separating from their mother in 2005. Apparently, he maintains weekly phone calls to his children from custody.

  9. Paragraph 26 of the report attracted some consideration in the course of the sentence hearing. Included in paragraph 26 is that he stated that having 50 or 60 sexual partners over his lifespan, which would mostly involve one-night stands. The author said, “This indicates that most of your sexual experiences have been superficial and lack commitment or emotional connection.” He denied engaging in regular masturbation throughout his life, offering a preference of intercourse. He also denied using pornography.

  10. Then it is stated, “They may have reduced his access to healthy sexual outlets particularly during the COVID-19 pandemic lockdowns.” It was post COVID on 28 August 2021 that the San Remo offending took place. I do not accept that his access to healthy sexual outlets around that time in any way justifies or excuses his behaviour.

  11. He denied having any difficulties initiating conversations with strangers, namely women, in order to access sexual intimacy and no problems initiating sex or relationships. He further denied issues indicative of difficulties inhibiting sexual impulses or social preoccupation such as the use of sex workers and infidelity.

  12. Paragraph 28 of the report reads, “Regarding SR’s sexual interests, he denied any paraphilic interests or sexual preference for children or young persons.” However, as will be further discussed, there is compelling evidence to the contrary. I find the offender's denial of having a sexual interest in children to be completely unbelievable and I reject it. He has demonstrated an interest in children since March 2000 and has acted upon it on a number of occasions as the facts establish. The statement he made to the psychologist was plainly a lie designed to play down or otherwise mitigate the seriousness of his offending. Plainly, he is in denial about being a paedophile.

  13. Returning to COVID, it is stated that SR indicated that in the lead up to his 2021 sexual offending, his access to healthy sexual outlets had been limited due to COVID-19 lockdowns. Again, the relevance of that is difficult to understand.

  14. Notwithstanding the complete absence of any acceptance of responsibility (other than through his guilty plea) and insight into his offending, and notwithstanding his denial that he is a paedophile, the offender apparently indicated to the psychologist that he would participate in any recommended sex offender or alcohol-related treatment as he was motivated to gain release from custody. The psychologist stated he is not internally or genuinely motivated towards treatment (that is, he does not identify as having problems which he believes he needs help or support in addressing.) This highlights the complete lack of insight which this offender has in respect of his offending and his sexual interest in children. It reflects poorly upon any prospects of rehabilitation and also causes concerns about the risk of reoffending. Notwithstanding the guilty plea, I am unable to find that the offender is remorseful.

  15. The psychologist performed some testing which indicated an average risk of reoffending. Given my earlier observations, that is, in my view, an understatement.

  16. Paragraph 49 of the report, the psychologist refers to the fact that the offender began sexually abusing his biological daughter when she was around the age of seven or eight, and the abuse became gradually more intrusive over time. Several of his further sexual offences were precipitated by him forming a relationship with an intimate partner who had children and a period of likely building trust with the offender precedes incidents of sexual offending. It is stated:

“There appears to be sexually inappropriate behaviour with some familial victims (such as SR exposing his penis and laughing while ‘wiggling it around’) that represents, likely, boundary testing as to how the potential victim may react to more intrusive forms of sexual offending.”

  1. Again, I consider that to be an understatement. However, it does reflect the psychologist’s opinion that that form of offending was likely to lead to more intrusive forms of sexual offending.

  2. The most recent offending in 2021 at San Remo is referred to in paragraph 50 of the report. The psychologist states SR’s more recent sexual offending in 2021 seemingly occurred after a period where he was unable to access adult sexual partners for casual sex due to COVID-19 lockdowns and, in the one evening he sexually assaulted numerous female child victims who were not family, and who were seemingly not well known to him whilst numerous adults were close by. This represents a shift in several noted aspects of the sexual offending.

  3. Further, in paragraph 50 it is stated:

“Without being able to discuss the sexual offences directly with SR, as he was asked not to by SR’s solicitor, it is unclear if his 2021 sexual offending represents a form of coping with loneliness due to being unable to access adult sexual outlets or whether he was impulsive and opportunistic in acting upon deviant sexual interests and desired sexual gratification.”

  1. The suggestion that the offending took place due to loneliness occasioned by COVID is utter rubbish and I reject that view. This man is not a COVID paedophile, he is a paedophile of long standing. Plainly, the offending was opportunistic. He was acting upon his perverted sexual interest and desire to sexually abuse children for his own sexual gratification.

  2. In paragraph 52, the psychologist appears again to explain away the perverted conduct of this offender. It is stated:

“The factors that perpetuate or have maintained SR's sexual offending over time, include his deviant sexual interest in children, access to potential child victims, alcohol abuse, and impulsivity, hostility towards women, weakened social connections and lack of healthy sexual outlets and the lack of negative or legal consequences for his history of sexual offending.”

  1. His most recent sexual offending in 2021 indicates that he does pose a risk to children with whom he does not have an established trust and rapport with. Again, the reference to lack of healthy sexual outlets is a reason for offending which I reject. It is plain that this offender's conduct is due entirely to his long established deviant sexual interest in children.

  2. Various recommendations were made by Ms Brann as to some courses which the offender might undertake. It seems to me that given his denial of his condition that he is unlikely going to take such courses, and if he does, they are unlikely to be of assistance to him.

  3. The victim impact statement was read out by his biological daughter on 3 February 2023 at the sentence hearing. I note that at transcript page 4, after acknowledging the courage which the victim had shown in reading the statement, I made the following observation, “I also observe that the offender remained emotionless and seemingly unmoved throughout the reading of the victim impact statement.” That further cements my opinion that he is completely without insight or remorse. It was accepted by Mr Metcalfe of counsel for the offender, that he lied when the offender told the psychologist about not being interested in children which reflected poorly upon his credit.

  4. Ultimately, the report of Ms Brann was relied upon for just three propositions, which are referred to at transcript page 10, line 23. One, that he has an average or moderate risk of reoffending. Two, that the expert thinks he suffers a paedophilic problem. And three, that he would benefit from counselling. I have already made findings regarding those matters.

  5. Mr Metcalfe accepted at transcript 13, line 1, “The effects of all this” - and that was a reference by me to the contents of the psychologist report - “is that the psychologist identifies masturbation, pornography and COVID as been contributing factors.” Again, for reasons which I do not accept, counsel for the offender referred to the end of lockdown as creating the opportunity for the offender to sexually offend at the San Remo event. I do not accept that COVID or any lockdown had any bearing upon this paedophilic offending which had been long standing.

  6. Mr Metcalfe, counsel for the offender, did not attempt to make a positive submission regarding contrition insight or remorse, see transcript 19.

SECTION 5 THRESHOLD

  1. It was conceded that the s 5 threshold was crossed. I find that no sentence other than one of imprisonment to be appropriate. I accept that he is entitled to receive a discount of 25%, given the timing of his guilty plea. It was proposed by Mr Metcalfe that an aggregate sentence between seven to nine years would be appropriate. With respect, I do not accept that submission.

CROWN SUBMISSIONS

  1. I am assisted by written submissions from the Crown and by Mr Metcalfe. They both made submissions concerning the objective seriousness of at least the principal charges for sentence. The Crown has also made submissions regarding the age differential, matters which I have already made reference.

  2. The Crown submitted that pursuant to s21A(2)(K), the abuse of position of trust or authority is an aggravating factor. That would only apply in respect of his daughter and stepdaughters namely, EH, TH and AC.

  3. I note in relation to the sequence 14, that the circumstance of aggravation was the fact that the victim, his daughter, was under his authority. I did not find that s 21A(2)(k) applies in respect of the charges which are aggravated by being under authority namely, sequences 14, 8 and 9, as that is an element of those offences.

  4. I do accept, however, that in respect of the other offences against his daughter and stepdaughters, the aggravating factor of abusing a position of trust or authority do exist. In terms of the sequences in respect of which under authority is the circumstance of aggravation, the nature of the relationship, that is, father to daughter/stepdaughter, highlights the extent of the abuse which does bear upon the objective seriousness of the offending.

OFFENDER’S SUBMISSIONS

  1. I was also assisted by submissions by Mr Metcalfe, counsel for the offender. He warned me against double counting in relation to the abuse of trust and authority. I accept that submission. He made submissions concerning the objective seriousness of the offending, and also made a submission concerning special circumstances suggesting that as it is the offender’s first time in custody, I ought to vary the ratio of parole to non‑parole so as to release the offender from prison earlier.

  2. As will be apparent, the sentence which I intend to impose is one which will leave the offender with a sufficient period on parole to deal with any questions of reintegration or treatment. So, even if I were to find special circumstances, I would not vary the ratio.

FORMULATION

Objective Seriousness

  1. Turing to the question of objective seriousness. In relation to sequence 3, that is, the offending against TH, who was relevantly, his stepdaughter at the time. The victim was just five or six years of age. The offender was about 52. There was an age gap of some 47 years. The offence provision contemplates a range of ages from birth through to the age of ten. This offending took place when the victim was about midway in that range. There was physical contact between the offender's penis and the hand of the victim. Also relevant, is the fact that it occurred in the home of the victim and in a domestic context. I also have had regard to the fact that the offending is aggravated by the breach of trust and authority.

  2. The Crown submitted well above mid-range. The offender has submitted just below mid-range. Having regard to the fact to which I have just referred, I find the offending is just above the mid-range objective seriousness.

  3. Sequence 15 is the first charge for sentence involving his daughter, EH. It occurred when she was just seven or eight years of age. The offender was in his 30s. The age range contemplated by the offence provision is up to the age of ten. The victim was in the upper half of that range.

  4. Relevant to the assessment of objective seriousness is that it occurred within a domestic environment; it occurred in the home. It involved skin‑on‑skin contact with the victim being forced to touch the penis of the offender. It involved the breach of trust and authority. The Crown submitted mid-range. The offender has submitted just below mid-range. I find the objective seriousness in respect of sequence 15 to be at the mid-range.

  5. Sequence 6, again his biological daughter. She was about the age of nine in an offence provision which ranges from the ages of birth up to the age of ten. There was an age differential of somewhere between 20 and 25 years. There was a skin-on-skin contact in that the offender, using his hand or fingers, rubbed her vagina. It took place in the home, in fact in his bed, an environment in which she is entitled to expect safety and protection.

  6. The offender breached the trust and authority shown in him by this offending. The Crown submitted, in fact both the Crown and the offender has admitted, that it was just below the mid-range. I accept that joint submission and make that finding.

  7. Next is sequence 14. The victim again, is his biological daughter. She was 12 or 13 years of age at the time, again, the age difference was around 20 to 25 years. The age range contemplated by the offence provision was between ten and 14 years, so the victim fell about midway in that range. It involves oral vaginal contact, as the offender performed cunnilingus on his daughter. It occurred in the home, a place where his daughter is entitled to expect to be safe and free from victimisation.

  8. Instead, the offender betrayed the safety of her environment by engaging in this act of gross depravity. As under authority is an element of the offence, I did not take that into account. As an aggravating feature however, it plainly is a matter which impacts the objective seriousness as does the breach of trust. The Crown submitted just above mid-range. The offender submitted just below mid-range and an indicative term of four years. Given the factors which I have made reference, I find the objective seriousness of the offending falls just above the mid-range.

  9. In relation to sequence 12, the victim, AC, was the stepdaughter of the offender. He touched her breasts on the outside of her clothes. She was aged just 12, in the age range for the offence provision of between ten and 16 years. So, she was towards the younger end of that range. It occurred in the home, again, a place where AC was entitled to expect to be safe. The offending was entirely opportunistic and occurred over her clothing but in a domestic environment. Having regard to those factors, I find that the objective seriousness falls at the mid-range.

  10. Sequence 17 involves the victim, AD. This is the first of the San Remo offences. AD was born in July 2009. There is an age difference between them of some 31 years. When the offending occurred, she was about the age of 12 in the age range for the offence provision of ten to 16 years.

  11. The offending took place in the home, which is an aggravating factor. The offending was entirely opportunistic and performed over her clothing. It is not clear from the facts whether it took place in the presence of any other child, and I declined to find that as an aggravating factor. The Crown submitted that it was within the mid-range. It was submitted for the offender it fell just below the mid-range. I accept the submission for the offender and find the objective seriousness of sequence 17 to be just below the mid-range.

  1. Sequence 20. The victim, EC, was formerly his stepdaughter, but at the time of the offending there was no familial relationship between them. So, there was no authority or trust which was relevantly breached in the sense which might aggravate the offending. She was aged just seven years of age, in an offence provision contemplating a range of up to ten years of age.

  2. He touched just above and to the side of her vagina, very close to her vagina. The Crown submitted within mid-range. On behalf of the offender, it was submitted towards the lower end of the range. I find the objective seriousness of sequence 20 to fall just below the mid-range.

  3. And finally, sequence 22 involving the victim, AW. She had no relationship with the offender. She was simply at the function that occurred at San Remo on 28 August 2021. She was born on December 2008. She was 12 years of age at the time of the offending, about 31 years younger than the offender himself. He touched her on her bottom, it being an intentional sexual touch. Plainly, it was opportunistic. It was submitted for the Crown that was below the mid‑range, for the offender, that it was low level. I find that it fell at the low‑range of objective seriousness for offending of that type.

  4. Turning to the form 1 offences. First, sequence 1 which attaches to sequence 3. The victim was TH, his stepdaughter. She was aged about six years of age, in an age range for the offence provision of between birth and ten years. The age difference was about 45 years. They were in the bath together and he touched her vagina. There was direct skin-on-skin contact. I find the objective seriousness of the sequence 1 to fall just above the mid‑range.

  5. Sequence 8 attaches to 14. This involves his biological daughter EH. After performing cunnilingus on his daughter, he wanted her to touch his penis. He removed his penis from his pants and put her hand on his penis stroking it a couple of times. She was aged about 12 to 13 years of age, in an offence provision contemplating a range of up to 16 years. The age difference was, as previously mentioned, about 24 years or thereabouts. In my opinion, the objective seriousness of that offending falls just above the mid-range.   

  6. Sequence 9 involved offending against his biological daughter. It is an aggravated indecent assault of a victim under the age of 16. The aggravation is the fact that she was under his authority as she was 12 to 13 years of age at the time. It occurred under a blanket in the home when he kissed around the mouth and neck area.

  7. Sequence 10. The victim is AC. She was at the time his stepdaughter in 2016, she was about eight years of age. Age differential about 40 years. He pulled her shorts down, exposing her genitals, she pulled them back up. Again, it occurred in the home. I find the objective seriousness to be just below the mid-range.

  8. Next is sequence 16. The victim again was his stepdaughter. She was in her bed when he pulled his pants down exposing his penis, moving it up and down wiggling around. She turned her head away, there was no physical contact. She was about eight years of age at the time. It occurred in the home. I find that the objective seriousness of sequence 16, based on the circumstances I have just referred to, falls just below the mid-range of objective seriousness.

  9. Next is sequence 19, which attaches to sequence 17. This involves the victim, AD, who had no relationship with the offender. It occurred at the San Remo gathering on 28 August 2001. She was 12 years of age. The section contemplates a range of ten to 16 years. He touched the upper thigh on the outside of the clothing. I find the objective seriousness of that offending falls well below the mid-range.

  10. And finally sequence 21. The victim was DC, who, at the time of the offending had no relationship with the offender. After touching her near her vagina, he then touched her near both of her breasts. She was around the age of eight. I find that offending to fall well below the mid-range of objective seriousness.

Purposes of Sentencing

  1. Section 3A of the Crimes (Sentencing Procedure) Act sets out the purposes for which a Court may impose a sentence on an offender as follows:

  1. punishment. That is, to ensure the offender is adequately punished. There is no doubt that this offender requires stern punishment and in this case that is paramount;

  2. deterrence, to prevent crime by deterring the offender and other persons from committing similar offences. The sentence which I will impose will reflect the need for both specific deterrence and general deterrence. The need for specific deterrence is heightened by the obvious absence of any remorse or insight on the part of this offender;

  3. protection. That is to protect the community from the offender. I am mindful of the remarks by the psychologist that the offending became more brazen in that he was offending people other than those with whom he had a familial relationship. There is no doubt that this offender is a sexual predator. He has taken advantage of a class of persons, perhaps the most vulnerable members of our community, namely children, and, in particular, his own daughter. The community must be protected from people like this offender who behave in such a vile and occurrent manner;

  4. rehabilitation. That is, to promote the rehabilitation of the offender. Given my earlier findings about rehabilitation, the risk of reoffending and the complete absence of any insight, I do not place much weight on rehabilitation as a purpose for sentencing in this case;

  5. accountability, That is, to make the offender accountable for his actions, he has shown, no remorse, no regret for his offending. The sentence therefore must be stern and directed towards making him accountable for his conduct. Something which she has to date not been willing or prepared to do other than through his guilty plea;

  6. denunciation. That is, to denounce the conduct of the offender. It is trite for me to say, but this offender’s conduct offended all sensibilities of decent society and requires stern denunciation;

  7. to recognise the harm done to the victims and the community. In this regard, concerning the victims, I have taken into account the harm suffered by his biological daughter, as revealed in the victim impact statement which she bravely read at the sentence hearing.

  1. I find that no sentence other than one of full-time custody or imprisonment is appropriate in the circumstances. Whilst I acknowledge that there are circumstances which may give rise to a finding of special circumstances, I do not intend to vary the ratio of non-parole for parole for the reasons previously indicated. In the sentence which I propose, I consider the parole period is sufficient to permit his rehabilitation, if any, and any reintegration into the community without adjusting the ratio.

  2. I am mindful of the need for proportionality and totality in sentencing, and so far as some of the offending relates, there should be some concurrency. But at the same time, the sentence should reflect the fact that there are some six victims of this offender’s depraved offending, which justifies considerable accumulation. At the same time, I do not wish to impose a sentence upon the offender which is crushing.

  3. As previously mentioned, I do not intend to apply the standard non‑parole periods as they would result in a sentence which was unduly harsh.

Indicative Terms

  1. I intend to impose an aggregate sentence. Before doing so, I am required to provide indicative terms and, where they exist, indicative non-parole periods.

  2. The indicative terms I have adopted are as follows. In relation to sequence 3 with the form 2 charge attaching, I provide an indicative term of four years with an indicative non-parole period of three years. The indicative term of four years is after the discount of 25% has been applied.

  3. In relation to sequence 15, committing an act of indecency, after the discount of 25%, I provide an indicative term of three years.

  4. In relation to sequence 6, again, after the 25% discount, I provide an indicative term of three years.

  5. In relation sequence 14, that is, the aggravated sexual intercourse, the occasion upon which she performed oral sex on his young daughter and with two charges attaching by way of Form 1 documents, that is sequences 8 and 9, after a discount of 25%, I provide an indicative term of eight years.

  6. In relation to sequence 12, that is, indecent assault a person under the age of 16, with two charges attaching by way of Form 1 documents, namely sequences 10 and 16, I provide an indicative term of three years after discounts and indicative non-parole period of two years and three months.

  7. In relation to sequence 17, to which a charge attaches by way of Form 1, that is sequence 19, I provide an indicative term after discount of two years.

  8. In relation to sequence 20, with Form 1 attaching, after discounted, I provide an indicative term of two years and an indicative non-parole period or 18 months.

  9. In relation to sequence 22, intentionally sexually touch a child at or above ten under 16, after discount, I provide an indicative term after discount of one year.

Totality

  1. Having provided the indicative terms, I am now required to stand back and form a view as to totality. That is, to impose an overall sentence which in the circumstances is just and appropriate, having regard to the totality of the offending behaviour.

  2. Considering that matter, I observe the offending does not involve a single course of criminal conduct. Whilst a number of the events occurred at the San Remo address, they involved different victims. The offending against his daughter occurred over a period of time.

  3. The fact that the offending against DH involved just one victim, and without wishing to downplay the abhorrent nature of the offending and the impact it has had upon the victim, there is a need for some concurrency as between those matters. Similarly, in relation to the San Remo offending, given those offences were temporarily close, there is a justification for some degree of concurrency, otherwise, there should be accumulation reflecting the separate acts and separate victims involved.

SENTENCE

  1. SR, you are convicted of the offences in respect of which you have pleaded guilty. That is, intentionally incite a child under the age of ten to sexually touch you, commit an act of indecency with a victim under the age of ten, indecent assault of a victim under the age of ten years, aggravated sexual intercourse of a person at or above the age of ten and below the age of 14, indecent assault of a person under the age of 16, intentionally sexually touch a person at or above ten years and under 16 years, intentionally sexually touch a child under ten years, intentionally sexually touch a child at or above the age of ten and below the age of 16.

  2. For those convictions, I impose upon you an aggregate sentence comprising a head sentence of 16 years and a non-parole period of 12 years. The sentence will date from 29 September 2021, when you went into custody. The earliest release date is 28 September 2033. And the head sentence will expire 28 September 2037.

High Risk Offender Warning

  1. You are a serious sex offender and therefore a high-risk offender. I am required to inform you that at the expiration of your non-parole period you may be required to submit to supervision in the community pursuant to an extended supervision order, or alternatively, you may be required to remain in custody until the state parole authority considers it appropriate for you to be released.

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Decision last updated: 02 November 2023

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Muldrock v The Queen [2011] HCA 39