R v Swain

[2020] NSWDC 911

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Swain [2020] NSWDC 911

Hearing dates:

1 December 2020

Date of orders:

3 December 2020

Decision date:

03 December 2020

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

Aggregate term of imprisonment of 7 years with a non-parole of 4 years

Catchwords:

SENTENCING — Aggravating factors — Home of victim or any other person

SENTENCING — Mitigating factors — Plea of guilty – Remorse

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

CRIME — Child sex offences — Sexual intercourse with child >10 <14 — Circumstances of aggravation

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Bugmy v R (2013) 249 CLR 571; HCA 37

Cahyadi v R (2007) 168 A Crim R 41; NSWCCA 1

Imbornone v R [2017] NSWCCA 144

R v Dent (unreported, NSWCCA 4 March 1991)

R v Nelson [2016] NSWCCA 130

Category:

Sentence

Parties:

Regina (Crown)
Jesse Swain (Offender)

Representation:

Counsel:
Ms K Tennant (Crown)
Mr J O’Sullivan (Offender)

Solicitors:
Ms B Nettleton (Office of the Director of Public Prosecutions)
Mr J Arms (Offender)

File Number(s):

2018/00367612

Publication restriction:

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

Judgment

1. The offender, Jesse Swain, now 39 years of age appears for sentence in relation to five sexual offences, four relate to HK who was then aged 10 years. The offending occurred between 1995 and 1996. At the time of those four offences, the offender was 14 years of age. The remaining offence relates to JS who was aged 12 years at the time of the offending, that offending occurred in 2017.

2. The offences in respect of which the offender appears for sentence are as follows:

1. Count 1 - An offence of aggravated indecent assault pursuant to s 61M (1), Crimes Act 1900 (NSW).

2. Count 3 - A further offence of aggravated indecent assault pursuant to s 61M(1), Crimes Act; and

3. Count 4 - A further offence of aggravated indecent assault pursuant to s 61M(1), Crimes Act.

The maximum prescribed penalty for each of those offences at the time of the commission of the offences was 7 years imprisonment. There was no prescribed standard non-parole period. The maximum prescribed penalty available in the Children’s Court was 2 years imprisonment.

4. Count 2 - An offence of aggravated commit act of indecency towards a child, an offence pursuant to s 61O(1), Crimes Act.

The maximum prescribed penalty for that offence is 5 years imprisonment. There is no prescribed standard non‑parole period and, again, the maximum prescribed penalty available in Children’s Court is 2 years imprisonment.

5. Count 7 – An offence of sexual intercourse (victim JS) with a child above the age of 10 years and under the age of 14 years in circumstances of aggravation, an offence pursuant to s 66C(2), Crimes Act.

The maximum prescribed penalty available for that offence is 20 years imprisonment. There is a prescribed standard non‑parole period of 9 years imprisonment.

3. The procedural history is as follows. The offender appeared for trial before Gosford District Court on 22 June 2020 in relation to eight counts involving three complainants, HK, JS and TP. JS and TP gave evidence in the trial. Before the victim, HK, was called to give evidence, the offender pleaded guilty to four counts in relation to HK and one count in relation to JS. There were no further proceedings directed in relation to the remaining counts concerning TP.

4. It is agreed between the parties having regard to the timing of the plea that was entered on day 4 of the trial (26 June 2020), that the offender is not entitled to any discount in relation to the victim JS, who had given evidence at the trial, however, it is agreed that the offender is entitled to a discount of 5% in relation to the victim, HK, in circumstances where she had not yet given evidence. I propose to apply a 5% discount in relation to the offending concerning HK.

5. The offender has been in custody since his arrest on 29 November 2018. Accordingly, the sentence imposed today will be backdated to that date.

The Crown material on sentence

6. The Crown tendered the following material on sentence:

1. Exhibit A - The Crown sentence bundle including the following: the notice of committal indictment; the statement of facts for the offending against HK; a New South Wales criminal history; and custody management record and victim impact statements from HK and JS;

2. Exhibit B - Crown written submissions;

3. Exhibit C - Summary of evidence in relation to count 7 (victim JS); and

4. Exhibit D - Agreed Facts in relation to New Zealand offending; and

5. Exhibit E - New Zealand criminal history.

The Agreed Facts

7. The Agreed Facts in relation to Count 1 to 4 concerning HK are as follows: HK was born on 17 May 1985. The offender is her half-brother. The offender used to visit HK and her family over the Christmas holidays every year between 1991 and 1998 having travelled from New Zealand where he was living at the time.

8. In 1992, HK and her family were living at a house near Yarramalong. HK informed police that the sexual abuse by the offender began in the holiday of 1992 when he was left in charge to babysit her and her brother, JK. The offender instructed HK to go into the bedroom and asked HK’s brother to go and play elsewhere. When HK protested, the offender said, “You heard mum, I am in charge”. The offender then instructed HK to massage his back before he turned over and asked that she massage his chest. HK described that, when the offender was on his back, he pulled down his pants and exposed his erect penis. The offender then asked HK to touch his erect penis before HK walked out of the bedroom.

9. When the offender also left the bedroom, he said to HK that he would tell their mother, LK. HK indicated that she would tell her mother, left the house and started walking towards the township of Yarramalong.

10. A neighbour saw HK walking towards the township and drove her part of the way. After some time HK’s mother saw her and pulled over.

11. HK informed her mother of the incident but HK’s mother slapped her numerous times and “didn’t listen”. HK indicated to police that the offender repeated this type of offending five to six times during the time he visited that holiday period.

12. At the time, HK was 7 years of age and the offender was 11 years of age.

Count 1 (Aggravated indecent assault) and Count 2 (Act of indecency)

13. Over the Christmas holidays in 1995, HK and her family were living at a residence in Mangrove Mountain. The offender again visited HK and her family over the Christmas period and was left in charge of HK and her brother.

14. HK and her brother were outside playing. The offender instructed HK to come inside the house and told her brother to stay outside and play. When HK came inside, the offender pulled the curtains shut after locking the sliding door. He played a pornographic film on the TV and started pointing out things on the screen to HK. HK told the offender that she would not be doing what was on the TV. The offender then started playing with himself and instructed HK to remove her clothing so she was in her underwear.

15. The offender then instructed HK to bend down onto her hands and knees. The offender then pulled HK’s underwear down when he was behind her. The offender then asked HK to crawl while he crawled behind her.

16. The offender then instructed HK to stop before he rubbed his fingers up and down HK’s vagina. This conduct constitutes Count 1 on the indictment.

17. When HK said that was enough he stopped and “played” with himself and asked her to watch. That conduct constitutes Count 2 on the indictment.

18. At the time of the offending, the offender was aged 14 years and HK was aged 10 years.

Counts 3 and 4 (Aggravated indecent assault)

19. During the same 1995 Christmas holiday period at Mangrove Mountain, the offender called HK into her room and said that if she didn’t go that he would inform their mother. When HK entered the room, the offender closed and locked the door, and pulled the curtains shut. The offender instructed HK to remove her clothing before telling her to crawl around the room. The offender then rubbed the outside of HK’s vagina with his fingers. This conduct constitutes Count 3 on the indictment.

20. The offender then grabbed HK’s hand and placed it on his erect penis and made her “wank” him. That conduct constitutes Count 4 on the indictment. It is agreed between the parties that this conduct was constituted by skin‑to‑skin contact.

21. At the time of this offending, the offender was also aged 14 years and HK was also aged 10 years.

Count 7 (Sexual intercourse with person 10 to 14 years)

22. JS was born on 9 August 2004.

23. In January 2012, the offender formed a relationship with JS’ mother, SM. In June 2012, the offender moved in with SM and her three daughters including JS. The offender’s two daughters would stay at the address one weekend per fortnight.

24. In June 2015, the family moved to Watanobbi.

25. One night between March and June 2017, JS was sleeping in her bed underneath the covers. She was wearing shorts and underwear. She woke up and saw that the offender had the blankets pulled up and was looking at her “private part” using a flashlight. The offender then turned the flashlight off and JS froze. The offender moved JS’ shorts and underwear to the side and started touching her vagina with his fingers on the inside of her clothing. The offender put his finger inside JS’s vagina and moved it around for about 2 or 3 minutes. JS sat up and asked, “What are you doing?” The offender replied, “You told me to play with you”. JS said, “No, I did not. Please get out of my room”. The offender then left.

26. On about 9 November 2018, JS was talking with her friend, OH and KT about things that had affected their lives. JS told them both that she had a big secret she had been hiding for a while and began to cry. JS said that one night she woke up to find the offender with a flashlight pointing at her vagina which he was rubbing. The pair told JS to tell her mother.

27. JS and her two friends went to talk to JS’s mother. JS told her mother that one night when they had lived in the other house just after the offender’s daughter moved out, she woke up to the offender touching her vagina.

28. A few days later, JS apologised to her mother for not complaining sooner explaining that she thought it would ruin her relationship with the offender.

29. On 24 November 2018, the offender sent a message to JS’ mother that included the following:

“I didn’t touch JS Period… JS is confused or mistaken. I did not touch her. At all. I pulled the blanket over her and tucked her in on an odd occasion if I was in the kitchen and heard her having a bad night, but I never ever touched her in any way. I don’t know why she has said this but I assure you it is not true…If I did something to JS, she wouldn’t ever want to be in the same room as me Period…I didn’t do shit and I will fight this”.

30. The offender was arrested on 29 November 2019. Upon arrest, he was taken to Gosford Police Station and he took part in a record of interview with police. During that interview, he continued to deny that he had done anything inappropriate in relation to JS.

31. Those facts clearly disclose very serious objective criminality. Sentences imposed for offending in relation to children must not only have a very significant element of general deterrence but must also punish the offender and denounce the conduct.

32. In relation to sentencing for sexual offences against children by adults, the Court notes the remarks of Justice Lee in R v Dent NSWCCA 4 March 1991:

“One begins with the proposition that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature. Little children are entitled to grow up free from defilement by sexual predators and free from risk of psychological upset, confusion and difficulties later in life caused by such conduct”.

33. In relation to the present matter, HK was betrayed by someone whom she trusted. Similarly, JS was betrayed by someone who was in a parental role.

Assessment of objective seriousness

34. In assessing the objective seriousness of Counts 1, 3, and 4, aggravated indecent assault, I have taken into account the following factors:

1. The age of HK was 10 years, recognising that the offence relates to children aged 0 - 16 years;

2. The age of the offender was between 14 years 10 months and 14 years 4 months;

3. The conduct relied upon in relation to Count 1 and Count 3 was rubbing HK’s vagina and involved direct skin to skin contact;

4. The conduct relied upon in relation to Count 4 was placing HK’s hand on the offender’s penis and making her masturbate him, again, there being skin to skin contact;

5. At the time of Counts 1, 3 and 4, the offender had instructed HK to remove her clothing;

6. The circumstance of aggravation relied upon was that HK was under the authority of the offender in circumstances where the offender had been left in charge of HK at the time of the offending; and

7. Whilst the Agreed Facts are silent on the duration of this offending, there is no suggestion it was lengthy.

35. Having regard to those factors, I assess the objective seriousness of each of Counts 1, 3 and 4 as being at the low end of the middle of the range. An important factor in that determination is the age of the offender at the time.

36. In assessing the objective seriousness of Count 2, aggravated commit act of indecency, in addition to the factors 1, 2 and 6 referred to above, I have taken into account the following factors:

1. The act of indecency was asking HK to watch the offender as he “played with himself”; and

2. Again, the Agreed Facts are silent upon the duration of the offending, however, again, there is no suggestion it was lengthy.

37. Having regard to those factors, I assess the objective seriousness of this offence as below the middle of the range.

38. In assessing the objective seriousness of Count 7, aggravated sexual intercourse with child 10 to 14 years (JS), I have taken into account the following factors:

1. The age of JS was 12 years, recognising that the offence relates to children aged 10 to 14 years;

2. The age of the offender was 36 years, meaning there was a significant age disparity, namely 24 years;

3. The sexual intercourse relied upon was digital penetration, recognising that there is no hierarchy of seriousness based solely upon the nature of the sexual act alone;

4. The circumstance of aggravation relied upon was that JS was under the authority of the offender in circumstances where the offender was in a parental role with respect to JS for a significant period of time, at least approximately five years;

5. The duration of the sexual intercourse was for about two to three minutes.

39. Having regard to those factors, I assess the objective seriousness of Count 7 as being in the middle of the range.

General principles - Sentencing adult offenders for offences committed as a child

40. Each of Counts 1 to 4 are not serious children’s indictable offences pursuant to s 3, Children (Criminal Proceedings) Act 1987 (NSW). In such circumstances had the offender been sentenced at a time more proximate to the offending, he would have been dealt with in the Children’s Court where the maximum prescribed penalty would have been 2 years for each offence.

41. It is agreed between the parties that the Court is required to take into account that the offender would have been dealt with under the statutory regime applicable to the sentencing of children (see R v AA [2017] NSWCCA 84 at [60] – [68]).

42. Further, had the offender been dealt with under the Children (Criminal Proceedings) Act, the Court would have also been required to have regard to s 6 of that Act which sets out the principles applicable when sentencing children.

43. In circumstances where the offender is now over the age of 21, he is required to be sentenced according to law.

Aggravating factors

44. The Crown relied upon two aggravating factors.

45. Firstly, that the offending occurred in the home of each of HK and JS. I accept that aggravating factor is established.

46. Secondly, the Crown relied upon the offender’s criminal history as a circumstance of aggravation. I will outline the offender’s criminal history later in my remarks. At this stage, I can indicate that I do not propose to take it into account as an aggravating factor but rather, it will disentitle the offender to any leniency that would otherwise be available to a person of good character.

Victim impact statements

47. Both HK, now 35 years, and JS, now 16 years, prepared victim impact statements.

48. HK read out her victim impact statement during the sentence proceedings. HK described the immediate effects of the offending upon her and also the devastating long-term consequences. Her statement included the following:

“Let me explain what happened to that little girl. The first day ever Jesse manipulated me to touch me, I lost trust for everyone. I had floated through life enjoying being the little girl I was. I had no idea what it was like to have TRUST taken away. Trust for innocent play, trust for family; trust for advice; trust for punishment for my own good. From that day, I grew up not trusting anyone. The mess and life altering chapters in my life created by trying to go off my damaged instinct and damaged self-value was not easy. My journey has been hard and has nearly resulted in me wanting to take my own life leaving my kids without a mum”.

49. HK outlined that she has been on medication since 2013 and has also engaged with a psychologist since that time. She also described the emotional turmoil she experienced in 2019 when contacted by police in relation to the offender. She demonstrated significant courage and resilience to be able to speak to police, however, it is clear that such courage came at a significant personal cost. Her life was plunged into turmoil where she struggled to cope with all of the emotions that followed. Even after the offender pleaded guilty, her turmoil continued. She described her situation as follows:

“Jesse pleading guilty saved some dignity I had left. I wanted relief after that day, but for weeks after my expectation of feeling healed did not come. Instead, I was so badly affected I could not even be a mother to my children, I couldn’t be a friend or a partner. I had been severely re-traumatised to the point of not wanting to get out of bed and face life. I was fully disabled in all aspects of my life. I couldn’t answer my phone. I couldn’t engage in routine like cooking dinner, I felt dead inside and was completely lost mentally and emotionally”.

50. She continued as follows:

“Even after I have been able to have a voice and have it heard, there has been no healing as expected. It has re-opened my life up to confusion, challenges, more breakdowns and severe anxiety. I am now starting to see I still have a long way to go”.

51. JS, in her victim impact statement, describes the immediate impact of the offending upon her in the following way:

“Then the incident happened that changed my life forever and at only 12 years old I knew nothing would ever be the same. The father figure I looked up to revealed how much of a monster he truly was. That late night changed my perception of the world. That’s when I stopped being an innocent child. I was introduced to one of the worst things to happen to another human being and I knew I would never be the same. The best years of my life, the majority of my childhood was filled with your manipulation, abuse and inhuman behaviour. This behaviour led me to keep quiet for so many months without speaking out”.

52. JS described her ongoing difficulties including depression and crippling anxiety. She explains her situation as follows:

“I am always watching my back expecting something horrible to happen again as I got so used to multiple events happening after one another. You are the reason I do not feel safe around men. I even get scared whenever I am around my father, someone who has done nothing but love, care for and nurture me for these whole 16 years of my life”.

53. JS also described the strain for her family and family relationships as a consequence of the offending. Fortunately, JS now has strong relationships with her family members since she has had the courage to come forward and disclose the offending.

54. Courts now well understand the significant effects upon victims of sexual offending. In R v Nelson [2016] NSWCCA 130 Basten J at [23] stated as follows:

“Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable relationships in adulthood and possible self-destructive behaviour”.

55. The Court is hopeful, that with the love and support of their family and friends, the victims can look forward to a much more positive future.

56. One of the purposes of sentencing is to recognise the harm done to each of the victims (see s 3A(g), Crimes (Sentencing Procedure) Act 1999 (NSW)).

Subjective circumstances

57. The offender is now 39 years of age.

58. He has a criminal history commencing in 1998 when he was sentenced in New Zealand for 11 child sexual assault offences. The facts in relation to those offences are set out in Exhibit D.

59. That offending related to three victims. One victim was the offender’s sister who was aged 5 years at the time of the offending. The offender was aged 15 or 16 years. The second victim was aged 12 years, the offender was aged 15 years. The third victim was aged 4 years and the offender was aged 16 years.

60. It is clear from that recitation of the facts that the New Zealand offending occurred after the offending in relation to HK which occurred in 1995 and 1996. In relation to that offending, in respect of five offences, the offender was sentenced to 4 years in prison and in relation to six of the offences, the offender was sentenced to 3 years in prison.

61. The offender also has a New South Wales criminal history commencing in 2003 when he was dealt with for driving matters. Again, in 2006, he was dealt with for driving matters. In 2009, he was dealt with for drive whilst disqualified and fined. In 2015, he was dealt with for destroy or damage property and received a s 9 bond. In 2016, he was dealt with for contravening an apprehended violence order and received a s 9 bond. He was also dealt with for assault occasioning actual bodily harm and was sentenced to a community service order for 200 hours. He was called up in respect of that community service order and sentenced to a s 12 suspended sentence for 8 months. In that same year, he was dealt with for stealing property from a dwelling and fined and also make false statement and fined.

62. Having regard to the offender’s criminal history, I am satisfied that it disentitles him to any leniency on sentence.

63. The offender did not give evidence during the sentence proceedings. The following material was tendered on his behalf:

1. Exhibit 1 - Report of Dr Katie Seidler, clinical and forensic psychologist, dated 14 March 2016;

2. Exhibit 2 - Report of Lee Knight, clinical nurse consultant (forensic mental health) dated 21 November 2020; and

3. Exhibit 3 - Defence written submissions.

64. The offender’s background is outlined in the report of Dr Seidler (Exhibit 1) and the report of Mr Knight (Exhibit 2). Mr Knight assessed the offender on 19 October and 9 November 2020 via audio visual link. Dr Seidler assessed the offender on 3 March 2016 for two and a half hours. Dr Seidler assessed the offender as a consequence of an allegation made by his then partner who was the mother of JS in circumstances where a complaint had been made by her oldest daughter and also JS and FACS had made a request for a risk assessment to explore what risk the offender may pose should he return to live in the home.

65. The offender’s background can be summarised as follows. The offender is the only child born of his parents’ union who separated when he was 4 years of age. He reported having a poor relationship with his mother who lives in Lake Munmorah. He has not had any contact with her for three years.

66. In relation to his father, the offender reported that he gets on quite well with him but they have not been in contact since he entered custody. His father lives in New Zealand. The offender reported having a good relationship with his paternal half siblings and a poor relationship with his maternal half‑sister and half-brother who he has not had contact with since 2006 and 2010 respectively.

67. The offender was raised in Budgewoi by his parents until the age of 4 when he moved to New Zealand to live with his father after his mother ostensibly “gave him up”. He reported that he was raised by his father and stepmother but visited his mother and half siblings in Australia on a yearly basis during the Christmas holidays. He described his childhood as being “good” and denied being subjected to any form of violence or emotional abuse by his father or stepfather. He did report physical abuse from his mother’s partner between the ages of 4 to 6 in the form of beatings with his hands and a belt. The offender reported to Dr Seidler that his mother was a poor caregiver who engaged in illicit drug use and hedonistic behaviour, therefore a greater care giving responsibility fell to the offender.

68. The offender reported being sexually abused between the ages of 9 to 11 by a 16 year old female relative. It was noted by Mr Knight that the offender had advised Dr Seidler that the abuse occurred on three occasions. He reported that it ceased after this and he continued to have contact with that person until the age of 16 years. He first disclosed this abuse three years ago. He reported experiencing ongoing nightmares and thoughts about this abuse.

69. At 15 years of age, the offender was incarcerated in a New Zealand adult prison following convictions for sexual abuse of his paternal half-sister and two of her friends.

70. The offender reported to Dr Seidler that he was sexually abused on numerous occasions whilst in custody and described this experience as “the scariest thing in his life”. He stated that he was sexually assaulted by individuals and groups of men and occasionally needed surgery to repair injuries sustained. The offender also reported being physically assaulted including being stabbed in the chest and torso on four occasions by inmates who found out about his offending. The offender was then placed on protection in gaol which took the form of segregation and was being kept in his cell for 23 hours a day for a period of nine months.

71. In her report, Dr Seidler noted that as a result of his incarceration and being “horrifically and repeatedly sexually abused” whilst in custody, the offender re-entered the community as an unsettled, traumatised and vulnerable individual. The offender reported suffering ongoing nightmares in relation to this abuse. Upon release from custody, the offender was deported to Australia on poor character grounds at the age of 19 years.

Education and employment

72. The offender reported that he attended Fairfield Public School from kindergarten to Year 6 and then attended a college from Year 7 to 10. He described his schooling as unremarkable.

73. Upon returning to Australia, he reported being employed as a labourer for around two years and at 21 years of age he began employment as a forklift driver. At the age of 26, he was employed as a rigger and scaffolder. He was undertaking this type of work at the time he entered custody for the current offences. He reported that his longest period of continuous employment was for around two years with his longest period of unemployment lasting for approximately six months.

Relationships

74. The offender’s first relationship commenced when he was 20 years of age and lasted four and a half years. He has two daughters as a consequence of that relationship now aged 12 and 16 years. He also reported he has a 7 year old son from another relationship which lasted six years.

75. The offender is currently in a relationship with “Kim”. Their relationship began twelve months before the offender entered custody and they have lived together for two months. Kim has three daughters aged 20, 18 and 13 and the offender plans to reside with her and her two eldest daughters upon release from custody. Before his arrest, the offender was residing with his current partner, Kim.

Substance use history

76. The offender reported daily consumption of alcohol commencing at the age of 20. He said that he was consuming between six and twenty beers per day at the time of entering custody. He stated that in 2012 he attended a residential detoxification and rehabilitation program for one weekend for alcohol.

77. He reported on and off use of cannabis from 14 years of age until two years prior to his incarceration. He reported using amphetamines between the ages of 25 and 30 on a weekly basis and that he commenced using crystal methylamphetamine around the age of 37. He also stated he tried cocaine and ecstasy once or twice throughout his life.

Medical history

78. The offender reported a largely unremarkable medical history.

Psychiatric history

79. The offender reported that his sister may suffer from bipolar affective disorder and his mother has been diagnosed with Hashimoto’s disease.

80. He reported receiving treatment from a psychologist around the age of 13 for “teenage issues”. He recommenced seeing a psychologist in 2014 whom he saw for two sessions.

81. He reported being admitted to the mental health unit at Gosford Hospital for one week in 2015 following a suicide attempt in the context of a recent relationship breakdown. He was detained under the Mental Health Act and was diagnosed with bipolar affective disorder. He did not receive any medication for this condition but was followed up by the community mental health team for the next six months.

82. In that same year, the offender was assessed by Dr Seidler following the referral from FACS. Dr Seidler noted cumulative childhood traumas had resulted in the offender becoming “an insecure, vulnerable, timid and traumatised child who struggled with self-regulation and self-esteem”.

83. In 2017, the offender saw a psychologist for two sessions. He has not been followed up since that time. Whilst in custody, he reported that he has been reviewed by a psychiatrist and diagnosed with bipolar 2 disorder as well as post-traumatic stress disorder. He stated that he has been prescribed an anti-psychotic medication to assist him with balancing his emotions. He reported recently being reviewed by the custodial mental health team who were pleased with his progress and maintained his current medication regime of a mood stabiliser and anti-depressant and anti-psychotic.

Psycho-sexual history

84. The offender reported that his first sexual experience was at 9 to 11 years of age when he was sexually abused by his 16 year old female relative. The offender’s next sexual experiences were when he sexually abused his half-sister in New Zealand when he was 14 years of age. His sister told her parents and the offender’s father took him to the police station.

85. When assessed by Dr Seidler in 2016, the offender denied any paedophilic sexual interest in children of either gender. Upon assessment by Mr Knight, the offender told him that he was “at a loss to explain why he committed the offences” and that he “wished that he had not done it”.

86. Mr Knight noted that the offender “appeared to have some insight into his condition and the need to engage in ongoing treatment and follow-up. He appeared to understand the nature and seriousness of his offending”.

87. In relation to the victim, HK, the offender stated that the abuse by a female cousin when he was aged between 9 and 11 may have been a factor in his own offending. In relation to the offending concerning JS, the offender stated that at the time of the offending, he thought he “should not be doing this”. He stated he was sexually aroused at the time and so “just kept doing it”.

88. Mr Knight assessed the offender as having an above average risk of re‑offending. In the opinion of Mr Knight, the offender suffers from a paedophilic disorder non-exclusive type sexually attracted to females. He noted that he did not meet the diagnostic criteria for post-traumatic stress disorder.

89. Mr Knight observed that the offender stated he was willing to complete any courses in custody that might assist in reducing his risk of re‑offending. To date, he has completed a domestic violence program through EQUIPS. Mr Knight recommended that the offender participate in the sexual offenders specific cognitive behavioural therapy whilst in custody and that upon his release he should engage with a suitably qualified mental health clinician with expertise in treatment of sexual offenders.

The relevance of the offender’s childhood

90. It was submitted on behalf of the offender that the Court could properly take into account the offender’s childhood hardships in accordance with the principles enunciated in Bugmy v R (2013) 249 CLR 571; HCA 37 and as warranting a reduction in his moral culpability.

91. I am satisfied that the offender has had a childhood characterised by abuse and also neglect, particularly in relation to his period spent in custody whilst in New Zealand. I am satisfied that those experiences do warrant a reduction in his moral culpability for the reasons set out in Bugmy v R.

Remorse

92. Whilst the offender did express some remorse to Mr Knight, in particular, in relation to the offending against JS he said as follows, he “feels real bad that he did it”, I give those expressions of remorse limited weight in circumstances where they were not on oath (see generally Imbornone v R [2017] NSWCCA 144).

93. Further, it is clear in my view, that the offender has little insight into his offending in circumstances where he told Mr Knight he was at a loss to explain his offending and denied to Dr Seidler that he had a sexual interest in children. I accept that such denial was in the context of a sexual offender who is yet to undergo sexual offender treatment. I do accept that the offender’s plea of guilty is an admission of his guilt in relation to the offending.

Prospects of rehabilitation

94. At this stage, any view about the offender’s prospects of rehabilitation must necessarily be guarded. He has long-standing alcohol issues and, in the opinion of Mr Knight, suffers from a paedophilic disorder that remains untreated.

95. It is positive that the offender has now accepted his guilt in relation to his offending and has also expressed a willingness to Mr Knight to complete any courses that could minimise his risk of reoffending. At this stage, I cannot find he is unlikely to reoffend.

Totality

96. In circumstances where I am dealing with the offender for more than one offence, I am required to consider the question of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be concurrent but, if not, there should be some accumulation (see Cahyadi v R (2007) 168 A Crim R 41; NSWCCA 1).

97. I am satisfied that some partial accumulation is warranted to reflect the separate victims and the overall objective criminality. Had I been imposing separate sentences for Counts 1 to 4, that is, those offences that occurred when the offender was 14 years of age, I would have allowed significant concurrency between those counts having regard to the offender’s age at the time of the offending.

Special circumstances

98. It was submitted on behalf of the offender that the Court would find special circumstances and vary the statutory ratio between the non-parole period and the parole period on the basis of the offender’s need for a longer period on parole to assist with his reintegration into the community and treatment for his significant alcohol problems.

99. The Crown conceded that the Court could find special circumstances also on the basis of the diagnosis of paedophilic disorder that would require treatment in the community.

100. I am satisfied special circumstances are established in circumstances where a longer period on parole will be needed to address both the underlying alcohol use disorder and the paedophilic disorder and I propose to vary the statutory ratio pursuant to s 44(2B), Crimes (Sentencing Procedure) Act.

101. In determining the appropriate sentences, I have had regard to s 3A, Crimes (Sentencing Procedure) Act and the purposes of sentencing.

102. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in respect of each offence pursuant to s 5 (1), Crimes (Sentencing Procedure) Act. I note that it was ultimately conceded on behalf of the offender that all counts warranted a full time custodial sentence.

103. I have had regard to the objective gravity of each offence, the relevant prescribed maximum penalties, the offender’s subjective circumstances and the prescribed standard non-parole periods in relation to Count 7 in accordance with s 54B(2), Crimes (Sentencing Procedure) Act.

104. The Court has also determined the appropriate sentences in accordance with s 25A(1), Crimes (Sentencing Procedure) Act which requires the Court to sentence the offender in accordance with the sentencing patterns and practices at the time of sentencing and not at the time of the offence. In addition, the Court has had regard to the trauma of sexual abuse on children as now well understood.

105. I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act.

106. Pursuant to s 53A(2)(b), the indicative terms are as follows:

1. Count 1, aggravated indecent assault (victim HK) - A starting term of 1 year discounted by 5% leaving a term of 11 months;

2. Count 2, aggravated commit act of indecency (victim HK) - A starting term of 6 months discounted by 5% for the plea of guilty leaving a total term of 5 and a half months;

3. Count 3, aggravated indecent assault (victim HK) - A starting term of one year discounted by 5% for the plea of guilty leaving a total term of 11 months;

4. Count 4, aggravated indecent assault (victim HK) - A starting term of one year discounted by 5% for the plea of guilty leaving a total term of 11 months;

5. Count 7, aggravated sexual intercourse with a child 10 to 14 years (victim JS) - A total term of 6 years with no discount applied for a plea of guilty with a non-parole period of 4 years.

107. Mr Swain, in relation to each offence, you are convicted.

108. I sentence you to a total aggregate sentence of 7 years to date from 29 November 2018 and expire on 28 November 2025. I fix a non-parole period of 4 years and 8 months to date from 29 November 2018 and expire on 28 July 2023. The earliest date upon which you will be eligible for parole is 28 July 2023.

109. I have found special circumstances and varied the ratio between the non‑parole period and parole period so you will spend longer on parole in order to provide you with assistance with treatment once released.

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Amendments

28 May 2021 - Further anonymisation of one name in accordance with statutory non-publication order.

Decision last updated: 28 May 2021