R v SR

[2019] NSWDC 479

District Court

New South Wales

Medium Neutral Citation:	R v SR [2019] NSWDC 479
Hearing dates:	Trial dates: 14 to 20 August 2018Verdict: 26 April 2019Sentence Hearing: 5 September 2019
Date of orders:	16 September 2019
Decision date:	16 September 2019
Jurisdiction:	Criminal
Before:	Lerve DCJ
Decision:	Sentenced – see [74]-[75]
Catchwords:	Criminal – sentence – sexual assault on child – indecent assault on child – act of indecency -
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act, 1900
Cases Cited:	R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 Bravo v R [2015] NSWCCA 302 Burchell (1987) 34 A Crim R 148 Cahyadi v R, (2007) 168 A Crim R 41; [2007] NSWCCA 1 Holyoak v The Queen (1995) 82 A Crim R 502 Jolly v R [2013] NSWCCA 76 R v Madely [2018] NSWDC 35 MC v R [2017] NSWCCA 316 McPhillamy v The Queen [2018] HCA 52 Mills v R [2017] NSWCCA 87 MLP v R (2006) 164 A Crim R 93 R v Muldoon unrep. NSWCCA 13.12.1990 R v PGM [2006] NSWCCA 310 RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 R v Van Ryn [2016] NSWCCA 1 Woodward v R [2017] NSWCCA 44
Category:	Sentence
Parties:	Director of Public Prosecutions SR
Representation:	Counsel: Mr M Pincott Crown Prosecutor at trial Mr R Keller (Offender) on sentence   Solicitors: Ms L Hanshaw (Crown) Mr S Mortimer, Legal Aid Commission (defence)
File Number(s):	2017/272429
Publication restriction:	The court reminds all concerned that the relevant legislation provides that there must be no publication of the names of the complainants or anything that might identify them. For this reason given the familial relationship the name of the offender has been initialised.

sentence

The court reminds all concerned that the relevant legislation provides that there must be no publication of the names of the complainants or anything that might identify them.For this reason given the familial relationship the name of the offender has been initialised.

1. The offender was found guilty of a total of twenty one offences of child sexual assault where the four victims were his nieces. The evidence commenced on 14 August 2018 and concluded on 21 August 2018. The matter involved an argument relating to tendency evidence. On the application by who then appeared for the accused and without any particular opposition from the Crown the matter was adjourned until the reasons in the matter of McPhillamy v The Queen [2018] HCA 52 were made available. There were issues relating to counsel’s availability. Reasons in the trial were given on 26 April 2019. Counsel who appeared for the accused at the trial retired in June 2019 and new counsel had to be instructed for the sentence proceedings.

2. I will insert a table setting out the relevant number of each count on the indictment, the short form of the offence, the dates of the offences with the relevant section of the Crimes Act, 1900 and the maximum penalty and a note of the standard non-parole period if one applies to that offence. The numbers of the counts are not necessary sequential as there were alternative counts pleaded on the indictment. I will refer to the victims by their initials in order to maintain their anonymity.

Offences relating to TM

Count	Short form of offence, section number and date of offence	Maximum penalty and SNPP if appropriate
1	Attempt Sexual Intercourse with a Child Under 10 Section 66B Crimes Act 8 February 2000 – 31 December 2000	20 years imprisonment
3	Sexual Intercourse with a Child Under 10 years Section 66A Crimes Act 8 February 2000 – 31 December 2000	20 years imprisonment
4	Commit Act of Indecency Towards Child Section 61O Crimes Act 8 February 2000 – 23 October 2001	7 years imprisonment
5	Incite Act of Indecency Section 61O(2) Crimes Act 8 February 2000 – 25 February 2002	7 years imprisonment
6	Sexual Intercourse with a Child Under 10 years s. 66A Crimes Act 8 February 2000 – 25 February 2002	20 years imprisonment
7	Attempt Sexual Intercourse with Child Under 10 Section 66B Crimes Act 8 February 2000 – 25 February 2002	20 years imprisonment
9	Commit Act of Indecency Towards Child Section 61O Crimes Act 8 February 2000 – 25 February 2002	7 years imprisonment
10	Indecent Assault on child Under 10 Section 61M(2) Crimes Act 1 January 2003 – 31 December 2003	10 years SNPP 5 years as from 1 February 2003
11	Incite Act of Indecency Section 61O Crimes Act 1 January 2003 – 31 December 2003	7 years imprisonment
12	Attempt Sexual Intercourse with Child Under 10 Section 66B Crimes Act 1 January 2003 – 31 December 2003	20 years imprisonment 25 years from 31 January 2003

Matters involving TN

14	Indecent Assault on Person Under 16 years s 61M(2) Crimes Act 25 August 2008 - 21 March 2009	10 years imprisonment SNPP 8 years
15	Indecent Assault on Person Under 16 years s 61M(2) Crimes Act 25 August 2008 – 21 March 2009	10 years imprisonment SNPP 8 years

Matter relating to JN

16 Sexual Intercourse with Child Between 10 and 14 years s 66C(2) Crimes Act 3 January 2010 – 17 January 2010 20 years imprisonment

Matters relating to AN

17	Sexual Intercourse with a Child Under 10 s 66A Crimes Act 25 August 2008 – 11 February 2009	25 years imprisonment SNPP 15 years
18	Sexual Intercourse with a Child Under 10 by Person in Authority s 66A(2) Crimes Act 3 January 2010 – 17 January 2010	Life imprisonment SNPP 15 years
19	Sexual Intercourse with a Child Under 10 by Person in Authority s 66A(2) Crimes Act 10 January 2010 – 17 January 2010	Life imprisonment SNPP 15 years
20	Sexual Intercourse with Child Under 10 by Person in Authority s 66A Crimes Act 3 January 2010 – 17 January 2010	Life Imprisonment SNPP 15 years
21	Sexual Intercourse with Child Under 10 by Person in Authority s 66A(2) Crimes Act 12 February 2010 – 11 February 2011	Life imprisonment SNPP 15 years
22	Sexual Intercourse with Child Under 10 by Person in Authority s 66A(2) Crimes Act 12 February 2010 – 11 February 2011	Life Imprisonment SNPP 15 years
23	Sexual Intercourse with Child Under 10 by Person in Authority s 66A(2) Crimes Act	Life Imprisonment SNPP 15 years
25	Sexual Intercourse with Person between 10 and 14 years s 66C(1) Crimes Act 11 February 2012 – 22 December 2012	16 years imprisonment SNPP 7 years.

3. The offender pleaded not guilty to all matters and went to trial. Accordingly there can be no discount or consideration for any plea of guilty. This is not to suggest that the penalty is increased because the offender put the Crown to proof but rather there can be no consideration or discount for any plea of guilty.

4. A number of matters for which the offender appears for sentence carry standard non-parole periods. In determining the appropriate sentence I acknowledge that I am engaged in a one-step instinctive process in which two of the principal guideposts are the maximum penalty and the standard non-parole period.

5. It is agreed between the parties that the offender has been in continual custody in respect of these matters since 7 September 2017. This is a matter that is appropriate for an aggregate sentence. The sentence and the non-parole period will date from 7 September 2017.

Facts and objective seriousness

6. Given the number of matters for which the offender appears for sentence it is appropriate that I make a finding as to the objective seriousness of each matter as I deal with the facts relating to that matter. Before going to the facts I will go to some matters of general principal relating to the issue of objective seriousness.

7. Simpson J (as her Honour then was) said in R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24]:

“It is not possible to create some kind of hierarchy of the seriousness of the various kinds of sexual intercourse contemplated by s 66A and defined by s 61H. It is the facts and circumstances of each case including the nature of the intercourse that makes the proper evaluation of objective seriousness”.

8. In Jolly v R [2013] NSWCCA 76 Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72]:

“…The nature of the sexual intercourse which occurs in offending of this nature should not be considered in isolation, and then ranked in some form of hierarchy (see R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL).”

9. Generally, the younger the victim the more serious the offence will be regarded – see for example R v AJP at [35], R v PGM [2006] NSWCCA 310 at [36] and RJA v R [2008] NSWCCA 137; (2008) 185 A Crim R 137 at [14].

10. In Bravo v R [2015] NSWCCA 302 Hulme J (Beazley P, Johnson J agreeing) said at [42]:

“As was observed in R v Gavel :

‘[97] … It is erroneous to attempt to rank forms of sexual intercourse in some hierarchy so as to determine their objective seriousness. The objective seriousness of offending is to be determined according to the entirety of the facts and circumstances of the case in question: Doe v R [2013] NSWCCA 248 at [54]; Simpson v R [2014] NSWCCA 23 at [33]-[34].’”

11. His Honour went on to say at [45]:

“45   … Similarly, the absence of an aggravating feature of physical violence does not operate in mitigation. The same can be said about the absence of physical pain, humiliation and threats. These arguments are akin to saying, “the offence is less serious because it could have been more serious”. As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452:

“[3]    It is a well-established common law sentencing principle that the absence of a factor which would elevate the seriousness of offending in a particular case is not a matter of mitigation. In plain language, it does not make what has been done by an offender less serious because it could have been worse.””

12. In Mills v R [2017] NSWCCA 87, R A Hulme J (Leeming JA and Beech-Jones agreeing), in addition to referring again to Grove J’s statement in Saddler, said:

“57   Much of the applicant's argument under this ground was devoted to pointing out matters which were absent that, if present, might have made the offence more serious than it was. However, because a matter of aggravation is not established beyond reasonable doubt it does not follow that a matter of mitigation is established (Filippou v The Queen [2015] HCA 29; 256 CLR 47 at [66]-[69]). The fact that it is possible to identify factors which are absent which if present would have made the offence more objectively serious does not make the offence less serious than it is: Mammone v R [2013] NSWCCA 95 at [35]. As Grove J put it succinctly in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3], “In plain language, it does not make what has been done by an offender less serious because it could have been worse.”

13. Fullerton J in her judgment in R v PGM at [36] cites with apparent approval Kirby J in MLP v R (2006) 164 A Crim R 93 at [22], in that:

“…The section is concerned with the protection of the vulnerable from sexual exploitation and violation. No doubt, as a generalisation, the younger the child the more defenceless and vulnerable. However, the entire class of children under the age of 10 years is vulnerable”.

14. Her Honour was of course considering the offence of Sexual Intercourse with a Child Under 10 years of age.

15. Mr Keller in his oral submissions at the sentence hearing on 5 September 2019 without going into any specifics in respect of any of the counts put that the offending was either in the mid-range or slightly above mid-range. The Crown helpfully has provided a table (MFI 3 on sentence) on which a comment is made in respect of each count as to where the Crown says the matter falls on the scale of seriousness. There is not a great deal in dispute between the parties so far as the objective seriousness of the offending is concerned.

16. Consistent with the verdicts I returned at the conclusion of my reasons on 26 April 2019 I find the following facts proved beyond reasonable doubt. I will deal with the facts of the various matters in the order in which the counts appear on the indictment.

17. Counts 1, 3, 4, 5, 6, 7, 9, 10, 11 and 12 relate to the complainant TM. The offending occurred between February 2000 and December 2003. Counts 1 and 3 arise out of the one ongoing episode. The offender is a maternal uncle of the victim. At the relevant time the offender was living with the family at a house in a town in southern NSW (“B”). The complainant was 5 or 6 years of age at the time. The complainant was in the bath with a sister. The offender entered the bathroom, got the victim’s sister out of the bath and told the victim’s sister to go to her mother, which she did. The offender then obtained another towel and put it on the floor and told the victim to hop out of the bath and lie on the floor, which she did. He knelt in front of her and said words to the effect of, “this won’t hurt” and then proceeded to attempt to digitally penetrate the victim’s vagina with his index finger. The victim flinched and the finger did not actually penetrate the victim’s vagina. The victim said, which I accept, that it hurt. The offender then engaged in an act of cunnilingus with the victim.

18. The victim was aged 5 or 6 and the offender 39 or 40 years of age. The matters involve a breach of trust noting the familial relationship. The Crown submits (MFI 2 on sentence) that the victim is vulnerable. I note the comments of Fullerton J in R v PGM from which I have earlier extracted. The age of the child is taken into account in the assessment of the seriousness of the matter. 

19. The attempted sexual intercourse was digital. The attempt was all but successful noting that the victim said that it hurt. Noting this and in particular the age of the victim the matter is above mid-range. Count 3 relates to an act of cunnilingus. Again, noting the age of the victim it too is above mid-range.

20. Count 4 occurred at the local garbage tip where the offender worked out of a caravan on site. On one occasion the victim and her brother visited the offender where he was working. The victim wished to play with her brother but the offender said that she could not. While in the caravan the offender unzipped his jeans and exposed his penis to the victim. The victim was 5, 6 or 7 and the offender was between 39 and 41. Again there is the issue of the breach of trust. This matter is at the upper end of the mid-range of seriousness.

21. Counts 5, 6, 7 and 9 all arise out of the one ongoing episode of offending that occurred at the offender’s flat. Arrangements were made for the victim and her brother to go to the offender’s flat after school. The victim’s brother was playing with a PlayStation or a SEGA and the victim was playing with the offender’s dog in the offender’s bedroom. The offender entered the room and closed the door. He then pulled out his penis and told the victim to touch it and she did so (count 5). Immediately following that the offender told the victim to put her mouth on his penis and she did so (count 6). The offender then placed the victim on his bed, pulled down her pants and attempted to have penile/vaginal intercourse with her (count 7). The victim said that she was flinching and it hurt. The offender’s penis was erect. The offender then masturbated to ejaculation and ejaculated on to a sock that he picked up from the floor (count 9).

22. In each of those matters the victim was 5, 6 or 7 and the offender aged between 39 and 41. The attempt to which count 7 relates was all but successful noting that the complainant said that she flinched and it hurt. The victim was under the authority of the offender although this is not an element of the offences. There is the breach of trust. Noting the conduct and the age of the victim, count 5 is above mid-range. Count 6 is within the mid-range. Count 7, noting the nature of the attempted intercourse and that the attempt was all but successful is above mid-range. Count 9 involves the offender masturbating to ejaculation in front of a young child. The matter is well above mid-range.

23. Count 11 and 12 occurred the day after count 10. The offending to which those counts relate occurred at a time when the offender was living at the home of the victim. The victim was 8 or 9 years of age when the offending to which count 10, 11 and 12 occurred. The complainant gave evidence about count 10 after her account of counts 11 and 12. Specifically relating to count 10 there was an occasion when the victim was in the offender’s room. They were both sitting on the bed. The offender placed his left hand on the victim’s vaginal area on the outside of her clothing and rubbed in a circular fashion. Given the age of the victim, noting that the section contemplates a victim under 10, and the conduct, noting that the victim was clothed, the matter is slightly below mid-range.

24. In respect of count 11 the offender called the victim to his room and showed her some necklaces. He asked her whether she liked any of them and she nominated one that she did. He then said that he would give her one. The offender exposed his penis and asked the victim to touch it. She said no and put her hands behind her back.

25. Immediately after that the offender told the victim to lie down on the bed and she did so. He pulled the victim’s pants and underpants down to her ankles and attempted to digitally penetrate the victim’s vagina. She moved away because it was hurting. The victim’s brother arrived at the bedroom and the offender told him not to say anything. The victim pulled up her pants.

26. In respect of count 10 the offender exposed his penis. The victim was 8 or 9 and there is the issue of breach of trust. The matter is within the mid-range. Given what the victim said about it hurting, this attempt too was all but successful. Noting the nature of the intercourse, the age of the victim and the circumstances to which I have referred this matter is within the mid-range.

27. In respect of counts 1, 2, 10, 11 and 12 the offending occurred in the victim’s home.  However, the offending having occurred in the victims' home is is one of many factors that go to inform the objective seriousness of the matters. The practical effect so far as the total sentence and non-parole period is concerned would be the same whether the common law principles or s 21A(2) is applied to the matter.

28. Counts 14 and 15 relate to the complainant TN. These offences occurred at the home at [B] and occurred between 25 August 2008 and the end of 2008. There was an occasion when the complainant was being piggy-backed by the offender from the yard to inside the house. While the complainant was being so carried the offender moved his hand in a backwards and forwards type motion on the complainant’s vaginal area on the outside of her clothing. This is count 14. The victim was 7 years of age and there is the issue of the breach of trust. The offender was 48. The matter is below mid-range but not significantly so.

29. Count 15 relates to an incident that occurred in a motor vehicle in the yard of the premises at B. The complainant was sitting on the offender’s lap and the offender rubbed the complainant’s vagina over her clothing. Similar observations apply to this as to count 14. Likewise count 15 is below mid-range but not significantly so.

30. Count 16 is an offence of Sexual Intercourse with a Child Between 10 and 14 which occurred in the January school holidays in 2010 when the victim JN was visiting her grandmother. The offender was living with the grandmother at the relevant time. The victim and her sister slept on a mattress on the floor of the lounge room. Her sister went to sleep. The offender sat down beside the mattress and began talking to the victim. He then put his hand under the bedclothes, inside the victim’s pyjamas and digitally penetrated the victim’s vagina. The victim unsuccessfully attempted to wake her sister. The victim gave evidence that it did not hurt but it was uncomfortable.

31. In respect of count 16 the victim was 13 which is towards the upper end of the age range contemplated by the section. The victim was 13 and the offender 49 and the offender was in a position of trust, being an uncle. The intercourse was digital and from the evidence I glean that it did not last for a particularly long period of time. The matter is below mid-range.

14. The remaining counts, i.e. counts 17 to 23 inclusive and count 25, relate to the victim AN. The offences relating to AN occurred between August 2008 and December 2012.

15. Count 17 occurred at the family home at [B] where the offender was also living. The victim was 6 and the offender was 48. On an occasion between 25 August 2008 and 11 February 2009 the victim was preparing for bed getting changed into her pyjamas. The offender came into the room, placed the victim on her bed, removed her clothing and engaged in digital penetration of the victim’s vagina. The victim cried. Noting the age of the victim this matter is slightly above mid-range.

16. Count 18 occurred at the victim’s grandmother’s home during the school holidays in January 2010. The victim showered and having completed her shower the offender entered the bathroom. The offender told the victim to be quiet and to lie on the floor, which she did. The offender then engaged in penile/vaginal intercourse with the victim, who at that stage was 7 years of age. The offender was 49. Being under authority of the offender is an element of the offence in this matter. Noting the age of the victim and the nature of the intercourse the matter is well above mid-range.

17. The following offence, i.e. count 19, also occurred at the grandmother’s house during the same school holidays. This offence occurred the night before a fishing competition that was to be held at Wyangala Dam. The victim and the offender were in the shed at the home preparing fishing tackle. The offender told the victim to lie down. Her lower clothing was lowered. She was lying down with her legs tucked under her and he bent her over slightly. The offender then engaged in an act of digital penetration. Being under authority is also an element of this offence. The victim was 7 and the offender 48. The incident came to an end when the victim’s sister was heard in the vicinity of the shed. This matter is mid-range.

18. Count 20 relates to an act of fellatio that occurred in the lounge room of the grandmother’s house also during those same school holidays. The victim and her sister slept on a mattress on the lounge room floor. The girls’ grandmother (the offender’s mother) retired to bed early on this particular occasion. They were watching Foxtel and it was the early hours of the morning. The offender offered the victim ice cream but said that he wanted the victim to do something first. The offender exposed his erect penis from his pants. He got the victim on her knees and he forced her head on to his penis and had the victim perform fellatio on him. This went on for about 15 minutes. Nothing the victim’s age (i.e. 7), the duration of the intercourse and the force used this matter is slightly above mid-range.

19. Counts 21 and 22 relate to offending that occurred between February 2010 and February 2011. The offences occurred as separate incidents on the same day at the nearby truck wash. The victim accompanied the offender in a utility to obtain water. The victim was obliged by her parents to go with the offender. While both were in the utility at the truck wash the offender exposed his penis and forced the victim’s head down and had her perform fellatio on him. The victim was 8 years of age and the offender 49. There was no ejaculation. The matter is within the mid-range of objective seriousness.

20. The offending to which count 22 relates is very similar to that with count 21. The victim accompanied the offender for a second “run” to obtain water. While at the truck wash the offender removed his penis from his pants and had the victim perform fellatio on him. The matter came to an end when another vehicle approached. There was no ejaculation. This matter is also within the mid-range.

21. Count 23 occurred at the family home but on the same night as the incidents at the truck wash. The victim was in a bedroom she shared with her sister and was in a bunk bed. The victim presumes that her sister was asleep. The offender went into the victim’s bedroom and passed a note which read to the effect of, “if you do it again I’ll pay you”. The offender pulled off the blankets and pulled the victim towards the end of the bed. He pulled off the victim’s pyjama pants and underpants. The offender inserted his penis into the victim’s vagina and had intercourse for approximately 20 minutes. I infer from the evidence that there was no ejaculation. I could not be satisfied beyond reasonable doubt that there was ejaculation. The offender replaced his penis into his pants and left the room. The victim was 8 which is towards the upper end of the age range contemplated by the section. The offender was in his late 40’s. The intercourse however continued for about 20 minutes. The matter is within the mid-range but very much towards the very upper end of the mid-range.

22. Count 25 was pleaded in the alternative to count 24. The issue related to the time and in particular whether the matter occurred before or after the victim’s birthday. For reasons given on 26 April 2019 I was satisfied beyond reasonable doubt of count 25 and not count 24. This offending also occurred in the victim’s bedroom. The victim was 10 years of age and the offender in his late 40’s. The offender entered the bedroom and threw the victim’s favourite teddy bear on to the victim’s sister’s bed. The victim retrieved her teddy bear and as she was getting down the offender pulled down her pants and engaged in an act of digital penetration of the victim’s vagina. The victim was 10 and accordingly at the lowest end of the age-range. The matter is in the upper end of the mid-range.

23. As I observed in the matter of R v Madely [2018] NSWDC 35, “The recitation of the facts in the somewhat bland and perhaps even sanitised fashion within these remarks on sentence perhaps does not truly reflect the enormity of the offender’s appalling, depraved and criminal conduct.” In the matter presently under consideration the offender over a period of about twelve years used and apparently considered his nieces as little more than sexual playthings. He constantly and repeatedly took advantage of his nieces when and where he could for his own sexual gratification.

Need for general deterrence

42. It is precisely this aspect of this matter that informs the need for a strong element of general deterrence to be factored into the sentence to be imposed. The strong need for general deterrence when dealing with offences of child sexual assault is undoubted. It goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [179] where his Honour said:

“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:

‘General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.’"

43. Other cases include R v Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316, both of which are referred to in the Crown’s written submissions, MFI 2 on sentence. In the matter presently under consideration the offender suffers from a number of medical issues. However, conformably with the decision of the Court of Criminal Appeal in MC v R these medical issues, which I will detail later in these remarks, in this case do not diminish the significant need for general deterrence.

Criminal History

44. The offender was born on 2 April 1960 and is now 59 years of age. He has a conviction for Assault Child in 1986 for which he received a custodial sentence, which was confirmed on appeal. He also has convictions for Malicious Injury (now called Damage to Property) in 1986 and Common Assault in 1989 and 1990. There are no matters recorded against him, although he was committing the offending for which he now appears for sentence, from 2000. Even so the offender is entitled to some very limited degree of leniency because of his lack of record, noting in particular what is recorded is of considerable age.

Subjective material

45. No evidence was given by or on behalf of the offender. However the court is favoured with a report from Mr Andrew Fordyce, Clinic Psychologist of LSC Psychology and three pages of medical notes apparently extracted from the Justice Health Records, noting that the offender has been in custody solely referable to these matters since 7 September 2017.

46. At p 2 of the report Mr Fordyce notes that, “At times he (offender) provided a generally positive response, but further specific questioning revealed significant issues...There were no observable indications of psychotic disturbance.” The offender generally had a positive developmental history and was not exposed to domestic violence or alcohol and drug abuse in his formative years.

47. The offender’s father died in 2000 and thereafter he lived with his mother, to whom he provided practical support. He had a positive relationship with his siblings until his arrest but it seems that there has been very limited contact between the offender and his siblings since.

48. I infer from Mr Fordyce’s report that the offender had a limited formal education. The offender reported that his ability to write is “not good” but his reading skills are reasonable. He was employed as a farm hand during his adolescence.

49. The offender has developed emphysema, which the offender attributed to his 38 year history of smoking cigarettes. He uses inhalers for the management of the disorder.

50. Mr Fordyce reports (pp 4-5) that the offender provided an inconsistent account of his social functioning. The offender claimed to be able to develop and maintain social relationships but also said that he was a “loner” going back to the manner in which he was raised to not trust others and keep to oneself. Mr Fordyce sets out that the offender’s account suggests that he has limited insight into his social functioning, interpersonal skills deficits and maladaptive beliefs that precipitate interpersonal distrust.

51. It appears that the offender has had two significant relationships and he had three children with one of his partners. The report sets out that the offender reported that he was falsely accused of assaulting his injured son. It is probable that this is the matter to which the entry for Assault Child that is on the offender’s criminal history relates. His son was placed in foster care thereafter. Mr Fordyce suggests (p 5) that the offender lacks insight into his functioning in intimate relationships.

52. The offender reported to the report writer that he was heterosexual in orientation but he was not sure of the age of women to whom he was generally attracted. He considered the age of consent serves to stop paedophiles. He expressed a negative perception of sexual offenders.

53. The offender maintained in the interview with Mr Fordyce that he was falsely accused of all charges and that he intends to appeal the convictions. He said that it “tore his heart out” when he was charged with the offences. Clearly, there is no material on which a court could make a finding on balance that the offender is remorseful. It is clear from the report of Mr Fordyce that the offender has very limited insight.

54. Mr Fordyce tested the offender for intellectual functioning. His performance on the vocabulary sub test placed him in the borderline range. He was placed in the average range on the matrix reasoning subtest. Overall the offender did not evidence an intellectual impairment.

55. A considerable part of the report is taken up with the likelihood of the offender re-offending. I note that at p 9 of his report Mr Fordyce says, “They (risk assessments) are also time limited and an appreciable level of error is built into them.” The offender was however assessed using the Static-99R test, which placed him in the very low risk category of being charged with or convicted of another sexual offence. At p 11 of the report Mr Fordyce concludes that the offender is considered to currently pose a below average risk of recidivism for sexual violence.

56. Given these opinions taken with the offender’s age I am prepared to find on balance that the offender is unlikely to re-offend. In other cases the contents of the report might also justify a finding on balance that there are good prospects of rehabilitation. However, in this matter given the repeated denials of the offending conduct and the limited insight into the offending I am not prepared to make that finding.

57. Further, of concern is what is set out at p 12 of the report namely, “However, he (offender) may not recognise such issues, given his generally low level of insight. Furthermore, there were subtle indications of unhelpful personality traits, characterised by interpersonal distrust and social detachment, based on Mr R’s account of his interpersonal functioning and incidents of past violent behaviour”. A little later Mr Fordyce says (pp 12-13), “…I suspect that his interpersonal and intimacy deficits are linked to his offending behaviour”. These comments fortify me in my finding that I am unable to find on balance that there are good prospects of rehabilitation.

58. Overall, the report is far from positive and sets out a number of matters that are of concern. I will direct that a copy of the report be annexed to the warrant that accompanies the offender back to custody.

59. The only other subjective material the court has is an extract of the Justice Health records that the offender has been diagnosed with emphysema. The remaining pages relate to medication that has been prescribed for that condition. The document is not particularly legible and counsel who appeared at the sentence hearing indicated that the medication was Spiravia tablets. However, as counsel appropriately conceded there is no evidence that the offender has in fact been diagnosed with emphysema beyond what appears in the notes. The sentence proceedings were adjourned to allow this matter to be properly investigated. Indeed, given what will inevitably be a very lengthy sentence I offered a further adjournment for this issue to be further investigated. The offer was not taken up by the offender.

60. Exhibit B on sentence, tendered by the Crown, is an Overview of Justice Health and Forensic Mental Network Services. The document, while of a general nature and not specific to the matter presently under consideration, contains considerable detail of the facilities and services available to persons in custody with particular health or other issues. It is tolerably plain from that document that the facilities for the offender to be cared for while in custody are more than adequate. The Crown reminds the court of the decision of Woodward v R [2017] NSWCCA 44 where Hulme J (Beazley P, Bellew J agreeing) said at [88]:

‘Further, the Crown submitted that his Honour was correct to conclude that the applicant’s age and ill-health could not justify the imposition of a sentence that failed to pay due regard to the objective gravity of the offence: R v Gallagher (Court of Criminal Appeal (NSW), 29 November 1995, unrep); R v Moon at [70]; R v EGC at [41]. This submission should be accepted.’

61. I have a note and memory to the effect that counsel for the offender put in his oral submissions that I would make a finding of special circumstances. My memory is to the effect that this is because of the offender’s age and health issues. The period on parole using the statutory ratio will be entirely sufficient in my opinion for any supervision that may be needed. The Crown in the written submissions (MFI 2 on sentence) puts that ill health may lead to a finding of special circumstances. I accept that is the case. However in the matter presently before the court there is in reality very little information or detail about the health of the offender beyond a diagnosis of emphysema. For example, there is nothing in the material that goes to the short and/or long term effects or matters such as prognoses or life expectancy. In the absence of any further material about the health or present condition of the offender I am not prepared to make a finding of special circumstances.

62. I accept that the non-parole period that I will be imposing in this matter may well have the practical result of the offender spending the remainder of his life in custody. There is no principle that the offender should not be sentenced to a term that would result in him spending the rest of his life in gaol. One of the cases usually cited as authority for that proposition is Holyoak v The Queen (1995) 82 A Crim R 502.

Submissions

63. The oral submissions of the parties were not particularly lengthy. Mr Keller emphasised the need for the court to give proper regard to totality and to consider each charge. Submissions were made as to the limited criminal history of the offender. I have already dealt with that issue. Mr Keller also submitted that he “could not shy away” from the fact that the offending was at or above mid-range.

64. On the subjective issues counsel submitted that the offender is now 59 years of age and will be 60 in April 2020. Mr Keller then went to the clinical notes to which I have referred when dealing with the issue of emphysema. Counsel appropriately conceded that the court would not be able to find remorse but emphasised that part of Mr Fordyce’s report that assesses the offender at being below average risk of re-offending. I have dealt with the report in some detail. Counsel submitted that I would also find on balance that there are good prospects of rehabilitation. For reasons already given I decline to make such a finding.

65. Mr Keller also submitted that the offender was receiving a disability support pension but he was unsuccessful in obtaining the relevant reports relating to the relevant medical condition. It was appropriately conceded that the offender will be an old man at the expiration of the non-parole period. No issue was taken with the concept of an aggregate sentence. The court was urged to impose an appropriate sentence.

66. The Crown’s representative relied upon the written submissions, MFI 2 on sentence. I have addressed a number of issues already including the need for general deterrence and the issue of the medical conditions suffered by the offender.

67. The parties accept that the commencement date for the total sentence and the non-parole period is 7 September 2017. Neither party had an issue with the court imposing an aggregate sentence. To do otherwise in this matter would make the matter quite unwieldy. However, there are issues of totality and partial accumulation to be considered. There are four different victims and if separate sentences were imposed an appropriate degree of partial accumulation would be necessary to reflect the different victims. Likewise, there would need to be some appropriate degree of partial accumulation with the matters relevant to each victim to recognise the different episodes of offending. If separate sentences were imposed in the matters where there are multiple counts arising out of the same ongoing episode of offending the sentences would be substantially or wholly concurrent providing that appropriate principal was properly applied.

68. In this regard Howie J in Cahyadi v R, (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] said:

“In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

General Remarks

69. I remain of the opinion that it is appropriate to deal with this matter by way of an aggregate sentence. I will set out a table which lists the number of the count, a summary of the conduct to what that count relates, the maximum penalty and the total sentence that would have been imposed had separate sentences been imposed.

70. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

71. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Clearly in this matter given the multiplicity of the offending, the type of offending and the maximum penalties, noting in particular that a number of the offences relating to the victims carry a maximum sentence of life imprisonment it is inevitable that there must be a very substantial sentence of imprisonment. No contrary submission was made. The specification of life imprisonment as a maximum penalty is an indication of how seriously the legislature regards that offending.

72. I note that some of the offending dates back almost 20 years. However the effect of s 25AA of the Crimes (Sentencing Procedure) Act is that the sentence to be imposed reflects current sentencing trends for these types of matters.

73. The table below is a copy of one prepared by me and provided to the parties earlier in the sentence proceedings. In setting out the sentences that would have otherwise been imposed had separate sentences been imposed I will not read out the short facts or maximum penalty as set out in the table as those matters have already been dealt with earlier in these remarks.

Matters relating to TM

Count	Offence	Description	Maximum Penalty	Indicative sentence
1	Attempt Sexual Intercourse with Child Under 10 Section 66B Crimes Act, 1900	8.2.2000–1.12.2000 In bathroom in house. Attempted to insert a finger into victim’s vagina after she had had a bath – victim 5 or 6 years old	20 years	7 years imprisonment
3	Sexual Intercourse with Child Under 10 Section 66A Crimes Act	8.2.2000– 1.12.2000 Same occasion as count 1 – act of cunnilingus after putting towel on floor – victim aged 5 or 6	20 years	10 years imprisonment
4	Commit Act of Indecency Towards Child Section 61O(2) Crimes Act	8.2.2000–23.10.2001 In caravan at tip where offender worked – offender exposes his penis from his jeans to victim while victim’s brother is outside playing – victim aged 5 to 7	7 years	15 months imprisonment
5	Incite Act of Indecency Section 61O(2) Crimes Act	8.2.2000 – 25.2.2002 In flat in offender’s room – exposes penis and asks victim to touch it and she did – victim aged 5 - 7	7 years		18 months imprisonment
6	Sexual Intercourse with Child Under 10 section 66A Crimes Act	8.2.2000 – 25.2.2002 Immediately following count 5 – had (told) victim place her mouth over his penis (fellatio)- victim aged 5 - 7	20 years		11 years imprisonment
7	Attempt Sexual Intercourse with Child under 10 Section 66B Crimes Act	8.2.2000 – 25.2.2002 Following counts 5 & 6 – offender places victim on bed and attempts to insert his penis into her vagina after pulling her pants down – victim aged 5 -7	20 years		10 years imprisonment
9	Commit Act of Indecency Towards Child Section 61O(2) Crimes Act	8.2.2000 – 25.2.2002 Following counts 5, 6 & 7 – offender masturbates to ejaculation and ejaculates into a sock he picked up from the floor – victim aged 5-7	7 years		2 years imprisonment
10	Indecent Assault on Child Under 10 Section 61M(2) Crimes Act	1.1.2003 – 31.12.2003 In offender’s bedroom – offender touches victim on vagina on top of clothing	10 years SNPP 5 years as from 1 Feb 2003		NPP 1 year 3 months, balance of term 5 months, total sentence 20 months imprisonment
11	Incite Act of Indecency Section 61O(2) Crimes Act	1.1.2003 – 31.12.2003 Day following count 10 - offender shows victim necklaces then exposes his penis and asks her to touch it – victim said no and put hands behind back – victim 8 or 9		7 years	18 months imprisonment
12	Attempt Sexual Intercourse with Child Under 10 Section 66B Crimes Act	1.1.2003 – 31.12.2003 Following count 11 – victim’s legs dangling over side of bed – offender pulls down victim’s pants and underwear – attempts (unsuccessfully) to insert a finger into victim’s vagina – victim’s brother arrives is told not to say anything – victim 8 or 9		20 years 25 years from 31 Jan 2003	9 years imprisonment

Matters involving TN

14	Indecent Assault on Person under 16 years Section 61M(2) Crimes Act	25.8.2008-21.3.2009 In yard – offender piggy backing victim and while doing so rubs vagina in back & forth motion on outside of clothing – victim 7	10 years SNPP 8 years	NPP 18 months, balance of term 6 months, total sentence 2 years imprisonment
15	Indecent Assault on Person Under 16 years- Section 61M(2) Crimes Act	25.8.2008-21.3.2009 In yard but in Commodore sedan owned by offender – rubs vagina over top of clothing – victim 7	10 years SNPP 8 years	NPP 18 months, balance of term 6 months, total sentence 2 years imprisonment

Matter relating to JN

16 Sexual Intercourse with child between 10 & 14 years Section 66C(2) Crimes Act 3.1.2010-17.1.2010 At grandmother’s home when offender living with victim’s grandmother – digital penetration of victim’s vagina while victim and her sister in bed on a mattress on the floor – victim 13 20 years Total sentence 7 years imprisonment

Matters relating to AN

17	Sexual Intercourse with Child Under 10 years (namely 6) Section 66A Crimes Act	25.8.2008-11.2.2009 Victim getting changed into pyjamas for bed, offender placed victim on her bed and engages in act of digital penetration, victim cried – victim 6	25 years SNPP 15 years	NPP 7.5 years, balance of term 2.5 years, total sentence 10 years
18	Sexual Intercourse with child Under 10 years by person in authority Section 66A(2) Crimes Act	3.1.2010-17.1.2010 At grandmother’s home, offender enters bathroom after victim showers, victim told to lay on floor, act of penile/vaginal intercourse – victim 7 years of age	Life Imprisonment SNPP 15 years	NPP 10.5 years, balance of term 3.5 years, total sentence 14 years
19	Sexual Intercourse with child Under 10 years by person in authority Section 66A Crimes Act	10.1.2010-17.1.2010 Night before fishing competition at Wyangala Dam – in shed at house, victim told to lie down, offender lowers the victim’s lower clothing and engages in act of digital penetration – victim 7 years of age	Life imprisonment SNPP 15 years	NPP 9 years, balance of term 3 years, total sentence 12 years
20	Sexual Intercourse with child under 10 years – by person in authority Section 66A(2) Crimes Act	3.1.2010-17.1.2010 In lounge room at grandmother’s home – early hours of the morning – victim offered ice cream – sister in room but asleep – offender has victim fellate him – offender’s penis erect when produced from his clothing – victim says went on for 15 minutes – victim 7	Life Imprisonment SNPP 15 years	NPP 9 years 9 months, balance of term 3 years 3 months, total sentence 13 years imprisonment
21	Sexual Intercourse with child Under 10 years by person in authority Section 66A(2) Crimes Act	12.2.2010-11.2.2011 At truck wash when victim goes with offender to get water – victim places mouth over penis while both her and offender in offender’s ute – offender had hand at back of victim 8’s head	Life Imprisonment SNPP 15 years	NPP 9 years, balance of term 3 years, total sentence 12 years
22	Sexual Intercourse with child under 10 years by person in authority Section 66A(2) Crimes Act	12.2.2010-11.2.2011 Also at truck wash – same day as previous count - second occasion or run to obtain water – penis produced from clothing – victim places mouth over offender’s penis – incident came to an end when another vehicle came upon the scene – offender had hand at back of victim 8’s head	Life Imprisonment SNPP 15 years	NPP 9 years, balance of term 3 years, total sentence 12 years
23	Sexual Intercourse with child under 10 years by person in authority Section 66A(2) Crimes Act	12.2.2010-11.2.2011 At home address on night of the day when counts 21 & 22 occurred – in victim’s room on bunk bed – sister in room but victim presumes she was asleep – offender gives victim a note offering money for sex – victim pulled down after offender removes bedclothes – offender removes PJ pants and underpants – penile vaginal intercourse for 20 minutes – offender replaces penis in pants and leaves – victim 8	Life Imprisonment SNPP 15 years	NPP 11 years 3 months, balance of term 3years 9 months, total sentence 15 years
25	Sexual Intercourse with person between 10 & 14 years Section 66C(1) Crimes Act	11.2.2012-22.12.2012 In victim’s room– offender comes into room and throws her favourite teddy bear on to her sister’s bunk – victim goes to retrieve teddy bear – offender engages in act of digital penetration –victim 10	16 years SNPP 7 years	NPP 9 years, balance of term 3 years, total sentence 12 years.

Orders

74. The offender is sentenced to an aggregate sentence of 30 years imprisonment with a non-parole period of 22 years 6 months.

75. The non-parole period will commence on 7 September 2017 and will expire on 6 March 2040. The balance of term of 7 years 6 months will commence on 7 March 2040 and will expire on 6 September 2047.

76. The offender will be eligible for release to parole at the expiration of the non-parole period and I recommend that release.

77. I direct that a copy of the report of Mr Fordyce, exhibit 1 on sentence be annexed to the warrant that accompanies the offender to custody.

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Decision last updated: 01 October 2019