R v TH

[2019] NSWDC 793

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v TH [2019] NSWDC 793
Hearing dates:	15 October 2019
Date of orders:	06 December 2019
Decision date:	06 December 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 10 years with a non-parole period of 6 years 6 months
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child >10 <14 CRIME — Child sex offences — Sexual intercourse with child >14 <16
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Cheung v The Queen [2001] 209 CLR 1 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Markarian v The Queen [2005] HCA 25 R v King [2009] NSWCCA 117 R v Qutami [2001] NSWCCA 353 S v The Queen [1989] HCA 66 The Queen v Kilic [2016] 259 CLR 256
Category:	Sentence
Parties:	Regina (Crown) TH (Offender)
Representation:	Alexander Terracini (counsel) (Crown) Alexander Cassels (counsel (Offender)   Director of Public Prosecutions (NSW) (Crown) Legal Aid (NSW) (Offender)
File Number(s):	2017/00391171
Publication restriction:	Statutory non-publication order of the names of the Offender and the Victims or of any information which may enable their identities to be ascertained

EX TEMPORE REVISED JUDGEMENT

Sentence

1. In the course of the hearing of this matter there was reference to the report by the offender to the psychiatrist who provided a report of his victimisation in an offence of sexual assault upon him at a public swimming pool.  The Crown, between the hearing date and today has been able to access a copy of the indictment presented against an accused charged with offences of sexual intercourse upon the offender when aged nine and an act of indecency toward the offender when at the age of nine.  I shall refer to that in more detail when I come to that part of the reasons for the sentence I am about to impose.

Introduction

2. TH appeared for sentence in the District Court at Parramatta on 15 October 2019 upon two charges to which he pleaded guilty upon arraignment on 8 July 2019.  Before then he was committed for trial from the Local Court Parramatta, was arraigned in the District Court Parramatta on 8 November 2018 when he pleaded not guilty, whereupon his trial was appointed to commence on 1 July 2019.  On that date the proceedings were adjourned to allow continuing negotiations towards settlement of the issues and ultimately, on 8 July 2019 when re‑arraigned, the offender pleaded guilty.  The proceedings for the determination of sentence were appointed to 15 October 2019 when the evidence was tendered, including a victim impact statement that was read in open Court.  The offender did not give evidence.

The Offences

3. Count 1 charged that the offender:

"Between 1 October 2007 and 31 October 2009 in Merrylands in the State of New South Wales, did have sexual intercourse with RH who was a close family member, namely a sibling, of the age of 16 years". 

4. This offence is contrary to s 78A(1) Crimes Act 1900 which specifies a maximum penalty of imprisonment for eight years. Count 2 charged that the offender:

"Between 12 September 2014 and 30 June 2015 at Parramatta in the State of New South Wales, did maintain an unlawful sexual relationship with KW, then a child under the age of 16 namely ten years of age, in which [the offender] engaged in the following two or more unlawful sexual acts:

1.  That when [the offender] visited the complainant's home on three or more occasions, staying for a week or two each time, had penile/vaginal sexual intercourse with KW.

2.  That when [the offender] visited the complainant's home on three or more occasions, staying for a week or two each time, performed cunnilingus on KW.

3.  That [the offender] performed cunnilingus on KW (the first incident).

4.  That [the offender] had penile/vaginal intercourse with KW (the first incident).

5.  That [the offender] had penile/vaginal intercourse with KW (the bunny onesie incident).

6.  That [the offender] had penile/vaginal intercourse with KW (the park incident).

7.  That [the offender] had penile anal intercourse with KW (the park incident).

8.  That [the offender] performed cunnilingus on KW (the last incident).

9.  That [the offender] had penile/vaginal intercourse with KW (the last incident)."

5. This offence is contrary to s 66EA(1) Crimes Act 1900 which provided for a maximum penalty of imprisonment for 25 years for such conduct at that time. The maximum penalty has been increased to life imprisonment. It is uncontroversial that the sentence for this offence must be determined according to the benchmark provided by the maximum penalty specified at the time of the misconduct.

6. Section 66EA Crimes Act 1900 provides relevantly:

"(1)  A person who, on 3 or more separate occasions occurring on separate days during the period, engages in conduct in relation to a particular child that constitutes a sexual offence is liable to imprisonment for 25 years.

(2)  It is immaterial whether or not the conduct is of the same nature, or constitutes the same offence, on each occasion.

(3)  ...

(4)  ...

(5)  A charge of an offence against this section:

(a) must specify with reasonable particularity the period during which the offence against this section occurred; and

(b) must describe the nature of the separate offences alleged to have been committed by the accused during the period.

(6)  In order for the accused to be convicted of an offence against this section:

(a) the jury must be satisfied beyond reasonable doubt that the evidence establishes at least three separate occasions, occurring on separate days during the period concerned, on which the accused engaged in conduct constituting a sexual offence in relation to a particular child of a nature described in the charge; and

(b) the jury must be so satisfied about the material facts of the three such occasions, although the jury need not be so satisfied about the dates or the order of those occasions; and

(c) if more than three such occasions are relied on as evidence of the commission of an offence against this section, all the members of the jury must be so satisfied about the same three occasions; and

(d) the jury must be satisfied that the three such occasions relied on as evidence of the commission of an offence against this section occurred after the commencement of this section.

(7)  ...

(8)  A person who has been convicted or acquitted of an offence against this section may not be convicted of a sexual offence in relation to the same child that is alleged to have been committed in the period during which the accused was alleged to have committed an offence against this section.  This subs does not prevent an alternative verdict under (10).

(9)  A person who has been convicted or acquitted of a sexual offence may not be convicted of an offence against this section in relation to the same child if any of the occasions relied on as evidence of the commission of the offence against this section includes the occasion of a sexual offence.

(10)  ...

(11)  Proceedings for an offence against this section may only be instituted by or with the approval of the Director of Public Prosecutions.

(12)  In this section:

"Child" means a person under the age of 18 years, 

"Sexual offence" means any of the following:

(a) an offence under s 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 66A, 66B, 66C, 66D, 66F, 73, 74, 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 80A;

(b) an offence of attempting to commit an offence referred to in paragraph

(a);

(c) an offence under the law of a place outside of New South Wales that would, if it had been committed in New South Wales, be an offence referred to in paragraph (a) or (b).”

7. By his plea of guilty to this offence and the particulars appearing in the indictment, the offender acknowledges each of the elements which the Crown would have otherwise been required to prove.  He does not challenge the existence of the various aforementioned matters required by this provision from the prosecution of this offence and acknowledges each of the discrete episodes of misconduct which, in combination, attract punishment for the persistence with which he so engaged.

8. There is no standard non‑parole period for these offences for the purposes of Pt 4, Div 1A Crimes (Sentencing Procedure) Act 1999.

Form One Offence

9. When he is sentenced for the offence charged as count 1 in the indictment, the offender asks that pursuant to s 33 Crimes (Sentencing Procedure) Act 1999 the Court take into account an additional offence contrary to s 78A(1) Crimes Act 1900 committed against RH between 1 November 2007 and 30 November 2007.

10. The offender signed the Form 1 containing the relevant particulars which was also signed on behalf of the Crown and in Court he confirmed his wish that the offence be taken into account and admitted that he is guilty of that offence.  The additional offence shall impinge upon the sentence for the principle offence in which it is to be taken into account, requiring an appropriate increase in the sentence that would have otherwise been applied to the principle offence standing alone, thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the extent of the misconduct and the community's entitlement to retribution for all of his offences.

11. I have had regard to the judgement of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. I note the guidance there provided for sentencing Courts. The offender has gained a significant advantage not facing separate punishment for that serious misconduct but he has provided utility within the scheme that has been constructed legislatively to facilitate the administration of justice and to allow for the rehabilitation of such as this offender. He, therefore, should be given appropriate consideration for the utility thus reflected.

The Pleas of Guilty

12. The Crown concedes that the pleas of guilty should attract a discount of 10% to the sentence, as it would have otherwise been imposed, to reflect the utility the pleas provided, albeit at a late stage of the proceedings.  The Crown advises that there were negotiations over one week at the appointed time of the trial.  It is submitted on behalf of the offender that a discount of 20% would be appropriate.

13. It is noted that the delay in the pleas of guilty after the day upon which the trial was appointed to commence arose from the offender's illiteracy and his inability to appreciate the extent of the Crown case and its strength.  I note that there was time required, day to day, to allow the material to be read to the offender who was in custody and not in ideal for circumstances for that to occur. However to hold that the delay in the pleas is explained so as to justify a discount of this range would be to ignore the processes that followed upon the investigation and the initiation of the prosecution through the Local Court, including the service of the Crown brief and decisions made at that level for the conduct of the proceedings, before their arrival in the District Court for prosecution on indictment, which included the arraignment process and interlocutory steps toward appointment of the trial date to ensure that the parties were ready or would be ready to proceed at the appointed time.

14. There is no basis upon which to find that the offender did not understand the accusations against him including the conduct alleged upon which they were made.  The decision to await until the extent of the evidence available to the Crown to prove the charges it brings cannot be criticised but at the same time, when the opportunity is taken to consider that material before the decision to plead guilty to the conduct which the offender admits he engaged upon, he cannot thereupon expect a discount near to the maximum that the Courts traditionally allow according to the relevant statements and principle.

15. I agree with the Crown's submission regarding this, though in my view a discount closer to 15% would be more appropriate.  That will be applied to the individual sentence which I find appropriate upon the synthesis of objective and subjective facts upon which the sentences are to be determined including the extent to which there might be found contrition and prospects of rehabilitation. 

16. I have taken that view in light of what, on its face, appears to be a complex array of requirements for prosecution of this offence.

17. The legislation was introduced in relatively recent times in response to a decision by the High Court of Australia in S v The Queen [1989] HCA 66 which upheld an appeal because of the inability of the Crown to particularise with sufficient detail the individual offences with which the accused in that matter was charged. It has been the subject of judicial consideration at an appellate level but it is still, in relative terms, early days and I can understand why counsel and those instructing him would have been cautious to ensure that the offender had a clear understanding of the conduct of which he was accused and the extent to which it was captured by the legislation to which I have referred, and it is for those reasons that I have taken the trouble to quote what I see to be the relevant passages from that section in the Crimes Act 1900. Thus, for those reasons, I shall apply a discount between 10% and 15%. I have settled upon 12.5% and then rounded the indicative sentences to arrive at periods expressed in terms of years and months, abandoning the odd days that resulted upon a strict application of that percentage.

Pre‑sentence Custody

18. The offender was arrested on 27 December 2017 and has been in custody since that time.  The aggregate sentence I impose today shall commence on that date.

The Facts

19. The offender was born in 1988, thus between 1 October 2007 and 30 November 2007 he was approaching the age of 19 years and in the period between 12 September 2014 and 30 June 2015 he reached the age of 27 years.  The victim, RH, was born in 1991 and thus, at the time of the offending, was 16 years of age.  The victim, KW, was born in 2004 and was therefore ten years of age. 

20. There were two separate episodes of misconduct towards RH and, although the subject of one charge contrary to s 66EA(1) Crimes Act 1900, there were seven separate occasions of sexual assault upon KW. The complainants are biological siblings of the offender.

21. Their parents separated in or around September of 2006 after which the father moved to an address in Merrylands together with the offender and KW.  RH remained in Wellington with the mother for a short time until October 2006 when she came to Merrylands to reside with her father and her siblings.  Between 2008 and 2011 the offender resided in a granny flat at the rear of the home in Merrylands.  From 2011 he relocated to live predominantly with his mother in the Wellington and Parkes areas however he would come to stay with his father and siblings at an address in Parramatta.  The length of his stays would vary from a few days to several months.

22. Dealing first with count 1 on the indictment; in late October 2007 on a Friday night near to Halloween the offender and RH were with their younger siblings at home.  The father had gone to his girlfriend's house.  The younger siblings retired to bed early.  RH was in her room watching a DVD and was speaking to a friend on the phone when the offender came in to her bedroom.  RH was wearing boxer shorts, underpants and a singlet.  She was sitting in the middle of her bed.  The offender sat next to her on the bed on her right hand side and began to rub her thigh.  RH pushed his hand away however the offender continued placing his hand on her thigh.  RH finished the phone call to her friend and asked the offender, "What are you doing ...?” he said, "Come on [RH], just this once".  RH understood that the accused was seeking to have sex.  She said, "No, T, no".  He said, "Come on, just this once.  It won't happen again".  RH said, "No, it's wrong.  You're my brother".  The offender said, "If no‑one knows, it doesn't matter".  RH responded, "It's wrong.  It's disgusting".  The offender then said, "Well, if you don't I'll tell dad your secrets".

23. RH had previously smoked cannabis with the offender and was terrified that he would tell her father that she had done so.  She was also afraid that the offender would tell her father that she’d had a sexual relationship with a boyfriend which she did not want her father to know about.  The offender again then asked, "You going to do it?" RH responded, "Well, I'm going to have to if you're going to tell dad".  The offender then took a condom from his wallet, stood, pulled down his pants, placed the condom on his penis and told her to lay down.  She lay on the bed and he took off her boxers and underpants, throwing them on the floor.  He then pushed her legs apart with his hand and penetrated her vagina with his penis, moving in and out.  Neither spoke while this was occurring.  The offender ejaculated and stood.  She could see what must have been ejaculate within and at the end of the condom.  He put on his shorts while he had the condom on his penis and said, "Don't worry.  It'll never happen again".  He then walked out of the room.

24. The offence on the Form 1 occurred a few weeks later, sometime in November 2007.  The father was again at his girlfriend's house and had KW with him.  The other siblings were at their uncle's house and RH and the offender were at home.  About 11.30pm RH went to bed.  She was wearing a leopard print nightie and underpants.  She was in bed, nearly asleep, when the offender walked into the room and sat down on the bed next to her.  He was wearing boxer shorts.  RH saw on the clock that it was 12.25am.  The offender lit a cigarette and asked her if she wanted to have half.  She initially refused and said, "No, I'm going to sleep", however eventually took it at the offender's insistence.  The offender then lifted the sheet from her and started to rub her leg.  She said, "No, T, it's wrong".  He said, "This will be the last time".  RH replied, "The last time was meant to be the last time.  It's wrong".  The offender said, "This will be the last time, I promise you".  RH said, "No, T".

25. The offender replied, "I guess I'm going to have to tell dad your secrets".  She said, "Well, hurry up and get this over with so I can get back to bed".  The offender then took a condom from his wallet.  She rolled over and faced the wall and did not see him put the condom on.  He rolled her onto her back, lifted up her nightie, took down her underpants and threw them on the bed.  He pushed her legs apart and penetrated her vagina with his penis, moving up and down.  He ejaculated and stood up.  He pulled on his boxers.  She could see there was ejaculate at the end of the condom.  He said, "I swear to God this will be the last time".  She said, "It better be".

26. The offences against KW occurred in the following circumstances.  The offender visited the complainant's home on three or more occasions, staying for a week or two each time and during these periods he had penile/vaginal sexual intercourse with the complainant whilst also performing cunnilingus upon her. 

27. The complaint recalls the following. The first incident occurred one night after midnight when he came into her room, took down the covers on her bed.  She was wearing onesie style pyjamas with a bunny print on them.  KW pretended to be asleep because she did not want to get in trouble for being awake so late.  KW could hear heavy breathing and could smell smoke on the offender's breath. The offender climbed onto the bed on top of her and unzipped her onesie, removed her arms and pulled it down to her knees.  The offender then removed his penis from his pants.  The complainant continued to pretend to be asleep.  She rolled over in an attempt to prevent the offender touching her however he rolled her back onto her back, parted her legs with his hands before licking her vagina, putting his tongue into her vagina for about ten seconds.  He then used his hand to put his penis into her vagina and began to move in and out.  This was for a couple of minutes before KW moved when his penis came out of her.  The offender kept saying, "It's okay.  It's okay.  It's okay" and "Don't tell anyone about this.  It's our little secret".  The offender pulled his pants up and left the room.  KW then got up to go to the toilet and saw that he was in the bathroom with the light on.  She peeked around the door and saw the offender kneeling on the ground, "Chumming".  I take that to be a reference to her representation when she expressed herself using the term, “coming”.  She described, "The stuff that makes you pregnant".  The offender wiped it up with toilet paper and flushed it.  KW then went back to bed.

19. The next incident is the bunny onesie incident.  On one occasion when the offender was staying at Parramatta on a weekend, at approximately 6am, the offender entered KW's room and asked her to come out to the lounge room where he had been sleeping.  KW went with the offender and sat on the couch.  KW was again wearing her bunny onesie.  The offender then pulled her legs apart, retrieved some scissors and cut a hole in the crotch area of the onesie.  KW was not wearing anything beneath that garment.  The offender then knelt in front of the couch and put his penis inside of her vagina through the hole in her onesie.  This occurred for what felt like five minutes before the offender stopped.  KW then sat on another couch in the room and the offender gave her his phone and told her to watch any YouTube videos that she wanted.  KW watched YouTube videos for about ten minutes.  The offender sat on the couch and watched her for a while before going to the bathroom.

20. The park incident; on one occasion KW wanted to go to the park with her dad however he suggested that the offender take her instead.  The offender told KW that he had a tree house and said he would show it to her.  They walked together for approximately ten or 15 minutes to an area near the river.  KW remembers walking down some steps and being able to see the highway, the river and trees.  She described the area as being very dirty with a lot of rubbish around.  The offender led KW to a seat made out of dirt and rocks.  She was wearing shorts with flowers over the pockets and a T‑shirt.  The offender pulled her shorts and underwear down while she was standing and put his penis inside her vagina.  He was also standing up at his time but moved KW's body with his hands to enable him to insert his penis into her vagina.  This caused her some pain. On this occasion the offender also turned KW around and put his penis inside her anus which hurt.  KW recalls that the offender was breathing heavily but cannot recall whether this happened before or after he put his penis inside her vagina.  She was unsure what caused him to stop.  The offender asked KW if she wanted to stay and "Do this longer" and she said no.  The offender then told KW to pull up her pants and suggested that they go to the park.  On the walk to the park the offender said, "Don't tell anyone what we just done, it's our little secret".  They then walked to Holroyd Park which was close to their old house in Merrylands.  KW recalls that this incident occurred sometime near Father's Day because on the way home she found a flower that she gave to dad for Father's Day.  KW also thought that she was ten at the time.

21. The last incident occurred when she thought she was ten turning 11.  KW was in bed and thought she was wearing her flowery shorts and a T‑shirt.  She had gone to bed at or around 10pm and fallen asleep however woke when the offender entered her room.  Her blankets had fallen off her bed while she was sleeping and were already on the floor.  KW pretended to be asleep but saw the offender's beard.  The offender then pulled down her shorts and put his tongue into her vagina.  He then put his penis into her vagina and had sexual intercourse with her.  He stopped and left the room.  KW then got up to get a drink and saw that the offender was in the bathroom putting, "That white thing on the floor, before wiping it up".  The offender did not say anything during this incident but KW remembers he was breathing heavily.  KW never said anything to the offender during the incidents because she was too scared.

22. Complaint arose in the following circumstances. In July 2016 RH relocated to the Sydney area from Wellington.  Between 10 and 23 July, during the school holidays, KW stayed with RH and helped her unpack and settle in.  During this time KW disclosed to RH how the offender had behaved towards her.  This triggered memories of RH's own experiences with the offender and as a consequence the matter was reported to police.  KW was interviewed on 8 and 11 August 2016.  On 27 December 2017 the offender attended Parramatta Police Station.  He was arrested in relation to the charges relating to KW and was subsequently charged with the offences relating to RH.

23. There is a victim impact statement provided by RH.  There was no victim impact statement from KW.  The statement provided by RH was read on her behalf in the Court by her support person.  The document has been formulated with a series of dot points beneath a series of headings.  The first is the heading, "Restless nights" and then under there are a series of seven dot points describing restlessness, constant tiredness, crying in her sleep, difficulty falling asleep, nightmares, constant exhaustion, reliance upon caffeine, and the need to cancel events because of her tiredness.

24. Beneath the next heading, "Thoughts and feelings", she speaks of having lost her childhood, being forced to grow up too quickly, the need to keep busy to stop her thoughts that lead to her feeling depressed and overwhelmed, that she is fidgety with negative feelings about herself, feeling constant frustration, anger and pain.  She speaks of having self‑harmed as a child to rid herself of the thoughts.  There was an incident where she almost jumped in front of a car but was saved by her former partner.  She self-medicates to calm her thoughts and has the burden, she says, of worry and the sense of being tortured.

25. Beneath the heading, "Belief", she disavows any faith in God and speaks of everyone having their own God and being able to become their own God after going through their own hell.

26. Beneath the heading, "Anxiety", she speaks of social anxiety, not wanting to leave the house to go to the shops or to engage upon any other activity.  She has difficulty leaving the house even to see her doctor for medication.  It prevents her from spending time with and meeting new people.  She is constantly worried about the welfare of her younger siblings and has a sense of need to provide them protection.  The anxiety impacts upon her children.  She does not feel safe with them in Parkes, with a sense that people are watching her.  She has developed a stutter.  She suffers from obsessive compulsive disorder.  She cannot stand any dirt or dust.  She constantly needs to clean.  She cannot fall sleep if, according to her perception, the house is messy. The Court process has been exhausting, as well.

27. Under the heading, "Relationships", her ex-partner, with what appears to be great lack of sensitivity, referred to her as “incest”.  She does not like people touching her from the waist down.  She cannot look at people in their eyes.  She is scared to ask for help from others.  She feels unable to, "Date", because she does not feel safe or good enough.  She has no relationship with her family and has no family support and therefore feels isolated.  She did not develop appropriate attachments to her parents because of her fear and shame.  She has had to re‑evaluate what it means to her to be part of a family.  She developed false friendships, closed herself off from her friends, has trouble cuddling her son or being cuddled by her son.  She is overprotective of her children, has sleepless nights and again speaks of the constant burden of her pain.

28. Beneath the heading of, "Education and career", she writes that she became the class clown at school, and was rebellious.  She did not do well at school and did not attain an education, it appears.  She wanted to join the police force but lost this opportunity when she was excluded from school.  She left her job that she had obtained to allow her to manage the consequence of these events to her.  She has had trouble applying for work.  She cannot cope with interviews.  She is in debt.  She suffers constant exhaustion.

29. Beneath the heading, "Image of self", she feels dirty, not pretty enough.  She will show nobody her body.  She will not shower in front of others.  She has senses of shame and disgust and hates herself.

30. There is no psychological assessment upon the impact of the offences upon this victim.  The complainant summarised extensively the impact of these crimes upon her.  There has been an absence of opportunity for the offender to have tested her assertions, to qualify them to the extent that it might be possible.  Thus one must be circumspect when taking into account those representations.  The document has value, though, in the proceedings because it has provided the victim with the opportunity to confront the offender with her perception of the impact of these crimes upon her and has provided the Court with insight regarding the consequences that have continued for her.  The statement is not brought to account in aggravation of the offending to which the offender pleaded guilty or to amplify what is his moral culpability and it does not increase the punishment that he has so justly earned.

31. The Court has been given insight into the magnitude of the impact of these offences upon the victim.  I have taken it into account to mark the victim's perception of the impact of the misconduct upon her.  The statement is a reminder of what follows for victims and the impact of their perception of the reasons for the direction taken in their lives after such misconduct.  Taken in their entirety, the sequelae described are as one might expect.  Although her perceptions are no doubt significant for her, they do not, upon the material before me, permit a finding that they extend to a substantial psychological harm, justifying a finding that her suffering is an aggravating factor.

The Offender

41. The offender was born in 1988.  He is now 31 years of age.  He does not come before the Court clear of antecedent offences.  Though this misconduct is his most serious, the extent of his record and the nature of the offences he has accumulated, suggests disregard of his obligations one might expect of him as a member of the community. 

42. He was first before the Court as a child in May 2003 and thereafter has, time and again, returned to answer charges against him leading to various forms of conditional liberty and ultimately, incarceration.

43. The Courts have used all of the sentencing options available, no doubt, in their endeavours to provide scope for the offender's rehabilitation.  He has been called upon to answer for breaches of conditional liberty, including by further offending, has failed to appear on multiple occasions.  His antecedent offences have been possession of prohibited drugs on six occasions; custody of a knife on one; carrying a cutting weapon once; supplying prohibited drugs on two occasions; intimidation once; damage to property once; assault upon an officer once; possession of explosives once; possession of equipment for the administration of prohibited drugs once; common assault on five occasions; contravention of apprehended violence orders on four occasions; using an unregistered motor vehicle twice; using an uninsured motor vehicle twice; displaying misleading registration plates once; refusing to allow a blood sample to be taken once; driving whilst his licence was suspended on three occasions; driving under the influence once; failing to appear on five occasions; call up for breach of conditional liberty once; affray once; possession of a prescribed restricted substance once; goods in custody twice; driving whist disqualified once; and dishonestly obtaining financial advantage by deception once.

44. It is noteworthy that this misconduct fell within the period during which he was charged for these aforementioned offences on his antecedent report.  For his other offending, charges were preferred first on 12 January 2003, and then between 1 October 2007 and 30 November 2007 were the offences against RH.  Thereafter, the offender was charged with his other offending on 2 June 2011, 26 July 2011, 10 August 2011, 15 October 2011, 13 November 2011, 17 December 2011, 30 December 2011, 8 March 2012, 20 March 2012, 5 April 2012, 25 April 2012, 11 March 2013 11 June 2013, 19 June 2013 and 29 May 2014.  Then between 12 September 2014 and 30 June 2015 were the offences upon KW during which he was charged on 29 January 2015 with other offending.  Thereafter, he was charged with offences on 21 December 2015, 23 January 2016 and 4 January 2017. 

45. In custody he has been disciplined on three occasions; in November 2013 when he was in custody for earlier offending he received nominal punishment for avoiding the correctional centre routine.  In January 2018, after coming into custody for these offences, he was punished for refusing to provide a drug sample and in April 2019 was given punishment for failing to comply with centre routine.

46. The offender did not give evidence and accordingly one must approach with circumspection the representations attributed to him by the psychiatrist, who provided a report to which I shall now refer, in accordance with the judgement of Smart AJ in R v Qutami [2001] NSWCCA 353.

47. I have the report from Dr Gerald Chew written on 17 July 2019 drawing upon his assessment of the offender at the MRRC aided by his letter of instructions, what is said to be a criminal history, and a criminal record and the statement of agreed facts.

48. At the time of the assessment the offender was in protection.  By then he had been in custody one year and seven months according to his custodial record, although he is attributed in the report with custody of approximately two years.  His self-report included low mood, poor sleep, low energy, anhedonia (the inability to feel pleasure in the normally pleasurable activities), although I would be surprised if he used that word, and hopelessness without suicidal ideation.  He was taking methadone for his opioid problem.

49. The history taken includes past treatment for depression, past suicidal thoughts, sexual abuse at Kandos, treatment with medication prescribed by his general practitioner at the age of 22 years, suicidal thoughts at the age of 24, an attempted suicide when he consumed "Hundreds" of Dilatin tablets and a large quantity of Bourbon.  He reported opioid dependence for which he was prescribed with methadone, heavy use of heroin, fentanyl and methamphetamine intravenously before incarceration and heavy use of cannabis since the age of 16.  He also drank alcohol to excess.  He was born in Dubbo to parents who suffered a volatile relationship, including domestic violence by his father towards his mother and the sounds of his father forcing his mother to have sex.  The parents separated around 2006 when he was 17.  The distribution of the children between the parents is discussed.

50. He reported a sexual assault upon him at a public school by an older male which was unsuccessfully prosecuted. Now, as part of exhibit A, I have a copy of the indictment to which I earlier referred and a summary of facts.  The Crown has been unable to find either in a Court file or the holdings of the Director of Public Prosecutions or any record of instructions by the trial judge to herself in the course of the judgement ultimately leading to the acquittal of that accused.  The general fact sheet represents that on 26 February 1998 the offender made a statement to the police against the accused.

51. The accused is described in this document as a young person and that carries the implication that he was a juvenile at the time.  I see that his date of birth, according to this document, was 28 August 1984 and thus he would have been 13 years of age at the time the statement was made to the police.  This might have engaged the principle of doli incapax, the accused being less than 14 years of age at the time of the misconduct, said to have occurred on 25 February 1998 at Kandos in the swimming pool. 

52. It was alleged that he lay on the floor of the toilet block and began masturbating. He told the offender, when asked, that he was, "Wanking himself" and told the offender that he was, "Going to suck my dick".  The offender ejaculated.  It was also alleged that the accused threatened the offender with a dunking in the pool and uttered the words, "Suck my dick or I'll kill you".  The offender went into the cubicle with the accused.  The offender was made to place his mouth over the accused's penis which lasted for about ten seconds.  Penetration was to his teeth.  The offender then left the toilets after which his mother took him home where the disclosure was made that this had befallen him.

53. He claimed to Dr Chew that he experienced flashbacks and nightmares accompanying his vivid memories of the event.  That is not described in any adequate detail in the psychiatric assessment.  At the age of nine or ten he said he was the focus of girls aged 15 or 16 who engaged in sex games with him including sexual intercourse ultimately, but he did not attribute any negative experience from this.  He’d had two relationships sequentially from when he was between the ages of 21 and 26.  These included what he described as normal sexual intercourse.

54. There is no more detail of when these intimate relationships occurred but from the scant information provided in the assessment it would appear that the relationships were between the two periods in which he offended against these victims.  The occasions of his masturbation are discussed.  His education was limited because of slow learning.  He reads and writes poorly.  His work history is limited.  He is attributed with a major depressive disorder to which sexual abuse and family discord contributed.  Whether he has an intellectual disability requires a formal neuropsychological opinion.  There could not be formal diagnosis of paraphilia upon what Dr Chew was presented.

55. At para 34 Dr Chew wrote:

"At the time of the offending behaviour he was suffering from these conditions.  Additionally, he may have been affected by substances which increase his risk of offending.  His sexual history included abuse at eight by an adult male and nine to ten by older girls and hearing his father rape his mother may have contributed to his offending propensity". 

56. First, with regard to that the abuse that he suffered at eight was not by an adult male but by an accused of the age of 13 years according to the additional material that has been harvested by the Crown.

57. I note the qualification reflected in the use of the term, "May", in the paragraph with regard to the suggestion that his misuse of substances has contributed to some extent to these crimes; there is no evidence upon which I could find that he was acting under the influence of substances at the time of the offences and moreover, the suggestion is met by s 21A(5AA) Crimes (Sentencing Procedure) Act 1999 which provides, "In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time that the offence was committed is not to be taken into account as a mitigating factor".

58. Allowing for the past experiences which Dr Chew attributes to the offender, there is no adequate explanation before the Court to connect those experiences with the offender's decision to so engage with his younger siblings.  The agreed statement of facts which he has signed and to which he pleaded guilty are consistent with no less than he took his pleasure at the expense of his sisters when he must have known that what he was doing was wrong.  RH resisted his advances with representations in those terms and yet he persisted with threats that he would expose her to her father for her conduct in another context.  I am not persuaded that the psychiatric assessment includes any relevant history that is shown to have a causative link to the offender's decisions to commit these offences as might provide a basis upon which to mitigate the offender's moral culpability.

59. He was also assessed by psychologist, Kris L North, who provided a rather more comprehensive report on 24 September 2019 with a much more detailed history.  The report was upon the results of two consultations on 19 August 2019 and 2 September 2019 respectively, including clinical and psychometric assessment.  He is assessed with a medium to high risk of reoffending both sexually and generally.

56. The family history of domestic violence gleaned in these consultations is consistent with Dr Chew's report save that there is no representation attributed to the offender that he witnessed forced sexual intercourse by his father at the expense of his mother, though he acknowledged witnessing sexual intercourse which he did not understand at the time.  He is attributed with cannabis use here.  His learning difficulties are consistent with the added information that he was expelled for assaulting a teacher and truanted regularly.  He is here attributed with three relationships although only two are discussed.

57. The first of these led to the birth of a daughter now aged ten years from a chaotic relationship which included the placement of the child with the mother's former partner, recovery of the child from him, transfer of her to her former partner's sister and current steps by his parents to obtain custody.  He is said to have been visibly distressed when discussing this after recent information came to him that she had been sexually abused.  He has two other children aged eight and five years respectively, born to his relationship with another woman.

58. His substance use history is comparable to his representations to Dr Chew.  Hepatitis C, with which he was afflicted from sharing needles, has been cured.  His reference to past sexual experiences when he was a child, the incidents with older females, did not include sexual intercourse as earlier represented but was limited to exposure of their genitalia and touching which he said he then found gross.  He said he was aged 7 when he was the victim of sexual assault at the public swimming pool.

59. The intrusive thoughts arising from this are suggestive of post-traumatic stress.  His sexual history includes his first experience of sexual intercourse at the age of 17 years with up to ten sexual partners since then with his interest in pornography developing in conjunction with methamphetamine use which increased his sex drive and performance.  As with the report from Dr Chew there is no explanation attributed to the offender to explain why he surrendered to the decision to engage sexually with his sisters though the likely explanation is summarised at para 3 of this report in the following terms:

"In summary, the assessment of Mr H revealed a history of learning and behavioural problems stemming from childhood and was assessed as satisfying the criteria for an intellectual disability, mild (DSM‑5 319; ICD‑10 F 70) based on a cognitive assessment administered on 2 September 2019. It was my opinion that Mr H's low cognitive function likely predisposed him to the onset of antisocial behaviours and substance use in adolescence and he presented with an extensive offence history."

64. It is notable that this opinion is expressed with regard generally to antisocial behaviour and not to the sexual offending for consideration and the determination of sentence in these proceedings specifically.  In other words, upon the assessment by Psychologist North the offender's low cognitive function is likely to have contributed to his misuse of prohibited drugs and antisocial behaviour generally including the offending upon which he engaged at the expense of his sisters.  This view I find consistent with a pattern of offending patent in the antecedent record and the chronological sequence of the occasions when the offender was charged with criminal offences in the course of which he committed these present crimes.

65. The diagnosis offered, bearing in mind that there is some controversy over whether a psychologist is qualified to offer diagnoses, is expressed in terms that what was found satisfies the criteria for major depressive disorder, stimulant use disorder and intellectual disability.  Recommendations are made with regard to treatment and management.

Submissions and Consideration

66. The Crown provided submissions in writing as did counsel appearing on behalf of the offender.  The Crown correctly submits in my view that this offending is well above midrange of objective seriousness.  In respect of the second count I am reminded of the age of the victim, the vulnerability thereby, the extent of the offending over a period of eight months, the nature of the sexual assaults upon which the offender engaged comprising cunnilingus, penile/vaginal intercourse and penile/anal intercourse.  His relationship with her should have been one of protection, he being her older brother.

67. There was, therefore, a breach of trust though one needs to be careful in relation to the assessment of the significance of that feature of the case.  I note, however, that the elements of the offence do not include the nature of the relationship between the offender and KW.  Some of the offending was in her home.  On the other occasions he was with her in circumstances where one must conclude that he was responsible for her care. 

68. There is some authority, as I have said, from appellate Courts dealing with this provision, helpfully summarised in the sentencing bench book.

69. As I read the cases and the summary there provided, there is some controversy as to how the Court must approach this particular offence brought upon discrete episodes of sexual assault.  I am of the view that the question that I must resolve is, first of all, where the offence should lie on the statutory scale and that it is not appropriate to approach the task by considering the sentences that the individual offences would have attracted had they been prosecuted separately.  To do otherwise, in my view, would be contrary to the intuitive sentences approach that has been identified in the High Court in cases such as Markarian v The Queen [2005] HCA 25.

70. That said, I proceed on the basis that the offences were not isolated instances but were episodes of misconduct along a continuum which exposed the offender to the prosecution pursuant to this provision.  Of interest is the discussion in the sentencing book of the approach required of a trial judge after a determination by a jury.  The law requires, of course, that a judge in those circumstances must determine the facts that are relevant to sentence.  This section requires, as I have discussed earlier in this judgement, that the jury might be called upon to explain what offences they were unanimously satisfied had occurred.

71. It is observed that it was held in Cheung v The Queen [2001] 209 CLR 1 that there is the possibility that the jury might not be willing to or able to provide the information that the judge needs to have, whereupon the judge would be compelled to sentence the offender after trial upon the view most favourable to the offender. That consideration is also relevant to my decision to increase the discount for utility from 10% to 12.5%.

72. With regard to count 1 and the Form 1 offence, the Crown refers to the breach of trust rising by reason of the relationship which, in this case, is an element or intrinsic characteristic of the offending.  There was also the emotional blackmail upon which the offender engaged to have his way with his sister.  The offending occurred in the victim's home and there has been the distress revealed in the victim impact statement with which I have already dealt.  I am reminded of what the Court of Criminal Appeal said in R v King [2009] NSWCCA 117 at 41 which I might say is a reflection of what the recent royal commission into institutional child abuse found after their extensive investigation:

"It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long term psychological and emotional injury resulting from a sexual assault on a child who is old enough, as was the complainant, to appreciate the significance of the act committed by the offender.  It should be assumed that there is a real risk of some harm of more than a transitory nature occurring.  That should be a factor taken into account when sentencing for a child sexual assault offence.  It is an inherent part of what makes the offence so serious."

73. Then there is an invitation to consider what was said in The Queen v Kilic [2016] 259 CLR 256 at 21, commenting upon the departure from past sentencing practices with respect to sexual offences. There is no question that in the modern era the punishment has increased upon the enhanced understanding of the impact of these egregious crimes.

74. The Crown has dealt with submissions regarding the utility of the plea of guilty to which I have referred.  I am reminded of the offender's history including that many of his offences arose in a domestic violence setting.  The relevance of his antecedents is discussed.  This is an aggravating matter but only with regard to questions of specific deterrence and the extent to which he might have otherwise had leniency had he come before the Court free of a criminal history.  It does not aggravate his offending, moral culpability assessed in each episode of misconduct or the punishment that he has so justly earnt in this case.

75. The question arises as to special circumstances about which I am invited to be circumspect in the light of the evidence that has been adduced on behalf of the offender, but on balance I am satisfied that he does not need an extended period on parole to build upon whatever rehabilitation he is able to achieve in custody.  He is burdened with limitations as discussed by psychologist North and that must impact upon the burden he will experience in the custodial setting including the period during which he is subject to protection. There is no evidence before me that he is suffering any greater hardship by reason of his status as a prisoner under protection, however, he may rely upon his intellectual limitations and thus, synthesising those matters, I am satisfied there is sufficient material to find special circumstances to reduce the custodial component of the aggregate sentence I am about to announce.  The commencement of the sentence is discussed by the Crown to reflect his past custodial confinement, pending the determination of the matter.

76. The offender's written submissions are copious and I have already dealt with the submissions made with regard to the discount that should be applied.  I am reminded of the relevance of the past criminal antecedents and authorities speaking to that point.  It is conceded that the commission of the offences in the home is an aggravating factor to be brought to account.  It is said that the injury and emotional harm was not substantial.  That might well be so but within the parameters of the discussions I have already offered, I am satisfied that there is sufficient injury and emotional harm, particularly suffered by RH, that should inform the sentencing exercise in this case, and in light of the authorities, to which I have referred, one must proceed upon the basis that such abhorrent behaviour will have sequelae for both of these victims.

77. Prospects for rehabilitation are discussed.  He has a moderate high risk for sexual recidivism.  It is suggested that the offence charged in count 1 and correspondingly, those to be applied to count 2, lead to a finding that the offending is on the low spectrum of seriousness.  I reject that submission.  This misconduct charged in count 1 and in the conduct replicated in the Form 1 offence, leads me to the view that objective gravity of the offending falls above midrange ever so slightly, but over midrange. I have had regard to what Johnson J has provided in his judgement in Tepania v R [2018] NSWCCA 247 beginning specifically at para 112.

78. There is then a lengthy discussion in the written submissions on behalf of the offender describing the individual incidents in which the offending in count 2 occurred and I am invited to review the type of the sexual activity involved; that there was some level of coercion upon KW, that she was vulnerable; there could be no other finding in my regard, at the age of ten.  This offence, I find also to be above midrange of objective seriousness in accordance with the submissions made by the Crown, perhaps at a slightly higher level than the point identified for count 1 and the Form 1 offence.

79. There is a lengthy discussion of the subjective case offered on behalf of the offender which I have already discussed with reference to the psychological assessment.  I have been reminded of the totality principle and that there must be an aggregate sentence to reflect the totality of the offending.  I am invited to avoid a crushing sentence. 

80. There is an interesting discussion by Basten J in the decision of the Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301, dealing with the concept of a crushing sentence, the imprecision of the term, and the circumstances in which it is often advanced in cases such as this. I tend to agree with what Basten J wrote in that case.

81. The term, "Crushing sentence", is an emotive term and I do not believe it is an appropriate term to use.  There are offences that require severe punishment.  Often the word, "condign" is used with reference to punishment because of a misunderstanding that it means severe; condign punishment is punishment that is appropriate to the circumstances of a case. There is to be punishment in this case and it will be significant.  To complain about a sentence because it might be thought to be "Crushing", as Basten J observed, ignores the fact that Parliament has provided for offences that carry, as a maximum penalty, life imprisonment.  Anybody sentenced to gaol for life would no doubt have the sense of being “crushed” by such an order but there is some conduct that is so egregious that no other outcome can follow.  In this case, of course, the offender will not suffer a life imprisonment but he will receive what I believe to be condign punishment which will reflect, appropriately the synthesis of objective facts and the subjective case that has been presented on his behalf.

82. The task before me includes the need to assess where upon the spectrum of offending the misconduct upon which each of the charges brought is to be placed.  The task is challenging and always a matter of judgment upon which minds will very often differ.

83. As I said, guidance is found in the judgement of Johnson J in Tepania v R beginning at para 112. His Honour there discussed the term moral culpability, with reference to motivational issues, emotional stress, as factors that might be relevant to the determination of moral culpability. There could be no suggestion of any provocation or non‑exculpatory duress in this case. His motive I find to have been sexual gratification at the expense of these children, his sisters. His moral culpability is to be seen at the higher level.

84. There are background circumstances, the precise nature of which and extent of which are difficult to determine in light of the competing representations that are found in the two reports, but taking them together, allowing for the differences that appear, there is a background in this offender's life that allows the Court to come to the view that there's been some contribution to his attitudes that developed through his formative years, perhaps because of his parents' disrupted marriage or relationship and the lack of adequate care and supervision that might have followed. However, it is not to be overlooked that he has continued on in life with further sexual partners, two leading to relationships from which children were born and yet, throughout this life pattern, he chose to misuse his sisters as he did.

85. The submission made on behalf of the offender was that the moral culpability and objective gravity falls lower on the scale than advanced by the Crown.  I do not agree.  For the reasons advanced by the Crown I am satisfied upon reflection that in each case the gravity of the offending falls above midrange as I have said; in the case of the offence charged in count 1, it is at a point below half way between midrange and the upper end and in the case of count 2 I find it rests about half way between midrange and the upper end of objective seriousness, applying the discussion offered by Johnson J.

86. The core consistency between what is attributed to the offender by Dr Chew and Ms North, employing the appropriate circumspection as advised by Smart AJ in R v Qutami, allows me to accept in general terms this history attributed to the offender, including the dysfunctional family circumstances leading to the dissolution of his parents' relationship, but it is not possible, for the reasons I have stated, to be definitive as to the extent of the disharmony or the true impact it had upon him.  His counsel advised that the offender did not want to call his mother to Court to speak to those matters because it would contribute further distress, but the result of that is that I have not entirely consistent attributions upon which I cannot conclude definitively what he experienced and the impact of those experiences in that family setting.

87. I cannot find that the sexual experiences described, including the sexual assault he reported, contributed to his behaviour particularly in light of the nature of his sexual development explained in great detail by Ms North.  As indicated earlier, my findings in this instance are the offender was burdened by his limitations which contributed to his deterioration into antisocial behaviour generally, including this misconduct for which he is to be sentenced today and the misuse of prohibited drugs.  Whether his drive was increased through the misuse of methylamphetamine as he suggested, I am unable to determine.

88. I find, however, that he chose to use his sisters for his sexual gratification, aware of the relationship he had with them and their respective ages and regardless of the wrongfulness involved of which he was completely aware.  He must have appreciated the evil implicit in his behaviour, consistent with his distress represented by him in the course of his discussions with Ms North of his knowledge that his daughter, aged ten, was the victim of sexual assault.

89. In line with s 5 Crimes (Sentencing Procedure) Act 1999 there is no alternative other than fulltime imprisonment in this case. All of the purposes of sentencing in s 3A of the Act are engaged but notable are the aspects of punishment, denunciation, recognition of harm and specific deterrence and protection. 

The Sentences

90. In each case the offender is convicted and I take into account in the sentence imposed on count 1 the Form 1 offence.  I will certify the Form 1 confirming that I have taken it into account.

91. For the offence of unlawful sexual intercourse upon a close family member I impose a sentence of imprisonment of 3 years and 7 months, reduced to reflect the utility of the plea of guilty to which I have referred.

92. For the offence of unlawful sexual relationship, count 2 on the indictment, the indicative sentence identified is imprisonment for 9 years.  Again, this sentence is reduced for the utility of his plea of guilty.  I impose an aggregate sentence.

93. The head sentence is one of 10 years, commencing on 27 December 2017 including a non‑parole period of 6 years and 6 months to expire on 26 June 2024 and the head sentence will expire on 26 December 2027.

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Amendments

05 February 2020 - Correct typo

Decision last updated: 05 February 2020