R v Taylor

[2023] NSWDC 577

District Court

New South Wales

Medium Neutral Citation:

R v Taylor [2023] NSWDC 577

Hearing dates:

6 December 2023

Decision date:

14 December 2023

Jurisdiction:

Criminal

Before:

Coleman SC DCJ

Decision:

(1) For the offences of which he was found guilty and the offence to which he pleaded guilty, the offender is convicted.

(2) The offender is sentenced to an aggregate term of imprisonment for a period of 20 years, with a non-parole period of 13 years, to date from 26 July 2021. The first date the offender is eligible for release to parole is 25 July 2034. The head sentence will expire on 25 July 2041.

(3) The indicative sentences are as follows:

(a) Count 1: 18 months imprisonment

(b) Count 2: 12 months imprisonment

(c) Count 3: 11 years imprisonment

(d) Count 5: 3 years 6 months imprisonment

(e) Count 6: 12 years imprisonment

(f) Count 7: 8 years imprisonment

(g) Count 8: 18 months imprisonment

Catchwords:

CRIME – Child sex offences – Multiple offences – Aggravated indecent assault – Sexual intercourse without consent – Circumstances of aggravation – Victim under the age of 16 years – Sentencing following trial

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 61M, 114, 562AB

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21B, 25AA, 25D, 53A

Cases Cited:

Bravo v R [2015] NSWCCA 302

Bugmy v The Queen (2013) 249 CLR 571

Cheung v R (2001) 209 CLR 1

Filippou v The Queen (2015) 256 CLR 47

Johnson v The Queen [2004] HCA 15

Jonson v R [2016] NSWCCA 286

Leach v The Queen (2007) 230 CLR 1

McL v The Queen (2000) 203 CLR 452

R v Chan [2000] NSWCCA 345

R v Cranston [2023] NSWSC 1004

R v Isaacs (1997) 41 NSWLR 374

R v MAK [2006] NSWCCA 381

R v Olbrich (1999) 199 CLR 270

R v PGM [2008] NSWCCA 172

Savvas The Queen (1995) 183 CLR 1

Strbak v The Queen (2020) 267 CLR 494

Weininger v The Queen (2003) 212 CLR 629

Category:

Sentence

Parties:

Director for Public Prosecutions (NSW) (Crown)
Sean Taylor (Offender)

Representation:

Counsel:
K Mulley (Crown)
S Doupe (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s):

2021/00213316

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), there is a statutory non-publication order in regard to any matter which identifies the complainant or which is likely to lead to the identification of the complainant.

JUDGMENT

1. The offender, Sean Taylor, appears for sentence today after being found guilty by a jury on 17 May 2023 of six offences, namely:

1. One count of aggravated indecent assault, the relevant circumstance of aggravation being that the victim was under the age of 16 years (being count 2 on the indictment). This is an offence under s 61M(1) of the Crimes Act 1900 (NSW) and carries a maximum penalty of 7 years imprisonment.

2. Three counts of aggravated sexual intercourse without consent, the relevant circumstance of aggravation being that the victim was under the age of 16 years (being counts 3, 6 and 7). These are offences under s 61J(1) of the Crimes Act and carry a maximum penalty of 20 years imprisonment.

3. One count of being armed with intent to commit an indictable offence, the relevant indictable offence being intimidation (being count 5). This is an offence under s 114(1)(a) of the Crimes Act and carries a maximum penalty of 7 years imprisonment.

4. One count of stalk/intimidate with intent to cause fear of personal injury (being count 8). This is an offence under s 562AB(1) of the Crimes Act and carries a maximum penalty of 5 years imprisonment and/or a fine of 50 penalty units.

2. The offender is also to be sentenced for one further count of aggravated indecent assault, the relevant circumstance of aggravation being that the victim was under the age of 16 years, to which he pleaded guilty on 20 March 2023 (being count 1). As stated above, this is an offence under s 61M(1) of the Crimes Act and carries a maximum penalty of 7 years imprisonment. He pleaded guilty to this offence on the first day of the trial and is therefore entitled to a 10% discount on the sentence to be imposed for this offence.

Fact Finding after Jury Verdict

3. In sentencing an offender after a verdict, the relevant principles with respect to findings of fact for sentence were recently set out by Payne JA in R v Cranston [2023] NSWSC 1004 at [3] as follows:

1. A sentencing judge has a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;

2. Sometimes, however, it may be impossible for the sentencer to resolve a given factual question in a way that tends to either increase or decrease the sentence. In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70];

3. If a party at sentencing seeks to rely on a particular fact, that party has the onus of proving the fact in question: Olbrich at [25]. There is, however, no general joinder of issue in sentencing and, unlike at the trial, no generalised onus of proof: Olbrich at [25];

4. If the prosecution seeks to rely on a fact, they must prove it beyond reasonable doubt. If the offender seeks to rely on a fact, the standard of proof is on the balance of probabilities: Olbrich at [27]-[28]; Leach v The Queen (2007) 230 CLR 1; [2007] HCA 3 at [41]; Filippou at [64], [66]; Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32];

5. After a jury returns a verdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury’s verdict: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [14], approving Isaacs at 376-377;

6. A sentencer cannot know, in many cases, exactly what facts the jury found or what evidence they accepted. The sentencer is constrained by a verdict only when that verdict, by necessary implication, reveals that the jury accepted particular evidence or resolved facts in a particular way: Cheung at [17]; and

7. Within this constraint, the sentencer can make findings as they see fit: Savvas v The Queen (1995) 183 CLR 1 at 8. There is no requirement to accept all of the Crown’s case as put to the jury: Cheung at [7]. Nor is the judge required to take a view of the facts most favourable to the offender: Isaacs at 377D.

4. With those principles in mind, I make the findings of fact set out below.

Background Facts

5. The victim in this matter, JM, was born in 1983. When the victim was aged 2, she was removed from her biological mother’s care and placed into foster care. In January 1986, when aged 3, she was placed into the care of a couple called NS and RS, who lived in the Hunter Region of New South Wales.

6. In 1994, when she was aged around 10, NS and RS separated and the victim moved with her foster mother, NS, to Quirindi to live with NS’s elderly mother. When she was aged 12, her and her foster mother moved into their own rental property in town in Quirindi. After a short period, the pair moved into another house. By this time, the victim had commenced Year 7.

7. Whilst living in this house, the victim’s foster mother commenced a relationship with the offender. At some point in 1996, the offender moved into the home with the victim and her foster mother.

8. The offending conduct occurred on various occasions between 1 January 1996 and 14 February 1997. For counts 1, 2, 3, 5, 6 and 7, the victim was aged between 12 and 13 years of age and was in Year 7, and the offender was either 28 or 29 years old. In regard to count 8, the victim was aged 13 and the offender was 29.

Count 1 – Aggravated indecent assault (child under 16)

9. Count 1 occurred on an occasion where the victim was at home after school, hanging out with a friend in the loungeroom, whilst her foster mother was in the kitchen. The victim stood up from the lounge and when she did so, the offender also stood up and grabbed her on the vagina over her clothing.

10. The victim responded by punching the offender in the face. The offender laughed and called out to the victim’s foster mother, saying “She just punched me in the face”. NS came into the lounge room to see what was happening, and the victim told her that the offender had grabbed her on the crotch. The victim recalls that her foster mother called her a bitch and told her to stop being dramatic.

Count 2 – Aggravated indecent assault (child under 16)

11. Count 2 relates to an incident when the victim was at home in the loungeroom, this time alone with the offender. The victim and the offender were sitting on a three-seater lounge but, despite the size of the lounge, he sat right next to her so their legs touched. The offender suddenly and unexpectedly rolled his body towards hers, with most of his upper torso connecting with the left-hand side of the victim’s body. He was trying to roll on top of her. The victim was able to quickly move off the lounge and away from the offender and ran out of the house. Both the victim and the offender were fully clothed.

12. Consistent with the jury’s verdict that this conduct constituted indecent assault, the act of the offender trying to roll his body on top of the victim on the lounge and his upper body contacting her in the way and in the circumstances it did was indecent.

Count 3 – Aggravated sexual intercourse without consent (child under 16)

13. Count 3 refers to an incident which occurred one afternoon when the victim had returned home from school and the offender was in the loungeroom upon her arrival. The victim and the offender got into an argument and, as she walked towards her bedroom, the offender got up off the lounge chair and chased her down the hallway.

14. The victim felt a thump to her head and fell into the doorway of her bedroom. She blacked out and when she came to, the offender had his hand on her face and was moving her head around, saying words to the effect of, “There we go, I’ve got you”. When the victim sat up, she was still wearing her school shirt, her skirt had been pulled up and her underwear had been removed. The offender left the bedroom, laughing.

15. At some time when the victim felt okay to walk, she went to the bathroom to run a bath. The offender walked into the bathroom and said to her that if she said anything to anyone, he would kill her and her foster mother and that no one would believe her. The victim got into the bath, and as she laid in it, she could feel a stinging and burning sensation in her vagina. The victim continued to feel pain the next day.

16. Consistent with the jury’s verdict of guilty on this count, I find that the offender penetrated the victim’s vagina whilst she was blacked out after he had struck her to the head from behind, causing her to hit the doorframe. This constitutes the act of sexual intercourse the subject of this count.

17. There is an issue as to what was used to penetrate the victim’s vagina. The Crown submits that the only available inference is that the offender used his penis to penetrate the victim’s vagina. It submits that this inference is consistent with, and flows from, the fact that there was a burning sensation to the victim’s vagina which is the same painful sensation she said she suffered after the penile/vaginal penetration the subject of count 6. The Crown says there is no evidence of any object being in the offender’s hands prior to the assault.

18. The offender’s counsel submits that the Court could not be satisfied beyond reasonable doubt that it was the offender’s penis which was used to penetrate the victim’s vagina. He submitted that in the circumstances where the victim cannot remember anything about the penetration as she was blacked out or semi-conscious, the Court could not be satisfied what penetrated the victim’s vagina.

19. I accept the submissions of counsel for the offender.

20. I cannot be satisfied beyond reasonable doubt that it was the offender’s penis which penetrated the victim’s vagina. It may have been his finger (or fingers) or some other object used by him. Such penetration may equally have caused the burning sensation felt by the victim afterwards. There is no evidence (medical or otherwise) before me which would establish that only penetration by the offender’s penis could have caused such a sensation in the child victim’s vagina.

21. The crucial finding is that the offender penetrated the victim’s vagina. Whether that was with his penis, another part of his body, or an object does not matter for the purposes of penetration constituting sexual intercourse. I will later address whether the inability to find that it was the penis of the offender or anything else which was used to penetrate the victim’s vagina impacts on the determination of the objective seriousness of this offending.

Count 5 - Armed with intent to commit indictable offence

22. Count 5 refers to an incident one night in which the offender entered the victim’s bedroom with a steak knife whilst the victim was in bed. He placed the knife against her cheek and threatened to kill her, saying that if she said anything to anyone about what he had done, he would kill her and her foster mother.

Count 6 – Aggravated sexual intercourse without consent (victim under 16)

23. Count 6 relates to an occasion where the offender entered the victim’s bedroom one afternoon with a knife when they were home alone. He placed his hand on her chest and pushed her back onto the bed. As she tried to scramble up the bed to get away from the offender, he brought the knife up to her face. The victim covered her face with her arms. The offender removed the victim’s clothing and underwear and had penile-vaginal intercourse with her. The victim was unsure as to how long the intercourse lasted but stated that it was a while.

24. The offender ejaculated inside the victim’s vagina. After he finished, he laughed and left the room. After a while, the victim ran a bath and laid in it for some time. She felt the sensations of stinging and burning to her vagina.

Count 7 – Aggravated sexual intercourse without consent (victim under 16)

25. Count 7 relates to an occasion when the offender entered the victim’s bedroom one afternoon. He pushed her onto the bed and told her to ‘stay there’. The victim attempted to move back and sit up, but the offender pushed her down.

26. The offender removed the victim’s pants and underwear and proceeded to have penile-vaginal intercourse with her. After he had finished, the offender again left the room laughing. The victim stayed in her bedroom for a while before having a bath.

27. There is an issue as to whether the offender ejaculated inside the victim. The Crown submits the evidence allows the Court to infer that he did. The offender’s counsel submits that such a finding cannot be made beyond reasonable doubt on the evidence of the victim.

28. The victim said (T 49.36-40) that the intercourse stopped when the offender “finished”. She was asked whether he ejaculated. She said: “I think so, yes”. I regard this as her being uncertain as to whether he did or not.

29. This evidence can be contrasted with her evidence regarding count 6 where she said that the offender ejaculated (T 40.50-41.1). In cross-examination (see T 112.36-44), she said that this was the first time he had ejaculated following a sexual assault. She was asked how she knew that he had ejaculated, and she said: “He was finished…. [h]e left the room. He was laughing. Semen came out of my body.” She gave no evidence of semen coming out of her body when asked about the intercourse the subject of count 7, nor was she asked to explain why she thought he had ejaculated.

30. Based on the evidence, I cannot find beyond reasonable doubt that the offender did ejaculate following the intercourse the subject of this count. Whether the absence of such a finding impacts upon the objective seriousness of this offending will be discussed below.

Count 8 – Intimidation

31. Count 8 refers to an incident which occurred whilst the victim, her foster mother and the offender were on a trip to Sydney to visit the offender’s son. On the way, they stopped to get petrol and whilst NS was paying at the service station, the offender gave the victim a ring and said words to the effect, “You’re mine. This is yours. We’re together”. The victim slapped the ring out of his hand and when NS returned to the car, the victim told her what the offender had done. The victim’s foster mother replied, “Stop being a bitch. He’s trying to be friendly”.

32. After arriving in their accommodation in Sydney, the offender pinned the victim against a wall, using his forearm across her chest and the other arm touching her crotch, so that she was unable to move. The offender threatened the victim and said to her, “I told you. You are mine. We are together”. This combination of the verbal and physical actions of the offender constitutes the intimidation in count 8.

33. As this was happening, the victim’s foster mother walked into the room and the offender walked off.

Complaint and investigation

34. Shortly after the trip to Sydney, the victim returned home after school one day to find that her foster mother and the offender had moved out. The victim was placed into a new foster home and had no further contact with NS or the offender.

35. When the victim was in her late 30s, she began to experience flashbacks to the sexual abuse she had experienced when she was 12 to 13 years old. In November 2020, she looked up her foster mother on Facebook and sent her a message, which NS replied to after a few months. A month after this contact, the offender sent the victim a friend request on Facebook. This prompted the victim to make a formal complaint to police about the offences committed by the offender in 1996 and 1997. The offender was subsequently arrested for these offences on 26 July 2021.

Objective Seriousness

36. Any offending, particularly any sexual offending, against children is objectively a very serious matter. The legislature has signalled by the relevant maximum penalties for these offences the seriousness with which they are rightly regarded. Those maximum penalties serve as guideposts to be taken into account by the courts. The abuse of children for the sexual gratification of an adult is a violation of the child’s innocence and often, as here, an abuse of their trust, which will be met with a sentence that reflects the condemnation of such conduct.

Count 1 – Aggravated indecent assault (child under 16)

37. In regard to sentencing for offences of indecent assault, the Crown referred to R v PGM [2008] NSWCCA 172 and submitted that it is of considerable significance when assessing the objective seriousness of the indecent assault of a child to consider the actual character of the assault, including the degree of physical contact involved. Here, it was the offender grabbing the victim on her vagina.

38. The Crown submitted that the fact that the offender touched the victim’s vagina, that she was only 12 or 13 years old when the offence of indecent assault encapsulates an age bracket up to 16 years old, the fact that it was committed in the presence of a friend, and the age disparity between the offender and the victim are all relevant to the assessment of the objective seriousness of count 1. It was submitted the offender had actual knowledge that the victim was not consenting to the contact.

39. The Crown overall submitted the offence was in the low range of objective seriousness for offences of this type, and the offender agreed with this submission.

40. I accept that the offending was in the low range. It was an indecent assault on a young victim.

41. The offending is aggravated by it being committed in the home of the victim where she was entitled to feel safe (s 21A(2)(eb), Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSPA’)). I reject the offender’s counsel’s submission that this aggravating factor does not apply. In Jonson v R [2016] NSWCCA 286, it was held that this aggravating factor can apply whether or not the offender is an intruder or is entitled to be in the home, including if he or she lived there. An additional aggravating factor is that the offender breached a position of trust, in that he was in a de-facto relationship with the victim’s foster mother and lived in the house (s 21A(2)(k), CSPA).

37. The offending is mitigated by a plea of guilty entered by the offender (s 21A(3)(k), CSPA).

Count 2 – Aggravated indecent assault (child under 16)

43. In regard to count 2, I accept that this must have been a frightening experience for the victim, given the unexpected nature of a grown man attempting to roll on top of her, particularly as it followed a prior indecent assault, being count 1. The Crown submitted that the offending falls within the low range for offences of this kind.

44. The offender submitted that this offence falls within the lowest end of the range for these types of offences.

45. I consider that the circumstances of the assault and the nature of it mean that it falls towards the bottom of the range of seriousness for offences of this type.

46. Once again, it is aggravated by the same factors I have identified for count 1, namely it was committed in the home of the victim and the offender abused a position of trust in relation to the victim.

Count 3 – Aggravated sexual intercourse without consent (child under 16)

47. By rendering a verdict of guilty to count 3, the jury accepted on the evidence that the offender had penetrated the victim’s vagina whilst she was blacked out, either with a part of his body or an object. As I have said, I cannot determine beyond reasonable doubt whether it was his penis, some other part of his body or an object.

48. I do not think this matters in terms of the assessment of the objective seriousness of the offending. That is, I do not think that by reason of me being unable to determine whether the offender used his penis (or something else) to penetrate the vagina of the victim lessens the objective seriousness.

49. The facts are that the offender made contact with the back of the victim’s head and she fell into the doorframe. She blacked out or became semi-conscious. She was helpless in that state. The accused must have known she was semi-conscious. He then penetrated her vagina.

50. The Crown also submitted the offender had actual knowledge that the victim was not consenting, given that she had attempted to run away from him and she was not able to consent in her semi-conscious state and the offender knew this. I accept that this is so.

51. The Crown further submitted that the offender made threats to the victim to ensure her silence, so that she did not disclose what he had done to her but also to ensure he could continue to offend against her sexually. It was overall submitted that this offence falls towards the high range of objective seriousness for offences of this type.

52. The offender submitted that the victim was not in a “semi-conscious” state at the time of the assault (as submitted by the Crown) and would not have had the conscience experience of the assault, which would have been objectively more traumatic and serious. The offender submitted that the offence sits above the mid-range.

53. I do not accept the offender’s submissions that the state of consciousness of the victim and the consequent lack of awareness of what was occurring lessens the objective seriousness of the offending. The offender took complete advantage of the victim, and the state he had caused her to be in, to penetrate her.

54. I regard this as a very serious example of this type of offending – certainly above the mid-range of objective seriousness and towards the top of that range.

55. Once again, it is aggravated by the same factors I have identified for count 1, namely it was committed in the home of the victim and the offender abused a position of trust. Additionally, it involved actual violence against the victim (s 21A(2)(b), CSPA) by the offender holding or hitting her head such that she fell into the doorway and became semi-conscious.

Count 5 - Armed with intent to commit indictable offence

56. The Crown submitted that the threats made by the offender during count 5 were designed to ensure the victim’s continued silence so that he could continue to offend against her. It was submitted that this would have been a terrifying experience to have a knife placed against her face accompanied by threats to kill, and therefore falls slightly above the mid-range for offences of this kind.

57. The offender submitted this offence falls at the mid-range. It was noted that the duration of the offending was brief and there was no actual bodily harm occasioned to the victim.

58. I accept the Crown submissions. The offending in the victim’s bedroom late at night when the offender was armed with a knife, together with the nature of the threats made, places this offending at just above the mid-range.

59. Once again, it is aggravated by the same factors I have identified for count 1, namely it was committed in the home of the victim and the offender abused a position of trust in relation to the victim.

Count 6 – Aggravated sexual intercourse without consent (victim under 16)

60. In regard to count 6, the Crown noted that the offender ejaculated in the victim’s vagina, which makes the offence objectively very serious as it carries with it the associated risk of pregnancy. Force was used by the offender to commit the offence and the victim experienced pain to her vagina afterwards. It was submitted that holding a knife against the victim’s face was an implied threat that he would use it if she did not comply and that the offender had actual knowledge the victim was not consenting. It was overall submitted that this offence falls toward the high range of objective seriousness.

61. The offender submitted that it is open to the Court to find that the objective seriousness of this offence is above the mid-range, but not at the highest end of the range, in circumstances where the offence did not include an injury and was not described to be of long duration.

62. I consider this to be a very serious example of this type of offending. The offender used force to engage in penile-vaginal intercourse with the victim. She was covering her face with her arms, evidencing her terror at the assault. She was completely vulnerable to his attack by reason of the age and size difference and being home alone. The offender ejaculated inside the victim, which does increase the objective seriousness in the manner submitted by the Crown.

63. The offending falls above the mid-range and towards the top of the range.

64. Once again, it is aggravated by the same factors I have identified for count 1, namely it was committed in the home of the victim and the offender abused a position of trust in relation to the victim.

Count 7 – Aggravated sexual intercourse without consent (victim under 16)

65. In regard to count 7, the Crown submitted that this offence falls within the mid-range of objective seriousness for offences of this type. This was on the basis that the offender ejaculated in the victim’s vagina; force was used by the offender as he pushed the victim onto the bed; the offender had actual knowledge she was not consenting; and the victim experienced pain following the offence.

66. The offender submitted that in the absence of a finding that the offender ejaculated inside the victim, the offending sits at, or below, the mid-range of objective seriousness.

67. I have stated already that I do not consider I can find beyond reasonable doubt that the offender ejaculated inside the victim. Nevertheless, the assault involved the offender pushing the victim onto her bed and penetrating her vagina with his penis. She was in her room after school.

68. I assess the offending to be at the mid-range.

69. Once again, it is aggravated by the same factors I have identified for count 1, namely it was committed in the home of the victim and the offender abused a position of trust in relation to the victim.

Count 8 – Intimidation

70. In regard to count 8, the Crown submitted that these threats were designed to silence the victim from further disclosures to her foster mother by making her fearful of the consequences of doing so. It was overall submitted the offence falls within the mid-range of objective seriousness.

71. The offender submits that the words used alone do not establish the intimidation. That is established by the words taken alongside the physical actions of the offender. It was brief and there were no specific threats made. I accept this is the case.

72. I consider this offending falls below the mid-range.

73. I accept the Crown submission that the offending is aggravated by it being a breach of trust by the offender. I do not accept the physical actions of the offender were such so as to constitute actual violence.

Crown’s Further Submissions on Objective Seriousness

74. The Crown made further submissions as to the objective seriousness in [68]-[70] of its written submissions, including as to the objective seriousness of the sexual offending generally. Those submissions dealt with the so-called short duration of the offending, that the offender must have had actual knowledge that the victim was not consenting to the sexual acts and that the offences were representative of further uncharged conduct of the offender against the victim. I have had regard to those submissions in reaching the determinations as to the objective seriousness that I have indicated.

Aggravating/Mitigating Factors

75. As for the statutory aggravating factors under s 21A(2) of the CSPA, I have dealt with these when considering each of the offences.

76. There was a debate within the written submissions of the parties as to whether all of the offending was aggravated by reason of the victim being vulnerable within the meaning of s 21A(2)(l) of the CSPA. I do not regard that section as applying. Whilst she was young and at home often by herself when some of the offending occurred and thus vulnerable to the offender’s actions, I do not think this brings her within s 21A(2)(l). That circumstance of aggravation is more linked to victims being vulnerable to offences because of their age, employment or situation. I do not think that the fact of the victim being in foster care puts her within that category. Up until the offending occurred, she had a reasonably good relationship with her foster mother who seemed to have done her best to care for her and treated her as her child. I also note that the age of the victim is one ingredient of the sexual offences.

77. As to mitigating factors, for count 1, I have noted the guilty plea to this count.

78. The offender’s counsel also submits that the offending was not part of a planned or organised criminal activity (s 21A(3)(b), CSPA). So much can be accepted, however, I do not regard this, in the circumstances of this case, to be a significantly mitigating factor.

79. It was also submitted that the offender is unlikely to re-offend and has good prospects of rehabilitation. I will return to these matters.

Subjective Circumstances

80. In terms of the subjective circumstances of the offender, I have been provided with a psychological report of Dr Thomas Dornan dated 20 August 2023. I will not detail all of the matters in the report but summarise the subjective matters relevant to my considerations.

81. At the outset, before listing those matters, insofar as it is necessary to deal with and consider the opinions of Dr Dornan, I will where necessary refer to his evidence before me which leads to some of those opinions not being pressed, or more limited in their application. I must add that there were several obvious errors in the report, such as references to the offender being the oldest of his siblings yet his youngest brother was 12 years older than him, and that the offender’s mother and father had several children when he was the sole child of that union and his siblings were half-siblings from his mother’s subsequent relationship. Additionally, at one point, the name of the offender was wrong. Obviously, sometimes typographical errors and the like may occur. But some of the errors in this case were more than that and evidenced the author not taking enough care to ensure the correctness of simple matters on a very important report.

82. The offender reported that the relationship between his mother and father ended when he was an infant and that he has never met his biological father. Instead, he was raised by his mother, whom he reported having a positive bond with and being securely attached to. He stated that the family never had any money, but that his childhood was initially “very normal” and that he “supposed [he] was happy”.

83. The offender’s mother re-partnered during his childhood with his stepfather, whom the offender stated would consume alcohol every night and would become violent towards the offender, his mother and his siblings. He stated he was often the target of his step-father’s abuse and would often run away to hide from him.

84. By the age of 13, the offender reported that he began to struggle with emotional and behavioural dysregulation and started to engage in antisocial behaviours. He was sent to live with his maternal grandmother, and this led to feelings of rejection and abandonment towards his mother. At the age of 13 or 14, the offender was caught by police whilst drunk and was sent to Yasmar Juvenile Justice Centre.

85. Dr Dornan recorded that the offender reported that whilst he was in juvenile detention, he was repeatedly physically abused by staff members and an attempt was made by a staff member to sexually assault him. This part of Dr Dornan’s report, insofar as it refers to the sexual assault, or attempted sexual assault, cannot be accepted.

86. The offender gave evidence before me on the sentence hearing. He said there had been no sexual assault, nor even an attempted sexual assault. Rather, he felt there was grooming but another inmate intervened and prevented a sexual assault. He said the grooming was that he was subjected to a strip search at a place where (he later learned) an officer who had sexually assaulted others was present. He denied any attempt to sexually assault him. I did not understand him to say that the strip search itself was the grooming as that happened all the time (and still occurs at the correctional facility he is now at). As I understood his evidence, the grooming was the officer who had apparently been sexually assaulting others getting the offender alone so as to be able to sexually assault him - but that was thwarted by the other inmate as I have mentioned.

87. Dr Dornan in evidence was challenged on this aspect of his report. He said that the draft of the report had been corrected from the offender being sexually assaulted, to there having been an attempted sexual assault. He said he recalled the offender telling him someone had tried to grab his penis but there had been no anal penetration. He said this was not during a strip search.

88. Clearly, there is a disconnect between the evidence of the offender and the recollection of Dr Dornan and what is recorded in his report. I accept the evidence of the offender. I do not accept there was any attempted sexual assault on the offender. I do not accept, therefore, that any opinion of Dr Dornan as to any condition or consequence suffered by the offender as a result of an attempted sexual assault can be relied upon. Dr Dornan accepted, perhaps somewhat reluctantly, that his opinion with respect to the consequences of the attempted sexual assault would not be correct.

89. After his release into the community, the offender began to abuse alcohol and his offending behaviours increased, resulting in him returning to juvenile detention on a number of occasions.

90. In regard to his schooling experience, the offender indicated that he had fond memories of his early school years, he was a good student, and that he established and maintained some positive friendships. He continued his education whilst in juvenile detention and was able to complete his Year 10 School Certificate, before making the decision to leave school permanently.

91. After a brief period of unemployment after leaving school, the offender was able to find stable employment for several years, first as a wardsman at a nursing home and then as a greenkeeper’s assistant at the local golf course. However, he was eventually placed on a disability support pension for a degenerative back disorder which he has struggled with since the age of 20. Since going on the pension, he has made some extra money rebuilding and refurbishing computers for sale.

92. The offender reported that he first consumed alcohol around the age of 13 or 14 years old with his peers and that he engaged in problematic alcohol consumption until early adulthood, when he ceased drinking in favour of illicit substance use. In his early 20s, the offender was first introduced to heroin, which he used intravenously on a daily basis and quickly became significantly addicted to. I note that the offender said in evidence before me that he was not using heroin at the time of the offending. Consequently, Dr Dornan’s opinion that his heroin dependency exacerbated the offender’s poor decision making and lack of consequential reasoning and its association with his offending conduct, cannot be relied upon.

93. After approximately 10 years, the offender began using amphetamines as a means of achieving abstinence from heroin and reported that he felt better as a result, as he was able to work and avoid withdrawal symptoms. In his early 40s, the offender switched from amphetamines to crystal methamphetamines. After a particularly bad episode of drug-induced psychosis, the offender achieved abstinence from illicit substances in or around 2016.

94. The offender reported having two significant intimate relationships in his life, the first of which occurred in his early 20s and the second of which was with the victim’s foster mother. That relationship lasted approximately 13 years and ended in 2008, when his partner left him to pursue a relationship with a man she had met online. In regard to his relationship with the victim, the offender indicated he believed that they had enjoyed a good relationship and denied ever engaging in any violent or inappropriate behaviour towards her.

95. Dr Dornan opined that the offender met the criteria for a diagnosis of Persistent Depressive Disorder with mixed features and that he exhibited some problematic personality traits consistent with a personality disorder with anti-social features. Dr Dornan opined that the offender described symptoms consistent with a diagnosis of Post-Traumatic Stress Disorder throughout his childhood and into his mid-30s, but reportedly no longer experiences those symptoms.

96. Dr Dornan assessed the offender’s risk of sexual recidivism using various risk assessment tools and concluded that the offender posed an overall moderate risk of contact sexual recidivism. This was on the basis that he presents with a number of salient risks (including his denial or minimisation of the offences, his previous drug use and poor mental health) and only a few protective influences.

97. Following the evidence of Dr Dornan, it was accepted by counsel for the offender that a submission that there was a causal link between the offender’s upbringing, any mental health issues and the offending conduct could not be pressed. That concession was well made. Dr Dornan’s evidence in the end was that any adverse early childhood experiences and consequent mental health issues suffered by the offender were not materially causal of, or even contributing factors to, his offending but provided context to the offending and to the offender’s thought processes at the time.

98. I do not accept that the offender’s upbringing was such that amounts to profound deprivation to enliven the principles in Bugmy v The Queen (2013) 249 CLR 571. The evidence ended with the only relevant matters from the early childhood of the offender which could be said to go to this deprivation were his exposure to the violence of his stepfather and his alcoholism and the exposure to violence whilst in juvenile detention. The offender said he considered the actions of his stepfather to be “normal for the times”. His evidence was that he otherwise had a good relationship with his mother and siblings and was happy at school.

80. Whilst I do not downplay the conduct of the stepfather in being drunk and aggressive or the violence at juvenile detention, and I will take those matters into account as part of his subjective case, I do not consider them to be circumstances of the type, when the evidence of his youth and upbringing are considered as a whole, that would be such to enliven Bugmy. I do not consider the evidence establishes any matters which would reduce his moral culpability for the offending.

Remorse/Insight

100. As I have noted, the offender still does not accept he committed the offences. He said he “accepts the verdicts” but does not accept that he actually committed the offences. He says he hopes the errors of the verdicts can be corrected on appeal. So much is his right, but I must sentence him on the facts that I have found consequent upon the verdicts of guilty delivered by the jury and his plea of guilty to count 1.

101. The offender thus has no insight into the offending or to the harm it has caused to the victim.

102. He has no remorse as he does not accept he has offended. He is entitled to hold those views and his sentence will not be increased by reason of them.

Prospects of Rehabilitation

103. I have noted Dr Dornan considered that the offender was a moderate risk of sexual re-offending. That is a matter of concern and the offender would benefit from sexual offending programs to enable him to gain insight into his offending. However, I note that the offender is now 56 years old and he will be spending a significant part of the rest of his life in gaol and I consider this reduces his risk of sexually re-offending.

104. Additionally, I note that the offender has not committed sexual offences before and whilst he does have a record of prior offences, this record does not aggravate his offending, rather it means he is not entitled to leniency. I also note that there was a lengthy period from 2003 to 2009 when he committed no offences.

105. His counsel submits the Court should therefore find he has good prospects of rehabilitation. He also points out that the offender has been abstinent from drugs since 2016.

106. I consider the material before me supports a finding that the offender’s prospects of rehabilitation are reasonable. The inevitable result of the nature and circumstances of his offending mean, as I have said, that he will be in custody for a lengthy period of time and will not be a young man when he is released to parole.

107. I do not regard his risk of re-offending generally as significant.

Victim Impact Statement

108. I received a victim impact statement. It was read in open court by the victim. It was a telling and moving account of the impact the offences have had, and will continue to have, on the victim. She should be commended for the bravery she has shown in coming forward as she has and in the way she has dealt with the offending against her. I accept the offending has caused her, and will continue to cause her trauma. I will take the harm that has been caused to her into account in the sentencing exercise.

ss 21B and 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW)

109. It is accepted by the parties that these sections apply to counts 1, 2, 3, 6 and 7, being the sexual offences.

110. The effect of this is that the offender will be sentenced for these counts based on sentencing patterns and practice as at the time of sentencing. However, the standard non-parole period (SNPP) for any offence is to be that (if any) at the time the offences were committed. Here, that means there are no SNPPs for the sexual offences.

111. I must have regard to the trauma of sexual abuse on children as now understood. I have referred to the trauma caused to the victim. I accept that child sexual offences have a long-lasting, often permanent, adverse and traumatic impact upon its victims. The offender will be sentenced having regard to this impact and trauma.

112. The offender submitted that the delay in the offences being reported and then prosecuted means that he has lost the opportunity to be dealt with when sentencing practices and principles were different prior to amendments to the sentencing regime. I do not accept this is a factor I should take into account. The offender has not established any matter which would mean that he has been prejudiced by any delay so as to make it a mitigating factor. For the avoidance of doubt, I accept the Crown submissions at [9]-[14] of its supplementary submissions in this regard.

Sentencing Principles

Purposes of Sentencing

113. As part of the instinctive synthesis of the sentencing process, I must have regard to the purposes of sentencing in s 3A of the CSPA.

114. As has already been stated, it is well known that child sex offences have a profound and deleterious effect on the victims for many years, if not the whole of their lives. Psychological damage may follow (see the discussion in Bravo v R [2015] NSWCCA 302 at [48] and the authorities there cited).

115. The purposes of sentencing of specific and general deterrence, retribution and protection of the community are prominent in this case. There is a need for the offender, and others who may be minded to similarly offend, to know that crimes like these against children will be met with significant and lengthy terms of imprisonment. Such offending will be denounced, recognising the harm it does to its innocent victims. I expressly recognise the harm done to the victim in this case.

116. There is no issue that the s 5 threshold has been crossed and that no other sentence other than one of imprisonment is appropriate for each of the offences.

117. The offending was predatory, sometimes violent abuse of a child who should have been able to trust the offender and not be subjected to the violations he perpetrated on her. His sexual offending can only be put down to him satisfying his lust and exercising power over the victim. All of the offending was serious and some of the sexual offending falls towards the higher end of objective seriousness. It must be met with the sternest of punishments. Having regard to his age, the offender now faces a significant period of the remainder of his life in gaol. So much is the consequence of his offending.

Aggregate Sentence

118. I propose to impose an aggregate sentence pursuant to s 53A of the CSPA. I am required therefore to set out an indicative sentence for each offence. I accept that in determining the overall sentence I impose on the offender, I must have regard to the principle of totality. This requires me to calculate a sentence in respect of each offence, consider the principles governing accumulation and concurrency, and review the aggregate sentence to consider whether or not it is just and appropriate.

119. There will be some concurrency to take into account the principles of totality. There will also be some cumulation to reflect the separate criminality of the offending which occurred on different occasions.

120. I must look at the totality of the criminal behaviour of the offender, ask myself what is the appropriate sentence for all of the offences and avoid a crushing sentence: see Johnson v The Queen [2004] HCA 15, McL v The Queen (2000) 203 CLR 452 at [15] and R v MAK [2006] NSWCCA 381.

121. I am required to have regard to the fact the offender is being sentenced for multiple offences and to ensure that the ultimate sentence imposed is appropriate for the totality of the offending and to the offender’s personal circumstances: see R v Chan [2000] NSWCCA 345.

Discount

122. The offender is entitled to a discount of 10% in regard to count 1, pursuant to s 25D(2)(b)(ii) of the CSPA. The offender was convicted of the remaining offences following trial and, therefore, no relevant discount applies.

Commencement

123. The offender has been in custody bail refused solely referrable to this offending since his arrest on 26 July 2021. The sentence imposed will therefore be backdated to commence on this date.

Special Circumstances

124. The offender submitted that there should be a finding of special circumstances because of:

1. The numerous childhood adverse experiences suffered by him which bore on his offending conduct;

2. His age and difficulties with his degenerative back condition which will make custody more onerous for him; and

3. His need for an extended period of supervision in the community to help him reintegrate into the community, having regard to his age and probable health when he is ultimately released.

125. I also observe the offender said in his affidavit he had been subjected to many lockdowns since he has been in custody and is subject to weeks of quarantine when he moves facilities. He also said his back condition is bad and impacts on work he can do in prison when such work is available. Whilst he said in evidence he can do some work, I accept that his back condition is problematic for him and will not improve with age and will make his custody more onerous.

126. The Crown submitted that the length of the term of imprisonment that must be imposed for such offending will allow for a sufficient period on parole to assist with the offender’s reintegration and to provide for community-based supervision.

127. Whilst I accept the Crown submission that the offender will be in custody for a significant period of time and the time on parole under the statutory ratio would be sufficient to enable supervision in the community, I do accept that the matters raised in the offender’s affidavit and the second and third submissions made by his counsel support a finding of special circumstances.

128. There will be a finding of special circumstances which will modestly adjust the statutory ratio.

Sentence

129. Mr Taylor:

1. For the offences of which you were found guilty and the offence to which you pleaded guilty, you are convicted.

2. For count 1 (including 10% discount), I indicate a term of imprisonment of 18 months;

3. For count 2, I indicate a term of imprisonment of 12 months;

4. For count 3, I indicate a term of imprisonment of 11 years;

5. For count 5, I indicate a term of imprisonment of 3 years and 6 months;

6. For count 6, I indicate a term of imprisonment of 12 years;

7. For count 7, I indicate a term of imprisonment of 8 years;

8. For count 8, I indicate a term of imprisonment of 18 months;

9. I set an aggregate term of imprisonment of 20 years.

10. I set a non-parole period of 13 years.

11. The sentence will commence on 26 July 2021 and expire on 25 July 2041.

12. The first date you will be eligible for release to parole is 25 July 2034.

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Decision last updated: 21 December 2023