R v TK

[2024] NSWDC 451

District Court

New South Wales

Medium Neutral Citation:

R v TK [2024] NSWDC 451

Hearing dates:

16 May 2024, 9 August 2024, 20 September 2024

Date of orders:

23 September 2024

Decision date:

23 September 2024

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

(1)   The offender, having pleaded guilty, is convicted of the offences.

(2)   I impose a total aggregate sentence of 6 years imprisonment to expire on 16 September 2030.

(3)   I impose a non-parole period of 3 years 7 months to expire on 16 April 2028.

(4)   The earliest date the offender is eligible to be released on parole is 16 April 2028.

(5)   The offender’s medical record, reports of Dr Le and Oliver Brecht, and these remarks on sentence are to be provided to corrective services. I recommend that the offender be immediately placed into protective custody.

Catchwords:

CRIME – indecently assault child under 16 - sexually touch child aged 10-16 - groom child under 14 for unlawful sexual activity – multiple victims over several years – guilty plea at trial – no remorse – consideration of offender’s ill health – custody more onerous

Legislation Cited:

Crime (Sentencing Procedure) Act 1999, ss 10, 10A, 21A(5A), 25AA(3), 25D(2)(c), 53A

Crimes Act 1900, ss 61M(2), 66DB(a), 66EB(3), 91H(2)

Cases Cited:

Baden v R [2020] NSWCCA 23; Giles-Adams v R; Preca v R [2023] NSWCCA 122

Corby v R [2010] NSWCCA 146

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81

EG v R [2015] NSWCCA 21

Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539

Hall v R [2021] NSWCCA 220

LIU v R [2023] NSWCCA 30

LN v R [ 2020] NSWCCA 131

R v Burrell (2000) 114 A Crim R 207

R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v Smith (1987) 44 SASR 587

Category:

Sentence

Parties:

Rex
TK

Representation:

Counsel:
Mr R Thomas (Offender)

Solicitors:
Office of the Department of Public Prosecutions (NSW) (Crown)
Kim Bolas Criminal Law Specialist (Offender)

File Number(s):

2022/00032076

Publication restriction:

There is to be no publication of a name that identifies or is likely to lead to the identification of the victims.

Judgment

1. The offender pleaded guilty to the following offence:-

1. Count 1 – Indecently assault child under 16 in accordance with s 61M(2) of the Crimes Act 1900 with a maximum penalty of 10 years imprisonment and a standard non-parole period of 8 years.

2. Count 2 – Sexually touch child aged 10-16 in accordance with s 66DB(a) of the Crimes Act 1900 with a maximum penalty of 10 years imprisonment and no standard non-parole period.

3. Count 3 – Sexually touch child ages 10-16 in accordance with s 66DB(a) of the Crimes Act 1900 with a maximum penalty of 10 years imprisonment and no standard non-parole period.

4. Count 4 - Sexually touch child ages 10-16 in accordance with s 66DB(a) of the Crimes Act 1900 with a maximum penalty of 10 years imprisonment and no standard non-parole period.

5. Count 5 – Groom child under 14 for unlawful sexual activity in accordance with s 66EB(3) of the Crimes Act 1900 with a maximum penalty of 12 years imprisonment and a standard non-parole period of 5 years.

6. Count 6 – Possess child abuse material in accordance with s 91H(2) of the Crimes Act 1900 with a maximum penalty of 10 years imprisonment and no standard non-parole period.

2. The plea of guilty entered in the Local Court was adhered to on the sentence hearing.

3. The maximum penalty for the offence is an indication of its seriousness and acts as a sentencing guidepost or reference point. The standard non-parole period with respect to Counts 1 and 5 act as further sentencing guideposts and reflect the seriousness of each of these offences.

4. Admitted on behalf of the Crown were the following: -

1. C1 – Indictment

2. C2 – Charge certificate

3. C3 – Agreed facts

4. C4 – Signed Form 1 document

5. C5 – NSW criminal history

6. C6 – Custodial history

7. C7 – Victim impact statement of JD

8. C8 - Sentencing Assessment Report

5. Admitted on behalf of the offender were the following: -

1. O1 - Report of Dr Le 15 November 2022

2. O2 - Supplementary report of Dr Le dated 19 February 2024

3. O3 - Psychologist report of Oliver Brecht dated 5 September 2024

Agreed facts

6. The offender was born in October 1948 and during the period of the offending the offender was aged between 67 and 73. The victims were born in 2003 (LK), 2005 (ET) and 2008 (JD). The offender is the biological grandfather of LK. The offender was living at an address in the Southern Tablelands with his wife and son. It is a two-bedroom dwelling together with a marquee gazebo which contained a hot tub. The offender had met JD and ET through his granddaughter LK. The offender formed a relationship with each of the victims.

7. The offender first me ET when she was 12 years old and in year 7. The victim JD is the younger sister of LK’s former partner. The offender was aware of JD’s age in circumstances where she had told the offender she was 12 turning 13. Further, on her 13 birthday the offender helped organise her birthday party. The offender, as a "tradition", purchase mobile phones for the victims on their 13th birthday.

Conduct in relation to LK

8. When LK was 13 the offender started giving her massages whilst she laid naked on his bed. In doing so he would use palm massage oil.

Count 1

9. When LK was around 13, the offender gave her a massage in his bedroom. Upon lying on the offender's bed, the offender told her to remove her clothes so that he could massage her and prevent oil getting on them. As a result, LK lay naked on her back. The offender touched her breasts and around her vagina. LK turned onto her stomach and the offender touched her back and the “crevices” around her vagina although did not penetrate her vagina. The offender told LK that he was going to do a little bit more and thereafter moved his hands closer to her vagina. In response to LK saying he did not need to do that, the offender stopped the massage.

Sequence 22 - Form 1 on Count 1

10. Between December 2017 and December 2019, the offender massaged LK for a second time at his house. The offender touched LK around the vagina and on her breasts including over her nipples whilst she was naked.

11. By way of context evidence, in December 2021 when LK was just over 18 years old, the offender massaged her again and incited JD to sexually touch her. This offending is dealt with in Sequence 23.

Conduct in relation to JD

12. On the first week of the school holidays following the completion of term 2 (June to July 2021), JD (aged 12) and ET (aged 16) stayed at the offender’s home. JD had attended with her father and two brothers. On one of the nights, the offender drew a bath for JD and ET and instructed them to bathe together “to save hot water". The offender asked the victims to choose a “bath bomb" which he then placed in the bath and watched the victim’s undress. The offender told JD that she should not tell her father they were having a bath as he may become suspicious. Following the bath, they both proceeded to the offender’s room to get dressed in accordance with instructions from the offender. JD's father was sleeping at the time and had not given JD permission to take a bath.

13. During the same school holidays JD returned to the offender’s home and stayed for another three days. The offender again told JD, and his granddaughter LK, to shower together in order to save hot water. LK began undressing in front of the offender however JD showed some reluctance. The offender told JD that it was okay to undress in front of him as he as he was used to it and “they all had bodies". Accordingly, JD undressed in front of the offender. LK and JD thereafter proceeded to shower and bath together before dressing in the offender’s room whilst the offender and his wife were present. The offender reminded JD to keep the bath time “a secret". JD's father was asleep during this time. The offender told JD that she did not have to wear shorts or bras around him and could simply wear “a big shirt and knickers" if she felt like it.

14. A couple of weeks after this second incident JD had returned to the offender’s property to undertake horse-riding with LK. The night before JD went to horse-riding she had a bath on her own. The offender watched JD get undressed. During this time the offender had a conversation with her about being comfortable around him and being able to do what she wanted to. She was 12 at the time. At the time JD's father was again asleep. JD would thereafter visit the offender's house regularly, every two weeks, staying from a Friday night and leaving Sunday afternoon. During her stays she would have baths and showers and the offender would watch her undress as well as provide her with bath bombs and towels.

Count 2

15. During one of JD's visits to the offender’s home on a Saturday lunchtime JD's father had gone to collect firewood. During this time the offender took JD to the hot tub located in the backyard of the house and told her to “undress". Once in the hot tub, the offender also got undressed, reassuring JD that was okay. Whilst both in the hot tub naked the offender exposed his buttocks and penis. Further, the offender had a conversation with JD about her freedoms and what she would be allowed to do. This included being able to drink alcohol when her father was not around. However, the offender explained to JD that these freedoms would “cost for him". The offender said that he wanted “cuddles" and "snuggles", and specifically “special hugs"" like the ones that LK and ET would give him. The offender told JD that he hoped one day she would give him a special hug. The offender demonstrated the special hugs. The first involved asking JD to perform “[LK] hug". He told JD to sit beside him and wrap her leg around one of his legs and wrap her arms around his neck. JD complied with this request at which time the offender placed his hands on JD's waist and thigh.

Uncharged act

16. A few seconds thereafter the offender tried to have JD perform “[EK] hug". He told her to move directly in front of him, wrap her legs around his waist and her arms around his neck. However, JD was uncomfortable given they were both naked and simply wrapped arms around his neck. Shortly thereafter the offender told JD that they had to get out of the hot tub as her father would be returning soon. They subsequently left the hot tub and got dressed. JD was 12 at the time.

Fourth uncharged tendency act

17. In the school holidays of April 2021, the offender approached JD and LK and told them to get into the hot tub with him. The offender and the two victims all got undressed and entered the hot tub. Thereafter the offender had a conversation with them both about being able to drink alcohol. At the time JD's father was not at the house.

23 October 2021 – context

18. For JD's 13th birthday she was given an iPhone by the offender. He told her that this was a tradition. Around lunchtime on that day the offender told JD, in the context of being gifted the iPhone, that they could facetime and talk face-to-face instead of chats on texts.

Third hot tub incident

19. In December 2021, the offender met another female juvenile BH who was 17 at the time. When BH first arrived at the offender’s home he showed her the hot tub located in the gazebo and indicated that she could use it at any time although they would go in their “birthday suits". Around 11:00pm on one of BH's visits the offender asked if she wanted to go in the hot tub. BH agreed although asked if LK was joining them. The offender and LK both undressed to enter the hot tub and encouraged BH to do the same. All three were in the hot tub together naked following which BH and LK showered together. The three had several hot tub sessions thereafter over the ensuing days. At the time BH was 17 and LK was 18.

Fourth hot tub incident – fifth uncharged tendency act with JD

20. Towards the end of term four 2021 (December 2021), LK, JD, BH and JD's partner “Chris" (a pseudonym) were at the offender’s come home. Whilst Chris was away from the house the offender took JD and BH to the hot tub together with a bottle of baileys alcohol and milk. JD, BH and the offender all undressed and entered the hot tub naked. The offender mixed baileys and milk and had the two girls consume it. Whilst in the hot tub the offender told BH “what she was allowed to do" before he left, in circumstances where JD's father had returned to the home.

Incidents at Lake Lyle - December 2021

21. The offender, together with his wife, LK, and JD's family went on a camping trip. A particular site was booked together with a special request to have access to the disabled bathroom. The offender had a tent comprising of two rooms separated by a kitchen in the middle. It was arranged that JD's father and brother would sleep in one room together and in the second room there would be BH, LK, JD on one bed and the offender with his wife on another bed.

22. Throughout the trip BH and LK would have showers together in the disabled toilet in the presence of the offender or his wife or at times both. The offender would often stand in the bathroom naked and watch the naked victims shower together. At the time JD was 13 years old.

Uncharged act

23. During the evening of 19 December 2021, the offender, his wife and JD went to the bathrooms to shower. JD was standing naked in the bathroom, the offender and his wife showered. Whilst the offender showered, he incited JD to rub his back with soapy hands during which time both were naked.

Count 3

24. Shortly after, whilst JD was showering, the offender rubbed her back, including her lower back, touching her just above her naked buttocks. JD was naked whilst in the bathroom and in the shower.

Massage incident in the offender’s tent – December 2021

Count 4

Sequence 4 on Form 1

25. On 18 December 2021, the offender purchased three 150ml bottles of Four Seasons massage oil. On 21 December 2021, around 12:00am, after JD's father had gone to sleep, the offender started massaging JD, BH and LK. The offender had JD lay next to his wife who was lying awake on her back on the same bed. The offender may JD (then aged 13) remove her shirt and bra to give her a massage. JD laid on her stomach after which the offender poured massage oil on her back and started massaging her back. On the instruction of the offender, BH then helped with the massage of JD. JD then turned around to lay on her back and the offender and BH continued to massage her including touching her breasts. BH also touched the victim’s legs, arms, stomach, and underarms. At the time the offender was naked from the waist down exposing his penis. JD was uncomfortable by the offender touching and exposing his penis.

Sequence 19 - Form 1 for Count 4

26. The offender then incited JD to give BH a massage with him. BH removed her shirt and laid on her stomach. JD and the offender both massaged BH’s back, breasts, legs, arms, stomach, and underarms.

Sequence 23 - Form 1 for Count 4

27. The offender thereafter asked LK whether she wanted a massage. The offender had JD and BH massage LK. LK removed all her clothes and laid naked next to the offender’s wife who was awake at that time.

28. LK initially laid on her back during which JD and BH touched her breasts and "private area". The offender watched this occur and indeed instructed them to massage LK’s vagina. JD and BH thereafter massaged around LK’s vagina, and the offender thereafter stepped in and also touched LK's vagina. LK thereafter turned on her stomach and JD and BH touched her buttocks, thighs, back, neck and shoulders. The offender would intermittently continue to touch LK to spread the massage oil over her body. Throughout the relevant offending, the offender would instruct each participant as to how to touch each other person.

Count 5

29. JD was gifted a mobile phone by the offender on her 13th birthday (October 2021). The matters were reported to police on 29 January 2022. JD's phone was downloaded and analysed. Police found text communications between JD and the offender from October 2021 until 28 January 2022. The text messages including discussions regarding JD being in the “family circle", reminding her about her freedoms, fun and security and that she needed to be discreet when “snuggling the offender". The messages were daily and on a continuous text message thread. As the messages continued, the offender discussed giving ET and LK “massage therapy" to release and increase serotonin in their bodies. The messages included the following: -

1. “You’ve showered with Nan and Pop so no problem I don't do this stuff for getting hugs, I do it because it's how I say I love you".

2. “She’d (BH) slide down off my butt to my upper thigh and back in my inner thigh intentionally touching my balls and butt hole”.

3. “I was disappointed in myself that I didn't do the same for her when I had to rub oil on her pussy".

4. “Look when she finally got down to business she was amazing. I’ve NEVER been massaged like that ever", followed by “well perhaps we can learn together because I really want to share (BH's) pleasure with you".

5. “Not really but yes her pussy looks different to yours and your boobies are different to hers".

6. “Look the next thing we've got to do with (BH) is get her on FaceTime so she can show you her new pussy".

7. “So how do we lock this conversation up so we can keep it private?".

30. At the time JD was somewhere between 12 and 13 years old.

Conduct in relation to BH

31. BH visited the offender's home in early January during which time they bathed together whilst naked. Whilst doing so the offender asked BH if she would like to shave her private parts, being her pubic hair on her vagina. The offender then had BH sit on the edge of the bathtub with one leg over the edge and the other leg in the water. The offender instructed BH to put soap over the vaginal area, explaining to her that it was “natural lubricant so will make it easier". The offender thereafter took out a red and black razor and started shaving her pubic hair. Whilst BH was in this position the offender’s wife had walked in and saw the offender and BH naked together in the bathtub. The offender’s wife told the offender to “get out and go out of there". The offender’s wife saw that BH had soap over her. The offender was hiding the razor at this time. After the offender’s wife left, the offender told BH to bend over so he could finish shaving the rest of her pubic hair.

32. After BH and the offender left the bath, they went to the offender’s bedroom. The offender thereafter had BH lie naked on his bed, telling her that the massage he was about to perform was “very sensual". He further stated that when he did the same for LK “she not only has one orgasm but three". BH complied and laid on the offender’s bed completely naked. Thereafter the offender, using massage oil, started massaging her feet and ultimately her breasts and vagina. The victim felt that the offender was also using his elbow to touch her vagina. BH thereafter turned on her stomach and the offender massaged her again, touching her buttocks. BH was then asked to turn on her back again following which the offender touched her vagina a second time using his elbow. After BH put her pyjamas on the offender lay on the bed and requested BH massage him. BH thereafter touched the offender's penis in accordance with his request. BH used one hand and “flipped it up and sort of brushed his balls and penis with both hands". She described the offender's penis being in a semi-erect state. BH asked the offender if he was getting a “stiffly" to which he replied “am I? I thought I was too old? Go ahead and give it a try and see if you can make me hard". Whilst BH continued to touch the offender's penis, the offender was touching BH's legs, arm and touched her vagina over her pyjama pants. The offender continued to touch BH thereafter which made her uncomfortable. She said no and ran to the kitchen and pretended like nothing had happened. BH was 17 at the time.

31. The offender was arrested on 3 February 2022, and whilst participating in a forensic procedure, declined to participate in an electronically recorded interview.

Count 6

34. The offender’s electronic devices were seized from the offender’s address. Police identified child-abuse material on the offender’s electronic devices including an iPad belonging to the offender. Images of LK and ET were transferred to a USB. The images were categorised in accordance with the Interpol Caseline Category 2. Thirty-one images were of ET and LK naked in the bath which appeared to be within the offender’s home. The images were captured on 8 July 2020 at which time ET was aged 14 and LK was aged 16. Several of the photographs variously depict the breasts, buttocks and genital area of the victim’s whilst seated or standing in the bath.

Victim impact statement

35. A victim impact statement was provided by JD. She referred to experiencing panic attacks weeks after the offending arm was reported. She reported being short tempered and irritable. Being bothered by people who were too close, made loud noises or were involved in the “smallest inconvenience". Her schooling had been affected and she experienced difficulties focusing. She lost her love for writing fiction and now had difficulties engaging this activity. She did not appreciate that at the time of the offending that she was effectively being groomed. JD concluded the statement by saying the following: –

“As of today, it has been 1133 days since I first met TK. That's a little over three years. It feels like three years of my life have been wasted, and I'm glad it's finally over. I don't know how many people are going to understand this, but it doesn't matter at this point. Between Bear and Man, I would pick Bear".

The offender's criminal history

36. The offender's criminal history is limited to several convictions of firearm offences in 2022 which were either dismissed under s 10 of the Crime (Sentencing Procedure) Act 1999 (‘CSPA’) or convicted with no penalty under s 10A.

Subjective material

Report of Dr Joe Q Le

37. The offender was assessed by Dr Le, psychiatrist in August 2022 for mental/cognitive impairment, eligibility for defence of mental impairment or cognitive impairment, fitness to stand trial, and eligibility for “Verdins" considerations in relation to sentencing.

38. Dr Le had available the fact sheet, criminal history and various medical reports relating to the offender. The documents reviewed included a “chronic disease management plan" prepared by the offender's general practitioner in June 2022. That document noted that the offender had a long history of cardiovascular disease and diabetes dating from 2004 and severe ischaemic heart disease from 2005. The offender had a myocardial infarction and aortic valve replacement in 2013, and another myocardial infarction and stent inserted in 2019. There was a further myocardial infarction, coronary bypass, and aortic valve replacement in 2021. He was prescribed 29 different medications for treatment of heart disease, hypertension, high cholesterol, diabetes, electrolyte disturbances, and chronic pain. He was also being prescribed benzodiazepines, diazepam and temazepam.

39. A letter from a geriatrician dated 27 June 2002 (it is assumed that this was a typographical and should read 2022 given it referred to a Pfizer vaccination) noted diagnosis of vascular cognitive impairment with likely depression/anxiety as a contributing factor in addition to long-standing chronic medical conditions. The geriatrician recorded the offender describing “subjective cognitive impairment" over the previous seven months following his vaccination. The offender claimed that his ability to spell had deteriorated and he was not able to focus on day-to-day things and had a poor daily recall. He indicated that he had previously suffered from depression having supported his wife with “various struggles" since being involved in a severe motor vehicle accident at the age of 30. A cognitive assessment indicated a mild cognitive impairment in the spheres of orientation, delayed recall, lost obstruction, and spatial executive function. The previous MRI had revealed areas of old ischaemic changes in the white matter of both cerebral hemispheres.

40. The offender told Dr Le that he had been a pensioner and carer for his intellectually disabled son. He had been in receipt of a disability support pension for chronic pain arising from a motor vehicle collision in 1978, although he previously worked as a security guard. Whilst acknowledging the charges and the fact that the alleged victims were his granddaughter and granddaughter’s friends, he denied the charges. Indeed, he claimed that when the events were alleged to have occurred in April 2021 he had not seen his granddaughter and they were “just never there". Further, the offender claimed to have “absolutely no memory" of the alleged offences.

41. He was generally a poor historian who struggled to provide a meaningful history. He referred to a previous diagnosis of depression. He claimed that in the previous six months prior to the consultation his mood had been extremely poor and that he was considerably distressed in the context of the charges about which he had no memory. He claimed to have ongoing significant disability arising from the motor vehicle accident. The offender claimed to have difficulties sleeping and heard voices.

42. The offender told Dr Le that he had grown up as a child in Sydney and that his father was particularly cruel who would “flog" him, usually with straps once a week. His only memory of his mother was her complaining from being beaten by her father who would blame the offender for the abuse. The offender left school at the age of 15 and later undertook a trade course. The only significant relationship was with his wife having met in their early teenage years.

43. The offender claimed that the motor vehicle accident in 1978 resulted in three years of recovery and that he claimed to have “lost all interest in sex". The offender denied any paedophilic thoughts, urges or behaviours. He denied any other thoughts, urges or behaviours suggesting sexual deviants. He denied any sexual attraction to anybody other than his wife. Indeed, he claimed that the relationship with his wife was nonsexual.

44. The offender claimed that in relation to the offences which occurred in 2017 they were alleged to have occurred whilst he was in hospital “having a heart attack". He denied that his granddaughter LK had ever visited his home before then so the offences “could never have happened". Further, the offender claimed that in relation to the offences that occurred in 2021, when it was alleged he was “touching a girl" at his home, the offender claimed to have been having a “COVID shot" in Lithgow. He claimed that the offences “simply could not have happened".

45. The assessment of the offender’s cognitive status by formal testing was largely unremarkable.

46. On mental status examination the offender presented as unkempt and obese. Whilst generally cooperative, he was a poor historian. He was tearful at times and was labile. Whilst his thoughts were generally logical and goal directed, he was tangential at times. He denied any psychotic symptoms and had poor insight. Dr Le diagnosed the offender as suffering mild vascular neurocognitive disorder and major depressive disorder.

47. In assessing the offender's fitness to plead Dr Le found the following: –

1. The offender understood the offences the subject of the proceedings.

2. In pleading to the offences he claimed that he could not be guilty of something about which he knew nothing and denied committing the offences.

3. There was no evidence he would be unable to exercise his right to the challenge of jurors.

4. He understood generally the nature of the proceedings as an inquiry into whether committed the offences.

5. The offender's capacity to sustain concentration throughout the interview suggested that despite cognitive difficulties, the offender’s short-term memory and concentration were sufficiently intact that he would be able to follow the course of proceedings.

6. The offender had the capacity to understand the effect of witness statements, and the effect of corroborative evidence to support his version of events.

7. He could make a defence or answer to the charges such that he would trust his lawyers to mount a defence on his behalf.

8. There was no evidence to suggest any impairment in the offender's capacity to decide upon a defence or convey such a decision to his legal representatives.

48. Ultimately, Dr Le concluded that the offender suffered from a mild neurocognitive disorder and major depressive disorder in partial remission, evidenced by difficulties with memory and cognitive functioning, described by the offender and supported by medical imaging. Dr Le further noted that the offender's performance on testing was indeed improved compared to testing performed some five months earlier. This was possibly explicable by reason of the effects of antidepressant treatment.

49. Dr Le considered it was “plausible" that the offender’s cognitive symptoms and diffuse “old ischaemic changes" were present and affecting him at the time of the offending in 2017 and 2020. Further, it was “possible" that the presence of a neurocognitive disorder could explain the alleged offending. In this context, a symptom of neurocognitive disorders is a change in behavioural personality in addition to memory impairment. One possible readily identifiable change in behaviour was an increase in libido or hypersexuality. However, Dr Le noted that it was not clear from the description of the geriatrician whether these particular regions of the brain were implicated in the imaging performed on the offender. Dr Le noted that a copy of the imaging and radiology report as well as additional corroborative information was necessary in order to form a view as to whether the cognitive impairment could have resulted in behavioural change that explained the alleged offending.

50. As to the risk of reoffending, this was assessed using the well-known STATIC-99R. This assessment placed the offender in the “average risk" of future sexual violence, although Dr Le considered the offender to be a low to average risk of reoffending. The most relevant factor in this respect was the lack of any previous offending history, either with sexual offending or general offending.

51. The offender did not express any remorse and denied the allegations. Rather, the offender conveyed distress at the belief that he had been wrongfully charged. He provided no insight into the offending.

52. Dr Le considered that the offender was frail who, if convicted and sentenced to imprisonment, was highly vulnerable to being assaulted in custody due to the nature of the alleged offending. Any assault, given his physical frailty, was likely to result in serious injury or death. Dr Le believed that a sentence of full-time imprisonment would weigh more heavily and be more onerous for him given his various underlying conditions. This was particularly given the absence of the availability of specialist treatment within the prison system.

Supplementary report 19 February 2024

53. Dr Le was provided with further contemporaneous medical records. The hospital records of the offender’s admission following the motor vehicle accident made no reference to the offender suffering any head injury at the time.

54. An undated patient healthcare summary documented various conditions from which the offender suffered commencing in 1988 until 2022. Dr Le believed that given the offender had suffered further cardiovascular events, the offender’s dementia had likely worsened since his previous assessment in August 2022. There was no evidence that the offender’s depressive disorder had altered since the previous assessment although it was “reasonable to suggest" that the offender continued to be affected by a depressive disorder given the considerable stressors and the prospect of a custodial term. This would prevent the offender from being able to care for his wife and son.

55. When asked whether Dr Le considered any impairment, illness condition personality disorder explained the offending conduct, Dr Le referred to the opinions contained in his earlier report. He concluded that there was no additional medical evidence which had been provided which further clarified this position. In the circumstances, Dr Le merely reported that it remained “plausible" that the neurocognitive disorder may have contributed to the alleged offending.

56. Dr Le again referred to the vulnerability of the offender if he was to serve a sentence of full-time imprisonment given underlying physical and psychological conditions. This included likely depression from his inability to perform carer roles in relation to his wife and son. Further, there was an ongoing risk of cardiovascular events with a likely deterioration of cognitive functioning. Dr Le reiterated the opinion contained in his earlier report as to the risk of being assaulted and the consequences given his underlying frail condition. Protection would mitigate although not eliminate this risk. Dr Le again referred to the unavailability of the range of medical treatment that would otherwise be available in the community with respect to his underlying our conditions.

Report of Oliver Brecht – Psychologist

57. Mr Brecht was retained to provide an expert opinion on the impact of a custodial sentence on the offender’s health. Regrettably, the assessment was undertaken by telephone with the offender although the psychologist had available an array of medical records and expert reports relating to the offender’s health.

58. It was noted that the offender suffered further psychiatric decline since his arrest and was preoccupied with the impact of a custodial sentence on his health. At the time of the interview the offender was attending on average three medical appointments a week as well as hydrotherapy. When unable to attend these appointments he reported a decline in health.

59. Mr Brecht concluded that the offender would likely find a custodial sentence significantly more onerous than the average individual and was likely to cause him further distress. Additionally, the antisocial environment of custody would cause further difficulties greater than an individual given his physical and psychological difficulties. The offender would find a custodial experience highly distressing, and it was likely that there would be a further decline in the offender’s cognitive abilities. Further, his emotional dysregulation was likely to make him a target of harassment for other inmates. Mr Brecht considered that he was at risk of further deterioration if moved between custodial centres. Accordingly, recommendations were made to minimise any exacerbation.

Sentencing assessment report

60. The offender was assessed for the purposes of the report in June 2024. By way of background, he indicated that he resided with his wife and had care responsibilities for her and his adult son who suffered from various medical health conditions.

61. The offender had not engaged in any paid work since being involved in a motor vehicle accident in 1978. He continued to claim no recollection of the offences and indeed reported a “total amnesia" related to any of the matters associated with the alleged sexual assaults.

62. He had previously engaged in volunteer work for several years although this activity ceased due to the COVID-19 lockdowns and the deterioration of his health. He consistently maintained amnesia related to the offending events which he attributed to cardiac medical issues and associated medications. The offender had no insight into the offending. Indeed, he claimed that having been subject to abuse as a child inflicted by his father had "galvanised" him and had resolved to protect his family from similar trauma. He would be prepared to undertake sexual offender specific treatment if required. He would be unable to complete community service work due to his various physical ailments. The offender was assessed at low risk of reoffending although a mandated sex offender specific risk assessment was yet to be completed.

Crown submissions

63. The submissions referred to general principles applicable to such child sexual assault matters including the impact on the victims and any substantial age differential. Reference was also made to the mandatory requirements in s 25(3) of the CSPA that the Court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing.

64. The Crown referred to the relevant principles relating to Form 1 offences and uncharged acts. The Crown referred to the relevant features of the individual offending in the context of assessing the objective seriousness. This included, variously, the nature of the offending, the age differential, the offender being in a position of trust and that, with respect to the grooming offence, that this occurred over several months.

65. It was acknowledged that the offender had a limited criminal record although noted the provisions of s 21A(5A) of the CSPA that the good character of the offender is not to be taking taken into account if the Court is satisfied that this factor was of assistance to the offender in the commission of the offence. It was contended that this provision did apply.

66. Reference was made to the subjective case of the offender as detailed in the report of Dr Le. It also referred to the relevant principles relating to an offender’s ill-health and age.

67. The Crown acknowledged that given the timing of the plea the offender was entitled to a 5% discount on a sentence that would otherwise be imposed. Of particular significance was general deterrence, protection of the community and denunciation of the offender’s conduct. It was noted that the only appropriate sentence was one of full-time custody and an intensive correction order was not available for a prescribed sexual offence being each of the offences for which the offender is to be sentenced.

Offender’s submissions

68. The submission identified the relevant features of each of the counts for the purposes of determining objective seriousness. The limited prior criminal history was noted. It was contended that the appropriate discount applicable given the plea was entered on the first day of trial was 15%.

69. The submissions referred to the various subjective features identified in the reports which included the offender's health issues. It was noted that there was significant vulnerability in the event the offender was sentenced to a period of full-time imprisonment. These submissions identified several previous sentences by way of guidance.

70. In oral submissions, counsel for the offender conceded that there was limited evidence supporting any claimed lack of memory or inability to recall the offences. He conceded expert evidence did not disclose any medical basis for the offender’s lack of memory. Further, it was open to the court to find that the offender’s claimed lack of memory in the history provided to Dr Le was untrue. It was conceded that it was open to the court to find the offender’s denial of any paedophilic tendencies, sexual deviant thoughts, sexual attraction other than to his wife were inconsistent with the offending. There was no evidence of the offender having ever expressed remorse. Further the offender at no time recognised the harm done to any of the victims by reason of his offending. Further, it was conceded that it was open to the Court to find on the balance of probabilities that the offenders claimed lack of memory of the offending was motivated by a desire to claim a mental or cognitive impairment rendering him unfit to stand trial.

Consideration

71. The offender is to be sentenced with respect to five child sex offences and one offence of possess child abuse material committed over a period of approximately 6 years involving three child victims. There are an additional four offences which the offender requests be taken into account with respect to two of the offences for which the offender is to be sentenced involving an additional juvenile.

71. The offender was aged between 67 and 73 at the time of the offending and the victims were variously aged between 12 and 14, reflecting a very significant age difference. This is an aggravating factor in assessing the objective seriousness of each of the offences: Corby v R [2010] NSWCCA 146 at [77].

72. Count 1 involved the offender touching the victim’s breasts and around her vagina whilst purporting to give her a massage. The victim was somewhere between the age of 12 and 14, being some years before the upper end of the age range for this offence (16 years). The offender was in a position of trust as her grandfather. Self-evidently it did not involve the offender penetrating the victim’s vagina. I am satisfied that this offence falls within the mid-range of objective seriousness.

73. Count 2 involved the 12-year-old victim (four years below the upper end of the age range for the offence) and the offender naked in the offender's hot tub, following an instruction given to the victim to undress. The offending involved the victim wrapping her legs and arms around the offender before the offender touched the victim on her waist and thigh. The offending conduct in relation this victim was not isolated, given the prior uncharged acts. I am satisfied that this offence falls below the mid-range of objective seriousness for offences of this type noting the offending was opportunistic, with the victim's father being absent, and did not involve touching of the victim’s genital or breast area.

74. With respect to Count 3, the offender and the victim (aged 13 – mid age range for this offence), whilst on a camping trip, were both naked in a disability shower which had been arranged by the victim. The offending involved the offender rubbing the victims back and touching her just above the buttocks in circumstances where the offender had incited the victim to rub his back with soapy water. The offending conduct in relation this victim was not isolated, given the prior uncharged acts. I am satisfied that this offence falls below the mid-range of objective seriousness offences of this type.

75. With respect Count 4, whilst on the same camping trip as Count 3, the offender massaged the victim (aged 13 – mid age range for this offence) and two other juveniles whilst the offender’s wife and the victim's brother were present. The offending involved the offender massaging the victim’s back and in so doing, touched the victim’s breasts. At the time the victim was naked from the waist up whilst the offender was naked from the waist down, exposing his penis during the massage. I am satisfied that this offence falls in the mid-range of objective seriousness given the opportunistic nature of the offending, the presence of others, as well as the offenders nakedness and that it involved touching of the victims’ breasts. Further, this was not an isolated offence.

76. Count 5, grooming child under 14 for unlawful sexual activity, involved the offender gifting the victim, then 13 years old (just below the upper age range for this offence), a mobile phone before messaging her for some time. The messaging included the sending of explicit messages to the victim traversing sexual acts with her and others. He described in graphic detail alleged sexual acts with another victim, and compared the appearance of the victim’s vagina and breasts to others. The offender implored the victim to keep the conversation private. It is not without significance that the messaging occurred every day on a continuous text message thread between October 2021 and 28 January 2022, with the matter being reported to police the following day. I am satisfied that this offence falls within the mid-range of objective seriousness.

77. Count 6 relates to 31 images of the victim, then 14, naked in the bath with another victim, then aged 16. The images variously depicted the breasts, buttocks and genital area of the victim whilst either seated or standing in the bath. I am satisfied that this offence falls just below the mid-range of objective seriousness.

78. The victim impact statement of JD demonstrates the profound impact of the offending on the victim.

79. The courts have consistently recognised the harm inflicted on children that are victims of sexual abuse. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 the Court observed at [110]:

“… that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”

81. General deterrence and denunciation have a significant role to play in respect to sexual abuse perpetrated on children. As Hoeben CJ at CL observed in EG v R [2015] NSWCCA 21 at [42] (with whom Harrison J and RA Hulme J agreed):

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

82. Personal deterrence is also a significant factor in determining the appropriate sentence. The offender’s statements to Dr Le that he had absolutely no memory of committing the alleged offences is not supported by any medical opinion. I do not accept this assertion as made to Dr Le. The offender’s alleged lack of memory of the offences, including the offence committed only 10 months prior to the assessment by Dr Le, could only have been motivated by a desire to claim mental or cognitive impairment, rendering him unfit to stand trial. I am satisfied, given the contents of the report, that this is the only rational inference available.

83. The offender’s statements to Dr Le in November 2022 that he could not have committed the various offences for the reasons he claimed self-evidently are patently untrue. His denials of any paedophilic tendencies, sexual deviant thoughts, or sexual attraction other than to his wife are entirely inconsistent with the conduct to which he has pleaded guilty.

84. The offender has never expressed any remorse for his offending. Indeed, Dr Le said the following:

“[the offender] did not express remorse and denied the allegations. He conveyed distress at the belief that he has been wrongfully charged.”

85. The offender has never acknowledged the trauma on the victims as a result of his crime, which is now statutorily recognised by s 25AA(3) of the CSPA.

86. The offender’s guilty plea must be recognised in that it has avoided the need for a trial and the giving of evidence by the various victims, including his granddaughter. However, I am not satisfied that it reflects necessarily a willingness to facilitate the course of justice and is more likely an acceptance of the inevitable in the face of a strong Crown case: Baden v R [2020] NSWCCA 23; Giles-Adams v R; Preca v R [2023] NSWCCA 122.

87. The offender entered his guilty plea shortly prior to the trial and accordingly is entitled to a discount of 5% on a sentence that would otherwise be imposed: s 25D(2)(c) of the CSPA.

88. Whilst the offender has a criminal record, it is limited to firearm offences committed in February 2022 for which the offender was dealt with under sections 10 and 10A of the CSPA. I am not satisfied beyond reasonable doubt that the offender’s lack of any substantial previous convictions was of assistance to the offender in the commission of the offence, and accordingly his general good character otherwise will be considered as a mitigating factor.

89. The offender is the carer for his intellectually disabled adult son and elderly wife. I accept that he has significant health issues including cardiovascular and ischaemic heart disease which has required major heart surgery, hypertension, high cholesterol, chronic pain, a mild cognitive impairment, and depression.

90. I accept that if sentenced to a term of imprisonment the offender will be significantly vulnerable due to his various medical conditions. I accept that the absence of medical care otherwise available in the community could lead to a further deterioration in his conditions. I accept that the offender is also vulnerable if there was to be an adverse event whilst in custody, which will not be eliminated in the event the offender was placed in protection, given the nature of his offences. I accept that imprisonment for the first time at his advanced age will be a greater burden upon him.

91. I further accept the opinions of Oliver Brecht as to the impact of a custodial sentence on the offender’s physical and mental health and further vulnerabilities given his health and psychological functioning.

92. In R v Smith (1987) 44 SASR 587 King CJ at [589] observed: –

“Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a reasonable risk of imprisonment having a greatly adverse effect on the offender’s health."

93. The Court further observed that offenders cannot expect to escape punishment merely because of the condition of their health. However, it is potentially a factor mitigating punishment where imprisonment “will be a greater burden on the offender by reason of his state of health or where there is a serious risk of imprisonment having a greatly adverse effect on the offender’s health".

94. As Mason P observed in R v Burrell (2000) 114 A Crim R 207 at [27] as well as the risks associated with an offender’s medical condition, the realities of prison life should not be overlooked.

95. As to the offenders age, in LIU v R [2023] NSWCCA 30 Campbell J (with whom Adamson JA and McNaughton J agreed) cited with approval the relevant applicable principles summarised by Gulyas v Western Australia [2007] WASCA 263; (2007) 178 A Crim 539 at [54]. By reference to those principles, I am not satisfied that moral culpability is reduced by reason of the offender’s advanced age. There is no evidence that anything related to the offender’s advanced age was relevant in the offending.

96. I am however satisfied that his advanced age is contributing to his various health conditions to which reference has already been made and will be taken into account in determining the appropriate sentence. It must be acknowledged that the sentence of imprisonment which I intend to impose may impact on the offender’s expectation of useful life after release. However, given the seriousness of the offending, including multiple victims over several years, the sentence must still reflect the seriousness of the offending behaviour. Further, as previously observed, deterrence and denunciation remain as important elements in the sentencing process given the nature of the offences and a total absence of any acknowledgement by the offender of the wrongfulness of his behaviour or the harm occasioned to the victims.

97. Given the offender’s lack of remorse or insight into his offending, I find that the offender’s prospects of rehabilitation are poor. I do not accept the offender's submission that his risk of reoffending is low. The offences were committed against multiple victims over several years and the behaviour constituting the offending only ceased upon his arrest. The total absence of remorse or recognition of his offending is inconsistent with a low risk of reoffending when released into the community. Whilst his health complications are likely to restrict his ability to commit similar offences to those for which he is being sentenced, online or messaging offences such as the conduct constituting Counts 5 and 6 will not necessarily be beyond his capacity.

98. I make a finding of special circumstances such that there ought to be an adjustment of the statutory ratio of the non-parole period given it will be the offender’s first time in custody, his poor health, and the limited availability of medical treatment in custody.

99. As previously noted, with respect to Count 1, the offender asked that the Court take into account one additional offence of indecently assault child under 16 which involved the offender touching the victim again during a massage, especially touching the victim on the breasts and genitalia at a time when the victim was somewhere between 14 and 15.

100. With respect to Count 4, the offender asked the Court take into account four additional offences of inciting another to sexually touch a child during the massaging which took place for the primary offence.

101. With respect to the Form 1 offences, as Beech-Jones CJ at CL observed in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 at [23]:

“First, the Form 1 offences can be taken into account on sentencing as demonstrating an “additional need for personal deterrence and retribution” in respect of the substantive offences on the indictment (citations omitted). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter (Attorney General’s Application at [18]).” (Citations omitted)

102. Whilst the inclusion of offences on a Form 1 do not of themselves increase the assessment of objective seriousness of the substantive offence, the facts and circumstances of the Form 1 offences might be relevant to the assessment in that, for example, the circumstances of the Form 1 offences might place the substantive offence in context: DPP v TH per Beech-Jones CJ at CL (as his Honour then was); LN v R [ 2020] NSWCCA 131.

103. In Re Attorney General's Application under s 37 of the Crime (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002), Spigelman J at [42] observed the following: –

"The position, in my opinion, is that, although a Court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of other offences will frequently indicate, or to be given greater weight by reason of the course of conduct which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences."

104. The matters were listed for trial to commence on 6 November 2023. A plea of guilty was indicated at the call over on 3 November 2023 and the offender was arraigned and entered pleas of guilty to the six Counts on the indictment on 6 November 2023 (first day of trial). The offender is entitled to a 5% discount on the sentence that would otherwise be imposed: s 25D(2)(c) of the CSPA.

105. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the court to invoke s 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.

106. With respect to Count 1, taking into account the additional offence on the Form 1, and noting the standard non-parole period of 8 years, the appropriate sentence is 4 years from which 5% is to be deducted for the utilitarian value of the plea of guilty resulting in a sentence of 3 years 9 months with a non-parole period of 2 years 3 months.

107. With respect to Count 2, the appropriate sentence is 2 years 6 months from which 5% is to be deducted for the utilitarian value of the plea of guilty resulting in a sentence of 2 years 4 months.

108. With respect to Count 3, the appropriate sentence is 2 years 6 months from which 5% is to be deducted for the utilitarian value of the plea of guilty resulting in a sentence of 2 years 4 months.

109. With respect Count 4, taking into account the additional three offences on the Form 1, the appropriate sentence is 3 years 6 months from which 5% is to be deducted for the utilitarian value of the plea of guilty resulting in a sentence of 3 years 4 months.

110. With respect Count 5, noting the standard non-parole period of 5 years, the appropriate sentence is 4 years from which 5% is to be deducted for the utilitarian value of the plea of guilty resulting in a sentence of 3 years 9 months with a non-parole period of 2 years 3 months..

111. With respect to Count 6, the appropriate sentence is 2 years 6 months from which 5% is to be deducted for the utilitarian value of the plea of guilty resulting in a sentence of 2 years 4 months.

112. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ).

113. As previously noted, the offending occurred over a period of approximately 6 years and involved three victims. Accordingly, the sentence must reflect some accumulation.

114. In all the circumstances, I impose an aggregate sentence of 6 years imprisonment with non-parole period of 3 years 7 months.

115. The offender was arrested on 3 February 2022 and was granted bail on 4 February 2022. The offender’s bail was revoked at the last sentence hearing on 20 September 2024. The offender has spent a total of six days in custody solely referrable to the offences for which he is to be sentenced. Accordingly, the sentence will be backdated to allow for the time spent in custody.

Orders

1. The offender, having pleaded guilty, is convicted of the offences.

2. The indicative sentences are set out above. I impose a total aggregate sentence of 6 years imprisonment to expire on 16 September 2030.

3. I impose a non-parole period of 3 years 7 months to expire on 16 April 2028.

4. The earliest date the offender is eligible to be released on parole is 16 April 2028.

5. The offender’s medical record, reports of Dr Le and Oliver Brecht, and these remarks on sentence are to be provided to corrective services. I recommend that the offender be immediately placed into protective custody.

Decision last updated: 26 September 2024