R v Vaughan Mark Hildebrand (No. 1)
[2019] NSWDC 957
•27 September 2019
District Court
New South Wales
Medium Neutral Citation: R v Vaughan Mark Hildebrand (No. 1) [2019] NSWDC 957 Hearing dates: 26 – 27 September 2019 Date of orders: 27 September 2019 Decision date: 27 September 2019 Jurisdiction: Criminal Before: Tupman DCJ Decision: 10 offences contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth) – Sentenced to an aggregate term of imprisonment of 5 years with a 3 year non-parole period.
1 offence contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth) – Sentenced to a term of imprisonment of 3 years.
11 offences contrary to s 61I of the Crimes Act 1900 (NSW) – Sentenced to a term of imprisonment of 3 years with a non-parole period of 2 years.
1 offence contrary to the common law offence of ‘wilful misconduct in public office’ – Sentenced to a term of imprisonment of 3 years.
1 offence contrary to s 7(1) of the Weapons Prohibition 1998 (NSW) – Sentenced to a term of imprisonment of 3 years with a non-parole period of 2 years.
2 offences contrary to s 192J of the Crimes Act 1900 (NSW) – Sentenced to a term of imprisonment of 3 years.
Catchwords: CRIME – Combination of NSW, Commonwealth Offences and Common Law Offence - Sexual intercourse without consent – Use carriage service to menace or harass– Using carriage service to solicit child pornography – Possess prohibited weapon – Dealing with identity information with intent to committing indictable offence – Wilful misconduct in public office – 26 substantive offences – 18 additional offences taken into account on sentencing – 15 female victims – Offending over 10 years aged between 18 and 28 – Offender started offending at 18 years old – Offender was a serving police officer during the later offences – Offender acted callously and in a manipulative way, threatened women, often family friends and work colleagues, into sending sexually explicit photos or engaging in sexual acts online for the purpose of forcing them to engage in sexual intercourse with him – Offender acknowledged guilt, some insight into impact on victims and had relatively good prospects of rehabilitation – PTSD from police service but no connection with offending – Combination of aggregate sentences with indicative terms, fixed terms, separate sentences and assessment partial accumulation of all sentences after assessment of overall criminality.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 23, 49(2), 53A;
Crimes Act 1900 (NSW) ss 61I, 192J;
Crimes Act 1914 (Cth) ss 1B, 16BA;
Criminal Code Act 1995 (Cth) ss 474.17(1), 474.19(1);
Weapons Prohibition Act 1998 (NSW) s 7(1).
Cases Cited: R v Obeid (No 12) [2016] NSWSC 1815;
R v Thomson & Houlton (2000) 49 NSWLR 383;
R v Thomson & Houlton (2000) 49 NSWLR 383;
RL v R [2018] NSWCCA 274.
Category: Sentence Parties: The Queen
Vaughan Mark HildebrandRepresentation: Crown Counsel: Mr. John Bowers
Instructing Solicitor: Mr. Daniel Waldmann
Defence Counsel: Mr. Richard Jankowski
Instructing Solicitor: Victoria Havryliv
File Number(s): 2017/164080 Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW): There is to be no publication of the names or identities, or anything which may reasonably be thought to reveal the names or identities, of the complainants in this matter.
NB: Sentences quashed by CCA following appeal by offender (see Hildebrand v R [2021] NSWCCA 9). Remitted to District Court for Resentence by Tupman, DCJ.
Resentenced by Tupman, DCJ on 3 February 2022 (see R v Hildebrand (No. 2) [2022] NSWDC - full medium neutral citation to be added).
JUDGMENT
HER HONOUR: This is the sentence judgment in the matter of Vaughan Hildebrand. The offender has been committed to this Court from the Local Court for sentence, after pleading guilty in the Local Court to numerous Commonwealth and New South Wales offences. There are 26 separate charges for substantive sentence, and 18 additional offences to be taken into account, on 10 individual additional offence documents, either Form 1 documents pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), or s 16BA of the Crimes Act 1914 (Cth). There are 15 separate victims involved in these sentences, and some other offences for which there is no individual victim. So far as the individual victims are concerned, there is a no publication order in relation to each of them, and some others, and each of these specific victims has been given identifying initials for the purpose of this judgment and any reporting of it. The legend explaining to whom each set of initials relates is part of the Crown bundle.
The 26 substantive charges comprise the following:
In relation to the Commonwealth offences, there are 10 charges contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth), of using a carriage service to menace or harass a person. These 10 charges are sequences 3, 11, 12, 23, 24, 30, 31, 32, 33 and 34. They each relate to a separate victim, so therefore there are 10 victims covered by these 10 Commonwealth offences. Offences under this section each carry a maximum penalty of 3 years’ imprisonment. There is one further Commonwealth offence of using a carriage service to solicit child pornography material, brought contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth). This is sequence 18, and brought pursuant to that section, it carries a maximum penalty of 15 years imprisonment.
There is then a series of charges contrary to New South Wales criminal law provisions. There are 11 charges of sexual intercourse without consent, pursuant to s 61I of the Crimes Act 1900 (NSW). They are sequences 57, 67, 55, 60, 37, 39, 41, 42, 62, 65 and 27. These offences cover 4 individual victims and the maximum penalty for each of these offences is 14 years imprisonment, with a standard non-parole period of 7 years.
There is a further charge of wilful misconduct in public office, which is sequence 1. It is a common law offence, and the penalty is therefore at large.
There are two further State offences of dealing with identity information with the intention of committing an indictable offence pursuant to s 192J of the Crimes Act 1900 (NSW), each of which carries a maximum penalty of 10 years imprisonment. These are sequences 20 and 21.
There is one remaining offence of possessing a prohibited weapon without authority, pursuant to s 7(1) of the Weapons Prohibition Act 1998 (NSW). The maximum penalty for this offence is 14 years imprisonment, with a standard non-parole period of 5 years. It is sequence 15.
When sentencing for these substantive offences, I must take into account a number of additional offences, either pursuant to s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), or s 16BA of the Crimes Act 1914 (Cth). There are 10 such forms which cover 18 additional offences. I will identify these 18 additional offences when sentencing for each of the relevant substantive matters.
This is an extremely lengthy and complex sentencing task. The fact that there are substantive offences, 26 in all, and then 10 separate individual additional offence forms comprising 10 additional offences to take into account, is amongst the reason for this complexity. In my view, it is difficult in some cases to see why this course was adopted. In some cases, either the additional offence is equally as serious as the substantive offence and could more properly, at least in my view, have been charged as a substantive offence, or at the other end, is a very minor offence, in one case, in a way that it is almost impossible to ascertain exactly what it is alleged that occurred, and in my view, for that offence, ought to have been withdrawn. That is only one reason for the complexity.
The offending also deals with at least 11 identified victims of a series of different offences. The offences are a combination of New South Wales and Commonwealth offences, where the sentencing regimes are different. The nature of the offending is very different, ranging from sending threatening messages in an unsuccessful attempt to elicit sexualised photos from a victim, right through to anal rape. The maximum penalties range from a maximum of 3 years to 15 years, and one, the common law offence, has no specified maximum penalty. Some offences have no standard non-parole period, and some have a standard non-parole period as high as 7 years. Six of the victims have provided, or in some cases read out, victim impact statements in Court, and for those who have not provided a victim impact statement, there is nothing, apart from the facts to which the offender has agreed, to indicate the impact on them or their current situation.
Perhaps the most difficult aspect of this sentencing task is to distil the relevant facts from the so called statement of agreed facts, which is a document of 48 closely typed pages. It is not a statement of facts at all, but in large part is a summary of evidence that would be relied on to prove each of the offences. It ought to have been simplified, even if it was thought there was some need to provide some examples of the facts in order for the Court to be able to determine the objective criminality of each offence. However, it is not necessary in any so called statement of agreed facts to set out the precise words used in every message or telephone conversation, or specific details such as precise telephone numbers and the like.
Summaries would be sufficient to identify the objective seriousness of any offence. I am sympathetic to the fact, particularly from the Crown's perspective, that there was an enormous volume of material in this matter to distil, but it is unfortunate that both parties, not just the prosecuting authorities, but also those appearing for the offender, did not attempt to simplify the agreed facts so that the task of sentencing here was made shorter and more straightforward. This comment is directed at both ends of the bar table, not just the prosecution. There is nothing, and never has been anything, preventing those appearing for offenders in complicated sentences like this, from preparing their own summary of agreed facts to present to the sentencing Judge as a form, at least, of aide memoire. Provided it is an accurate and faithful summary of the tendered agreed facts, it will always be accepted. That ought to have been attempted in this case by both parties.
The Crown has at least provided some written submissions, and there are some summaries of facts in that. These are pleas of guilty, and on the face of it, there would appear to have been significant negotiations, from what I assume were a larger number of offences originally brought. These charges are not even before the Court in numerical chronological order, which adds to the complexity of the sentencing task, but these are pleas of guilty, and in such circumstances, the entirety of the evidence that would have been necessary to prove guilt is simply not needed, and in this case, and in all other cases in which this is continually done, adds to the complexity and time involved.
Doing the best I can, however, from this complicated situation, I accept that there is a background to this offending. The first offences occurred in 2007, involving the victim BB, when the offender himself was 18. There are 10 charges of which BB is the victim, either substantive matters for sentence or additional offences, and they cover a time span of 10 years. Even though it means that an analysis of the offences involving BB will require matters to be taken out of chronological order, I propose to deal with those first.
Sequence 57 is one of the 11 charges of sexual intercourse without consent, and occurred sometime between 1 January and 28 February 2017 at Arncliffe. As I have said, it carries a maximum penalty of 14 years, with the standard non-parole period of 7 years. When sentencing for this offence, I am to take into account two additional offences of sexual intercourse without consent, sequences 58 and 59, the first occurring during the same time period in Bardwell Valley, and the second in August 2007 at Bardwell Park.
This is one of those examples where two offences of equal seriousness are not before the Court substantively, but are to be taken into account in a meaningful way when sentencing for sequence 57, but not attracting a separate sentence with and considerations of concurrency and the like.
The victim of these offences, BB, was born in July 1989. She lived with her parents in Sydney, and in 2006 was in year 11 at high school and was aged 17. She completed high school in 2007. She met the offender in August or September 2006 through mutual friends, and commenced some contact through social media, including MSN Messenger. They began what is described in the facts as an on again off again relationship. Between 2007 and 2017, the offender demanded that BB forward to him nude images of herself, and threatened that he would forward these images to her friends and family if she did not engage in sexual acts with him.
In particular, in early January 2007, she was with him in his car, driving around the Arncliffe area. They went to a golf course. He stopped and pulled down his pants and exposed his erect penis. They were outside the car at this stage in the golf course. She turned away, and as she did so, he pushed her using both his hands and she fell onto a rock and grazed her knee. At that stage she was looking away from the offender, but she turned around and saw him standing close by with his erect penis millimetres from her face. She attempted to push him away, but could not move him. She told him to stop, but he did not move. He began masturbating with one hand, and put his other hand behind her head, and pulled her head towards him and forced his penis into her mouth. This caused her to choke and gag and she started crying.
She tried to push him away, but could not break free because he was holding her head with both his hands. He ejaculated into her mouth and then did up his pants. They then returned to the car and he drove her back to his home, and then she went to her home. As a result of this offence, she had grazes to her knees, and her mouth and throat were aching. She did not consent to this sexual intercourse. This offence occurred in the evening and there was no one else in the vicinity.
They are the facts for sequence 57, a substantive matter for sentence. During the same period, there was another similar incident which occurred in the yard of the house where the offender lived in Bardwell Valley. The offender took her, BB, by the hand, and led her to the side of the house. He took her under the house, where there was a cupboard, or a door, and led her inside where it was dark. Again, he pulled down his pants and began to masturbate until his penis was erect. BB said she did not want to do that and started to cry. He took hold of her shoulders and forced her to her knees. He then placed his hand on the back of her head, pulling her towards his crotch, and thrust his penis into her mouth. She choked and gagged, and he held her head with both hands and continued thrusting, whilst at the same time pulling her head back and forth. He ejaculated into her mouth. He then pulled his pants up and went back into the house, leaving her under the house. Again, she did not consent to this sexual intercourse. That is the first of the two additional offences to be taken into account on Form 1(F) when sentencing for sequence 57.
In July 2007, BB received some compensation following a knee injury, and spoke to the offender about it. As a joke, she told him that she would buy him a motorcycle, but later made it clear to him that it was a joke, and she had no intention of doing so. He became angry about this, and accused her of dishonesty. She was 17 or 18 at the time and just finishing school, and he was about a year older. He then claimed that she was indebted to him, because of what he described as her deception. He told her that she had to give him oral sex, which he then and thereafter described as head jobs, to make up for it. He said to her, "You owe me times two", and from that time BB started to receive messages from the offender with the characters "x2", meaning times two. The offender was 18 at the time. This would seem to be the beginning of a long period of his use of carriage services to threaten and blackmail young women into either sending him sexually explicit photos, or performing sexual acts with and on him.
One of these events is in fact sequence 59, the second additional offence to take into account when sentencing for the first substantive matter. In August 2007, BB received a text from the offender, telling her to come to his house in Bardwell Valley. It was night, and she went there and saw him in the living room with the TV on, which was the only light in the room. There is no evidence explaining where his parents were that night, or any other night when offences occurred at his home. She sat on the far end of the lounge away from him, and he ignored her until about an hour later when he said, "Well, what are you going to do? Why did you come all this way for?".
He undid his pants and began to masturbate until his penis was erect. At this stage, BB was closer to him. He placed his hand on the back of her head and forced her head down towards his crotch. She resisted, but he continued to force her head down, and ultimately managed to force his penis inside her mouth. He then took hold of her head with both hands and pulled her head up and down on his penis. She remained motionless, and after a few minutes he ejaculated into her mouth. He did up his pants and returned to watching TV. She left a short time later and this sexual intercourse was without her consent. That is the second offence to be taken into account as an additional offence. She was 17, he was 18. She did not consent, and he could tell by her actions that she was not consenting.
She suffered grazed knees as a result of the substantive offence, when he forced her to the ground. In all cases, he ejaculated into her mouth. This is very serious criminal offending. He was only 18, but he was already acting callously and in a manipulative way. He was supposed to be her friend. He had nude pictures of her, and threatened to use them to show her family if she did not have oral sex with him. For the substantive offence, they were alone at night in an isolated position in a golf course.
This of itself is a serious offence of sexual assault, but more so because of the two additional offences to take into account, which are of a similar, if not identical, nature. They must be taken into account in a meaningful way. Each of these offences carries a maximum penalty of 14 years imprisonment, with a standard non-parole period of 7 years, and I must sentence in accordance with the current relevant sentencing regime. Despite some of these features, which amount to some aggravation, I am of the view that the substantive offence nonetheless is slightly below the midrange for offences capable of being charged under this section. Further, this is a plea of guilty, and therefore the standard non-parole period of 7 years does not apply strictly, but must be taken into account as some form of yardstick.
I note in the Crown written submissions at paragraph 58D, the Crown argues that the objective seriousness of the two Form 1 offences here, that is, those to be found in Form 1(F), is aggravated because BB knew that the offender was a police officer, and used his position to intimidate her into consenting. That is not, in fact, the case here. These offences occurred in 2007, and he did not become a police officer until 2011. Clearly, there is some misunderstanding in that written submission. The Form 1 offences here, and generally throughout these sentences, must be dealt with in a meaningful way, always taking into account the seriousness of the individual Form 1 offences themselves, and the extent to which they indicate a greater level of criminality.
In particular, I accept from the decision of RL v R [2018] NSWCCA 274 that it is open to impose a longer sentence than might otherwise be appropriate for the substantive sentence, when taking these additional offences into account. That, of course, always depends on the nature of the additional offences and the extent to which, of themselves, they are offences of significant criminality. That is clearly the case here, namely that they are offences of significant criminality. They are, in fact, two equally serious and separate instances of sexual intercourse without consent to take into account, and the sentence to be imposed for sequence 57 must be longer for that reason.
The s 5 threshold referred to in the Crimes (Sentencing Procedure) Act 1999 (NSW) has been well and truly reached for this offence, and only fulltime custody would suffice to deal with the objective criminality. I am not, at this stage, either by that reference or otherwise, ignoring the subjective case which has been tendered on behalf of the offender, and to which I will refer in due course, but I intend, when dealing with each individual matter, to give an indication of what the appropriate sentence will be. In so doing, I have taken into account the evidence called in the subjective case, but will refer to it specifically later in the sentence judgment.
One thing I will specifically refer to at this early stage, however, is the fact that the offender comes to Court as a person with no prior criminal convictions. For many offenders, that is a matter that would be taken into account as a circumstance of mitigation and an indication of some good character. In this case, that is not a factor from which I would infer either that at the time of this early offending against BB, and certainly not thereafter, that he was a person of good character. He was in fact not caught until 2017, which explains why he comes to Court with no criminal record, but he was certainly not a person of good character either then nor now.
I do not ignore, either, and take into account the fact that these are pleas of guilty, entered at the earliest opportunity in the Local Court. When sentencing for all of the State offences, I will impose a sentence that takes into account a discount for the utilitarian value of those pleas. In accordance with the dicta of the Court of Criminal Appeal and R v Thomson and Houlton (2000) 49 NSWLR 383, I will apply a 25% discount at the top of the range to reflect the utilitarian value of the pleas. That will be applied in that numerical form, albeit perhaps not always strictly, when dealing with the State offences.
When dealing with the Commonwealth offences, I will also take into account the fact that the pleas of guilty indicate some willingness to facilitate the interests of justice, although in this case it may be of lesser significance. I will also take into account the utilitarian value of the pleas of guilty when setting the Commonwealth sentences and apply, to the extent that it is necessary, the same discount of approximately 25%.
Taking those matters into account it seems to me, then, that for sequence 57, an overall term of imprisonment of 5 years is called for, with a 3 year non-parole period, including taking into account the relevant Form 1 offences.
The offender and BB continued contact between October 2007 and early 2008. He continued to demand photos and oral sex, and made the same threats. She complied because of these threats. On a few occasions, he told her he wanted to make a pornographic film, but she refused. In early 2008, he asked her to send a nude image, and she refused. He then threatened to show naked pictures of her to her friends, and also threatened, in effect, to tell or show her brother. She then complied because of this threat and sent the requested images.
In July 2008 BB started to use Facebook Messenger to communicate with friends. The offender was one of those, and continued to demand nude photos and oral sex from her. She saw him on a semi constant basis during this period. He would often send her messages saying, "x2", that is times two, and she would refuse. She understood that to be a request or demand for oral sex. He then started to send messages which said “anal”. She refused. He then started to send messages suggesting that she should go on Skype, and on one occasion when she was on Skype, he demanded nude images of her. She complied because of the ongoing threat that he would disseminate the other images that he had to others, including her family.
During the first half of 2010, BB's brother was arrested by police, and she asked the offender for help because she knew that he had studied criminology at university. She thought he might be able to explain the process to her. She went to his house at Bardwell Valley one evening in the first half of 2010, and they were sitting outside near a fire pit. She explained the situation with her brother, and the offender said that he could help her, and that he had a lawyer friend to whom he would speak. He led her into his bedroom and put her on his bed and undid his pants.
He behaved the same way that he had done previously, by exposing his penis and masturbating to erection. He told BB that she needed him, and said that without his help her brother may go to gaol. She sat on the edge of the bed with her back to him. He grabbed her elbow and pulled her around, but she resisted and refused to turn around. This happened several times, and each time she refused to turn around and face him. He again pulled her around, but this time he grabbed the back of her head and forced his penis into her mouth, holding her head until he ejaculated into her mouth. She did not consent to this, and left soon afterwards.
They are the facts for sequence 60, the second substantive offence involving BB. More probably than not, the lawyer of whom he spoke did not exist. As will become clear when discussing the balance of the offences, the offender constantly told lies to women about his contacts, even to the extent of posing as these contacts online, in order to either get sexual favours from these women, or sexually explicit photos from them. He used both blackmail and emotional blackmail on BB, when she sought help from him because of her concern for her brother.
In early 2012, the offender introduced BB to another person, and she went out with him a few times until she became involved in an intimate relationship with him from February 2012. The offender came to learn of that relationship, and thereafter started to send BB text messages asking her for nude images. She refused, and in response he threatened to forward the images he already had to her boyfriend. In the end, she complied with his request for nude images because of those threats. By this stage, the offender was a serving New South Wales police officer and had joined the police service in 2011.
In March 2012, BB's brother was arrested by police and she again approached the offender for advice. As I have said, by that stage he was a serving New South Wales police officer, a fact of which BB was aware. During a conversation with him, he said, "I know a lawyer, I can get some advice from him and it won't cost you anything, if you know what I mean".
On 19 April 2012, BB went to Rosehill Racecourse with a group of people, including her boyfriend and brother. According to the agreed facts, during the day she received hundreds of text messages from the offender. In July 2012, BB's mother passed away, and she turned to the offender again for guidance and support, including in relation to her brother's pending Court matter. This in part occurred because she knew he was a serving police officer and thought he might be able to assist. In return, he continued to demand nude images from her.
During the beginning of August 2012, the offender offered BB money in a text. He said that he could give her money, and all she needed to do was to go on Skype, and that it would only take half an hour. She refused, and so he then said to send him some photos. Again, she refused. He then said, "Well all you'll have to do is times two, and I'll give you 40K. You don't have to worry about it, I'll sort it out". I accept that this was him offering to pay for oral sex, and also a reference to her brother's impending criminal proceedings.
In August 2012, BB went to the offender's house in Bardwell Valley, and they were again in the rear yard. She was feeling depressed about her mother's death and her brother's legal issues. The offender asked her questions about her brother, and kept coming back to the situation involving her brother, and asked if she had spoken to the police. She did not reply, and he then offered to make some calls for her. She ignored him, and he said to her, "Do you really want a dead mother, and a brother in gaol? I've got a friend at the DPP that can help out".
This of course was a lie, but because of previous conversations with the offender, BB thought that he had the ability to jeopardize her brother's Court proceedings if she did not comply with his request. He put his arm around her, unbuttoned his pants and unzipped his fly, pulling out his erect penis. He put his hand on her. He put her hand on his penis, but she pulled it away. He took hold of her hand and held it down on his penis. He said, "Do you want to lose your brother too? It's up to you, you can fix this. You just need to do this, and I'll sort it out".
He moved his hand to the back of her head and pushed her head towards his crotch. She resisted, and he said, "I can fuck this up, all it would take is a call from me and he'll be put away". BB, as I have said, knew that he was a police officer and thought he had this power, so she performed oral sex on him for a few minutes before he ejaculated into her mouth. She did not consent to this sexual intercourse, and only did so because of the threats that were being made. These facts are the relevant facts for sequence 61, which is the offence in Form 1(G), the additional offence to be taken into account when sentencing for sequence 60, which occurred two years earlier.
Sequence 60, it seems to me, is a little below the midrange in terms of objective seriousness, and also it is, as I have said, a plea of guilty, but the sentence must be longer than it might otherwise be, to take into account in a meaningful way the criminality involved in the additional offence, sequence 61, the Form 1 offence. Again, and it seems to me in a somewhat bizarre way, the facts for sequence 61 are more serious than the relevant circumstances comprising the substantive offence sequence 60. That in part is because of the relevant aggravating circumstances, namely that by that stage the offender was a serving police officer, and further, he was taking advantage not only of the concern BB had for her brother, but also manipulating and taking advantage of the situation that she found herself in, namely grieving for the relatively recent death of her mother. For those reasons, sequence 61, albeit an additional offence, seems to me to be more serious than sequence 60, and must be taken into account in a meaningful way. Again, it seems to me that the relevant sentence for that sequence, with that Form 1 taken into account, is an overall term of imprisonment of 5 years with a 3 year non-parole period.
The next group of offences involving BB started between June and July 2014. During this time, BB received a text from the offender, similarly saying, "x2", or times two, with further threats that he would forward the collection of nude photographs he had of her to her boyfriend. As a result of feeling threatened in that way, she went to his house at Campbelltown on an evening in that time period. By that stage he had moved to live in his own house in Campbelltown. There were two large dogs in the house, of which she was afraid, because they were large and acted aggressively.
When she arrived at the house that night, she saw him sitting on the lounge with a glass of wine and he was playing with a knife, and appeared to be acting erratically and on edge. He told her that he had guns in the house, which may or may not have been true, given what was subsequently found when he was ultimately arrested. He also told her that he was working undercover infiltrating a motorcycle gang, which is almost certainly not true, because if that had been true he would not have told her.
They sat on the lounge for a few hours and then she left. As she drove away, she received texts from him simply saying, "x2", or times two. She understood that was a demand or request for oral sex, and she felt under a degree of compulsion because of what he just told her, and also because of the erratic behaviour she had seen. So, she returned to the house. When she arrived, she found him in the lounge room, masturbating. She walked over and sat on the lounge. He leaned over and grabbed her by the wrist and dragged her across to him. He placed his hand on the back of her head and forced her down towards his crotch. She resisted, but he continued and forced his penis into her mouth. She performed oral sex on him for a few minutes before he ejaculated into her mouth. Again, she did not consent to this oral sex, and was only back in the house because of the threats that he had made, which she believed he was capable of carrying out. After he had finished, he continued to watch television, and she left.
Those are the relevant facts for sequence 62, an offence for substantive sentence. When sentencing him for this, I am to take into account two additional offences of sexual intercourse without consent, one occurring in
December 2014, which is sequence 63, and the other occurring in April 2015, which is sequence 64. These two additional offences are to be found in Form 1(H). The relevant facts for these two additional offences are that on an evening in December 2014, the offender sent BB many text messages. She originally ignored them, but then received a message, which again said "x2", or times two. She understood, again, this was a demand for oral sex. He also threatened to disseminate the nude photos of her which he had, if she did not comply.
She went to his house in Campbelltown between 9:00 pm and 10:00 pm, and saw him seated on the lounge, and he appeared to be drunk. She saw a number of knives on the coffee table in front of him, and the large dogs were also present. He picked up one of the knives and started playing with it. He opened and closed it a number of times. The blade was about 20 cm long. He started to tell her and describe to her how he hunted and killed pigs, and waved and gestured with the knife in the air. She felt intimidated by these actions, and whilst he was demonstrating this to her, he reminded her that he had guns and knives in the room. He started to watch television and did not speak for a few hours.
After midnight, BB decided to leave, but the offender said, "Are you going to do this or what? You know what the consequences would be". She sat down next to him, and he undid his pants and took out his erect penis and placed his hand on the back of her head and pushed it down towards his crotch. She tried to resist, but he insisted, and forced her to give him oral sex for a few minutes before he ejaculated into her mouth. She did not consent to this sexual intercourse, and she left shortly afterwards.
The second additional offence occurred during April 2015. BB agreed to have dinner with the offender at his house in Campbelltown. During dinner, he left the table and did not return. She did not know why he left, so she started to drive home, and then received some text messages from him, in which he referred to her boyfriend, implied a threat to tell him that she was there with him, and threatened to send him the nude photos that he had of her. He instructed her to come back to the house, and again texted or said “x2”, which she understood to be a demand for oral sex. In those circumstances, she returned.
The dogs were there and were barking, and they followed her into the house. She went back to the lounge room and sat on the lounge. The dogs were harassing her. The offender intervened and pushed them away. He then stopped in front of her and undid his pants. He pulled out his erect penis, and pulled her head towards him and forced his penis into her mouth. He held the back of her head and manipulated her head so that she engaged in oral sex with him. She choked and gagged when he did so, and was having difficulty breathing and tried to pull away, but he would not allow her to do so, and continued to thrust into her mouth. She tried to push him away, but could not do so because he was too strong. She experienced pain, but was not able to yell out. After a few minutes, he ejaculated into her mouth. Again, she did not consent to this sexual intercourse, and left shortly afterwards.
That is sequence 64, the second of the two additional offences to be taken into account when sentencing for sequence 62. All of these offences occurred at his house at Campbelltown and are equally serious. They are all aggravated by the fact that he was a serving police officer at the time, which she knew, and he would have been aware that it enhanced the level of threat that he presented to her. The level of threat was also increased by the fact that he was handling knives, making comments about his ability to hunt and kill pigs, telling her that he had guns in the house and similar matters.
All of the same comments and findings made about the objective criminality of the offending overall are relevant for these offences too, including the use of threats to obtain sexual favours, the fact that he was imposing on what was meant to be a friendship and the like. But the events were becoming more serious. He was behaving erratically and there were weapons present. There is no evidence that he actually used these weapons in a menacing way towards her, but they certainly presented in a threatening manner and were perceived in that way by her when she was there.
Taking all of those findings into account, these are obviously objectively serious and the two additional offences must be taken into account in a meaningful way. Even with a discount for the pleas of guilty, it seems to me that the overall term for sequence 62 should be 6 years with the 4 year non-parole period.
The last group of offences involving BB comprises sequence 65, a charge of sexual intercourse without consent, which occurred on 2 September 2015, with one additional offence to be taken into account, also of sexual intercourse without consent, occurring much later on 26 February 2017. That is sequence 66 and is to be found on Form 1(J). The relevant facts for sequence 65 are that on 2 September 2015, BB agreed to have dinner with the offender in Campbelltown. After dinner, she dropped him to his house in Campbelltown, and then started driving home. He then started to send her text messages directing her to return, and again wrote "x2". She refused, and they argued by way of text messages. She pulled to the side of the road and called him. During the conversation she had with him, he said to her, "Come back, you know what you have to do". She refused. He said, "Remember what I have got, the collection of you. What would your boss think of it". His threats now had escalated beyond her family, friends and boyfriend, and were now involving a threat to inform her boss, and in some way threaten her career.
In those circumstances she drove back, and when she got to his house he was on the lounge. She sat on the far end of the lounge and remained frozen. After about 20 minutes, he said, "What's it going to be. It's up to you how this all plays out, it's up to you". She refused, and they then had an argument. He said, "Come on, times two". She understood that this was a demand for oral sex. He undid his pants and took out his erect penis. He put her hand on his penis but she pulled away. He did that again. She looked away from him and in the direction of the television, but he put his hand on the back of her head and pushed it towards his crotch. He forced his penis into her mouth and forced her to engage in oral sex with him for about ten minutes, after which he ejaculated. She did not consent to this, and left shortly afterwards.
I also have to take into account, as an additional offence, Sequence 66, which occurred two years later. The background to this is that in October 2015, BB moved overseas with her boyfriend. The offender continued to demand nude images from her, and threatened to forward the photos to her brother and her work if she did not do so. Because of these threats, she forwarded him several images during this period. On 26 February 2017, she came back to Sydney to enable her to renew her work visa for the UK.
On 27 February 2017, she agreed to visit the offender at his home in Campbelltown. She stayed the evening and slept on the lounge. The following morning there was an argument between them. He asked why she had visited if she was going to ignore him, and again used the term “times two”, which she understood was a demand for oral sex. He went further, and said, "You don't want to fuck up your visa". They continued to argue, and he said, "You don't want to have to give up London. If you don't times two, I can fuck this up for you". He was at the time still a serving police officer and she believed, albeit erroneously, that he had some power to compromise her ability to renew her work visa to the UK. He undid his pants and took out his erect penis. He put his hand on the back of her head and pulled her down towards his crotch. She resisted and pushed backwards. He continued to push and applied more pressure to the back of her head, overpowering her and forcing his penis into her mouth. She performed oral sex on him for a few minutes until he ejaculated into her mouth. She left a short time later, and returned to the UK a week later. They are the facts for the sequence 66 additional offence.
On 13 March 2018, BB made a formal statement to New South Wales police, outlining the full ranges of offences referred to already in this sentence. As for the previous three substantive offences involving BB, when sentencing him for sequence 65, I have to take into account the additional offence of sequence 66 in a meaningful way. All the same findings apply as earlier, in terms of the objective criminality including the threats, the fact that he was a serving police officer which she knew. It seems to me that the relevant sentence for that offence in those circumstances is also 5 years with a 3 year non-parole period.
When indicating the sentences appropriate for these offences involving the victim BB, I indicate that I have taken into account the victim impact statement that was read onto the record by BB's mother, and which is tendered in these proceedings. I accept that she has suffered serious adverse consequences as a result of what can only be described as the offender's persistent abuse of her over 10 years. The Court is aware of the ongoing consequences of sexual abuse, and even in the absence of any victim impact statements, the Court would make a finding in every case that the victim of sexual abuse is likely to suffer serious psychological sequelae, require treatment and have lifelong adverse consequences as a result. That is even more so given those facts which the offender has admitted by the agreed facts, which I have just recently summarised. I accept that she has become insular and has had difficulties with anxiety and depression, and whilst there is no strict evidence of a medical nature in relation to the ongoing impact on her, because of the wealth of information available to the Court about the well-known consequences of sexual abuse, I accept that this is likely to be ongoing and may well be ongoing for her whole life.
This amounts to a serious adverse impact on her, but not of the type, in my view, which would amount to an additional aggravating factor. The Crown does not argue for a finding that this impact on the victim is more than would be expected from the type of offending, but it must be seen as serious, it is ongoing and persistent, in circumstances where, presumably, she felt she had little control over her life during these 10 years. I have taken all of this into account when sentencing for the offences involving BB.
For the offences involving BB, in summary, there are 10 separate instances of sexual intercourse without consent, over a period of 10 years, in which the offender forced BB to engage in oral intercourse with him. He ejaculated into her mouth on all occasions. He used some force in doing so, and on the first of these occasions she suffered some relatively minor, but nonetheless, injuries to her knees. He was meant to be her friend and he took advantage of that. He threatened her with the use of photographs, to disseminate them to her friends, family, boyfriend and boss.
The offences occurring after 2011 are further aggravated by the fact that he was then a serving police officer, of whom a higher standard of behaviour is expected. What is more, he used that position in relation to some of the offences, by pretending that that position would mean he could either bring about advantageous outcomes for her brother, or disadvantageous situations for her brother, if she did not comply with his request for sexual favours or the forwarding of sexually explicit photographs.
For some of the later offences there were present, whilst he was making these demands, weapons, mainly in the form of knives, which he brandished about whilst making these requests for sex. His behaviour became bizarre and more menacing. He frequently texted her hundreds of times on a day, and in all of those circumstances, these are very serious criminal offences which even if they were being sentenced alone would give rise to lengthy periods of imprisonment.
Clearly enough, the s 5 threshold for imprisonment is met, and only fulltime custody would suffice. There should be a message of general deterrence sent in the sentences for these offences, and especially these offences, because of the nature of them. There is also a need for specific deterrence here, for reasons I will explore later in this sentence judgment. In due course, I will be imposing an aggregate sentence for all of these matters, taking into account the indicative sentences which I have set out at this stage. I will not announce what that aggregate sentence will be for this group of offences, but will now continue to go through the remaining matters for sentence.
I now return to the other offences before the Court. The matters to which I have already referred would be enough by themselves for this offender to be sent to gaol for a considerable period of time, but there are, as I have said, a large number of other offences that need to be dealt with. The next offence involves the victim AB and is sequence 34. The offender had been a close friend of AB's brother and her family since 2002, and was a frequent visitor to her home. He started corresponding with AB via social media in 2003, and in 2005 he told her that a neighbourhood friend had boasted to him that he had installed cameras in the bathroom at AB's home, and had boasted that he had seen her naked. By 2005, the offender was a close and trusted friend of AB.
In 2006, AB had become involved in organizing under 18 dance functions, and the offender knew of her interest. AB turned 17 in May 2007. In September 2007, she was befriended by someone on MSN messenger with a username that contained the initials DJ. She thought that the request had come about because it was someone who shared her interest in under-18 dance functions. In fact, the person who was communicating with her was the offender using an assumed identity. He did not identify himself to her, but provided some information to her about her personal circumstances.
In February 2008, the offender had an MSN conversation with AB using this assumed identity. He told her that she had been naughty, and that he had photos and videos of her getting dressed, and naked. She asked what he wanted, and he asked her to send him a photo. He threatened that unless she sent him a photo, he would send these other photos of her, naked or getting dressed, to her friends, family and work. She continued to communicate with him over MSN and demanded that he send her the photos to prove that in fact he had access to nude photos of her. He did not do so, but he then stated that he would then provide some private information about her, which the offender actually knew, such as the sort of pyjamas that she wore, which he only knew because he was a friend of her brother, and a frequent and trusted visitor to their house.
Using this assumed identity, he continued to demand photos of her naked, including pictures of her breasts. She told him she did not have a camera or a webcam, and he threatened that she had one day to provide the photos to him, or he would distribute those other photos that he claimed to have. He claimed that people were watching her through her bedroom window and she began to fear that whoever this person was could in fact see into her bedroom.
At this stage, as I have said, she was only 17. In March 2008 she blocked this identity from her account, but within half an hour she was befriended by a new MSN user with a different account name. It was the offender using a different identity. He immediately demanded a picture of her naked breasts and in other exchanges made it clear that it was the same person who had been corresponding with her earlier and that he was now angry because she had blocked his original account name. She created a new MSN account, and imported all of her contacts, apart from this one, not realising that in fact this was the offender. She shared this information with him, and that same night the offender used yet another MSN name and sent a message saying, "Hi, I'm back. Do you think you could hide from me". She sent a photo of herself in a bikini in an attempt to placate the person, who then said, "That's not enough, if you don't send a proper photo or meet up with me, then I will send the photos and fuck your life".
He became increasingly aggressive towards her, called her a bitch, and threatened to send images to her school friends. As I have said, at this stage AB was 17, and the offender was 19. He became increasingly rude to her. He demanded money from her and suggested she obtained money from a person he named as Anthony. At the time, AB was in a relationship with a person called Anthony, whose family was known to be well off. She became increasingly worried that this MSN identity, who of course she did not know was the offender, was aware of this detail. She searched her home for hidden cameras and began to stay at her boyfriend's home, because she thought a neighbour was watching her. She began to receive prank calls to her mobile number, and when she answered, she could hear a person breathing on the other end of the line. She would receive text messages from the same number, saying, "You can't run from me", and demanding that she connect with him on MSN messenger or she would suffer consequences.
She told her boyfriend, who then used her MSN account to communicate with the person, not knowing it was the offender. The offender said to him about AB, "She's a slut". In the end, on 29 April 2008, AB and her boyfriend reported the matter to Kogarah police. There is no evidence, as I understand it, about what happened as a result of that report. She in fact made a statement to police about this, during the course of what must have been a later investigation on 1 December 2017.
These facts involving the victim AB are sequence 34. It is one of the 10 separate Commonwealth offences of using a carriage service to threaten, menace or harass a person. The offender did so in order to obtain sexually explicit photos of her. She was the sister of his friend, and he was a trusted friend of the family, allowed regular access to her and their home. He abused that friendship and that trust that both the family and the victim had in him.
There is a victim impact statement before the Court from AB, who read it out in Court. I accept that she has been badly affected by his conduct towards her. He acted as her friend, almost like a brother. He allowed her to confide in him about the person who was menacing her on Messenger, and at the same time, because he was that very person, was victimising her in doing so. Not surprisingly, she has trust issues in relation to people generally, and this is ongoing, being reactivated, no doubt, at the time the offender was actually charged and she gave a statement to police almost 10 years later. I have read and listened to her statement and taken it into account.
It is a serious instance of using a carriage service to menace. It continued over a period of time. When sentencing for this and all of the other Commonwealth offences, I am required to take into account the provisions of Part 1B of the Crimes Act 1914 (Cth), and in particular, the provisions of s 16A. There are a number of factors there which I have, and will, take into account. One of those is to set out the nature and circumstances of the offence, in other words, the objective seriousness of the offending. It is, in my view, a relatively serious instance of this particular offence. I note that all of these offences brought contrary to s 474.17(1) are capable of being dealt with in the Local Court, where the jurisdictional limit would be 2 years.
Whether or not this particular offence would cross the threshold for imprisonment, if it were being sentenced alone, is a moot point. In its own terms, however, it is serious, it is cruel, it amounts to serious stalking and it seeks to obtain sexual content by the menacing. It creates a fear for the victim of feeling unsafe in her own home. In my view, in the overall circumstances of this case, taking into account the subjective case involving the offender, and also the early plea of guilty in the way that I have already outlined, it does require a period of custody. However, the maximum penalty for this offence is only 3 years. It is nowhere near the top of the range. It was not for a very lengthy period of time, it did not involve gross language and it involved messaging, not voice calls. These are all factors that I take into account in assessing the objective criminality. I have decided that without a discount for a plea of guilty, this ought to give rise to a 12 month term of imprisonment, therefore, a 9 month term with the discount for a plea of guilty.
The next group of offences involves the victim CD, and also surrounds the victim EF. In 2008, EF commenced a relationship with the offender. They were both students at the University of New South Wales. CD was one of EFs close friends from high school, and was also studying at the university. All three would often socialise together. The offence involving CD is sequence 24, and that involving EF is sequence 30.
At one stage, the offender told EF, his girlfriend at the time, that he had seen some sexually explicit photos of her friend CD and her boyfriend, on the boyfriend's phone. This was not true. Sometime in 2010, in general conversation with him, CD told the offender that she wanted to travel to Germany to study in October 2010. On 17 July 2010, CD received a Facebook friend request from a person named Adam Wolfgang, who she did not know or recognise, but because of his name and her interest in travelling to Germany, she accepted this friend request. It was in fact the offender using this false Facebook identity. He conversed with her for about two to three days over Facebook, largely about Germany, and then asked CD for her Skype details, which she provided. They then started to communicate over Skype, I understand by way of Skype messenger, not by way of video.
Once that started, the offender began to communicate in a sexualised manner. CD told her friend EF about these messages from the person called Adam Wolfgang, and EF then told the offender, who was her boyfriend. The offender, in his own persona, then contacted CD and said he had a friend who he described as a hacker, who may be able to help her. He arranged for CD to alert him when she was next on Skype with the person Adam Wolfgang, and said that he would then arrange for this friend to find out the identity of Adam Wolfgang.
CD did that one night in late July 2010. She let the offender know that she was on Skype with Adam Wolfgang, and he told her to stay in communication with him because his hacker friend was close to identifying him. All of this, of course, was not true. At one stage, Adam Wolfgang, that is, the offender posing as Adam Wolfgang, told CD to turn on the camera in her computer. She told the offender about this request, and he instructed her to comply, so as to make it easier for his hacker friend to identify him. All of this, of course, was not true and quite manipulative. Adam Wolfgang then asked CD to expose her breasts, and added that he knew she would do so, because he knew that her boyfriend had a photo of CD on his phone, which was sexual in nature.
At this point, CDs boyfriend in fact started to ring the offender, because CD had begun to suspect that Adam Wolfgang was in fact the offender. But he did not answer. He did however continue to send SMS messages to CD, instructing her to comply with Adam Wolfgang's request, or his hacker friend would not be able to identify him. CD muted the microphone on her computer to prevent the offender from hearing her, and rang her friend EF, telling her that she suspected that the offender was posing as Adam Wolfgang. But EF did not believe this, and told her to do what Adam Wolfgang was instructing her to do. CD tried to ring the offender a few more times but he did not answer, so she shut her computer down. When this happened, the offender began to send CD SMS messages to the effect that his connection with Adam Wolfgang had been lost. He also told her that his hacker friend had a connection with the Hells Angels outlaw motorcycle gang, and had taken a great risk in attempting to help her and that she had not shown any respect or gratitude. He told her that the Hells Angels were furious with her and wanted to burn down her house, but that he was protecting her from them.
At this stage, EF started to receive messages from the identity Adam Wolfgang, asking her to try to convince her friend CD to go back online, or he would release photos, which he had, of her and her boyfriend, which would prevent her from going overseas. All of this, of course, was starting to become manipulative and complicated and a well-planned form of manipulation in the nature of menacing and harassing CD via the carriage service, so in summary, this offence involving CD involves the offender creating a false Facebook profile in the name of Adam Wolfgang and posing as that person as a means of blackmailing CD in order to obtain sexually explicit photos of her. In doing that, he used a carriage service to menace her. He was 21 at the time, and whilst the evidence does not set her age out exactly, I accept that she was around the same age or perhaps a little younger.
CD reported this to the police on 15 August 2010, who contacted the offender, but he told them that he had no knowledge of the incident. Again, there is no evidence about what, if anything, happened to that complaint she made to the police, or whether there was any further investigation of it. She also made a statement to police in the subsequent investigation that occurred about these events, and that statement was dated 12 July 2017. Connected to this offence is the offence involving EF. On 12 August 2008, in an attempt to get CD to re-establish contact with the person Adam Wolfgang, the offender communicated with EF using another false Facebook identity, Fred Piercson.
The exchange demanded that she persuade CD to check her inbox, and threatened that the offender, who he named as Vaughan, was a dead man, which was all CDs fault for ceasing contact. He threatened that physical harm would come to the offender, who it must be remembered was EFs boyfriend at the time, and also threatened physical harm to EF. He demanded that EF add him as a Facebook friend, claiming to have done some research on her, and threatened to involve her family in some way if she did not do so.
This offence then, which is sequence 30, involves the offender’s using yet another false Facebook identity, menacing and threatening EF via a carriage service for the purpose of EF attempting to persuade CD to check her inbox, all as part of an attempt to extort explicit photos from CD. Each of these two offences is serious, especially so that involving CD, where the actual aim was to extort sexually explicit photos from her. In each case there was the use of a falsely created identity, and more than one identity was created. There were threats of physical violence made towards EF, and, she believed, towards the offender. There was a threat also, indirectly, of physical violence to CD, by the mention of the involvement of Hells Angels and outlaw motorcycle gangs.
It, in my view, was complicated and very disturbing behaviour in circumstances where the offender was communicating with CD using two identities at the same time, one his own, trying to persuade her to continue to engage with the assumed identity, which was also him. It is in my view complex and disturbed behaviour. He was 21 at the time. She was his girlfriend's friend. He also abused the trust of his girlfriend, trying to persuade her to engage her friend to send sexually explicit photos. I have read and taken into account the victim impact statement provided by CD. She remains adversely affected by this manipulation, I accept, and particularly so because of the involvement in it of her best friend.
Given the escalating nature of these offences, I have concluded that each of these offences should give rise to a term of imprisonment of 12 months.
The next in time are the offences involving the victim GH, which are sequences 52, 67, 68, and 55, all of which occurred between April and August 2008, when GH was 16 or 17 and the offender was 19. Sequences 67 and 55 are for substantive sentence.
Sequence 67 is one of the 11 charges of sexual intercourse without consent, which occurred in July 2008, and sequence 55 is another of those 11 charges of sexual intercourse without consent, which occurred in August 2008. When sentencing the offender for this latter offence, sequence 55, I am to take into account two additional offences found in a schedule to Form 1(A). They are sequences 68 and 52. Sequence 68 is yet another charge of sexual intercourse without consent, contrary to s 61I. Sequence 52 is a charge contrary s 474.17(1) of the Criminal Code Act 1995 (Cth), of using a carriage service to menace GH.
The background to these offences is that the victim started to live with her father and his partner in Penshurst from June 2006, when she was 14. The family joined the Elouera Surf Life Saving Club. The victim was unemployed between 2006 and 2008, and had only limited access to funds and did not have either a vehicle or a driver's licence. The offender himself was a member of the Elouera Surf Lifesaving Club between October 2000 and April 2008. At that stage he was living with his parents in Bardwell Valley. He was communicating with the victim's sister by a mobile phone and MSN Messenger during late 2006 to early 2008. He started to communicate with the victim, GH, via MSN Messenger and mobile phone from early 2008.
Specifically, in February 2008, he participated in some webcam chat sessions with the victim using MSN Messenger. The victim was using a desktop computer in her bedroom which had an external webcam. She had found the offender to be charming and complimentary of her. She confided personal information to him, including her family circumstances and her limited access to money. During these sessions, the offender encouraged her to participate in games of Truth or Dare and encouraged her to reveal her body to him, or in his words, to flash him.
By early 2008, there had been a number of such MSN Messenger chat sessions between the two of them, and she had at his request exposed her naked body to him. She was 16 years old at the time, he was 19 and due to turn 20 in November that year. Some of these messages also included his simultaneously exposing himself to her, including masturbating in a way that she could see. He sent her a picture of his erect penis. The victim believed that this ongoing communication between them was live video transmission, and could not be recorded.
On an occasion, the offender told her that he would give her money if she agreed to do things for him or other people. He suggested that he could provide her with a fake ID, which she would need to have to work as a prostitute. He also told her that he could provide her with protection, including a firearm or pepper spray. She questioned the truthfulness of these assertions. He then assumed another identity online, a person who he referred to as Kieran, and introduced Kieran to GH as a person who worked on the wharves in Sydney and could access stolen or illegal goods, including firearms.
The victim started to communicate with this person referring to himself as Kieran via Messenger. She never met him in person and their communication was by way of written messages, never by way of webcam. This person started to tell the victim that he knew she only had limited money, and that he could help her out if she agreed to do things for the offender. He told her that the offender would accept these things that she was to do for him, in repayment of the debt she would owe to Kieran. He told her that he would provide her with money if she agreed to appear topless or naked for the offender over webcam chat sessions.
GH believed that Kieran was real, and did not realise that it was the offender. She felt intimidated by him because of the way in which the offender had described him, and started to avoid appearing online on MSN Messenger to avoid Kieran. She blocked him from her contact list, and shortly afterwards started to receive messages from a new MSN contact, again purporting to be Kieran, who made it clear that he was angry with her for trying to block him.
The offender then started to send GH text messages and to call her, and told her that she was upsetting Kieran. This contact occurred throughout April 2008. The person called Kieran then started to send her messages via Messenger when she was offline, demanding that she come back online. By May 2008, because she was scared of Kieran and concerned that she was being blackmailed, she again blocked Kieran. On 7 May 2008, she was contacted by another person who referred to themselves as Damien on MSN Messenger, who made it clear that he was the same person as Kieran. He told her that he had a video recording of her, and sent a file via MSN Messenger.
She recognised it as a recording of an earlier webcam chat session she had had with the offender, which depicted her topless but which she did not know was being recorded. The person Damien, who was in fact the offender, told GH that he would give the video to her father, sister, members of the lifesaving club and her school friends unless she agreed to do things for the offender.
In acting in this way, the offender was using a carriage service to threaten the victim, GH. Using his real identity, he also told GH that the person, Damien, would disseminate the video unless she agreed to do as Damien asked. He told her that he was now being threatened by Damien, and GH came to believe that if she continued to refuse to comply with Damien's demands, not only was there a risk that the video would be released to her family, friends and the like, but also that the offender would be put at risk. As a result of these threats, GH participated in the three instances of sexual intercourse with the offender which comprise the following charges.
All three of these offences, which are charged as sexual intercourse without consent, took place during 2008, when the victim was in year 11 at high school and was aged either 16 or 17. The offender was 19. All of this activity on the part of the offender, posing as both Kieran and Damien, is the subject matter of sequence 52, the Commonwealth offence of using a carriage service to menace GH, and is not a substantive offence for sentence, but is an offence to be taken into account as an additional offence when sentencing him in relation to sequence 55.
The first of the charged acts of sexual intercourse without consent is s 67, and is a matter for substantive sentence. It took place on a late afternoon or early evening in 2008, at a time in the year before GH turned 17. The person Kieran sent her a message saying that he would give her money if she agreed to perform oral sex on the offender, his friend. At this stage, she did not realise that Kieran was the offender. She left home and met the offender in Penshurst, who drove her to a park in South Hurstville. He parked the car and led her along a boardwalk path through a mangrove forest. They reached the landing, and he said let us do it here, or words to that effect. She refused, and was concerned that people might walk past. He said that it was not a concern, and pulled down his pants and underpants and exposed his erect penis.
The victim knelt down and placed her mouth over his penis. He put his hands either side of her head and pushed her head backwards and forwards. She began to struggle to breathe, and felt pain in the back of her mouth and started to cry. After a number of minutes, the offender ejaculated into her mouth. In fact, she did not consent to this sexual intercourse, and only participated because of the threats made to her by Kieran, who in fact was the offender posing as Kieran, to disseminate images of her. The offended took her back to the car and drove her home. She did not tell anybody about what had happened.
All sexual intercourse offences are serious. I have made that clear when dealing with the facts, in relation to the victim BB. This is not a minimal instance of this offence, but nor is it at the top of the range for offences capable of being charged under this section. It does not involve vaginal/penile penetration, but nonetheless the offender ejaculated into her mouth and acted forcefully during the sexual intercourse by pushing her head back and forth.
Perhaps more seriously, though, when assessing the objective criminality, is that this came about as a result of a threat to circulate images of her, and in circumstances where he was supposed to be a personal friend of her and her family, but acted through a fake identity using information he knew of her because of his friendship with her and her family, namely that she was vulnerable as a person and had limited financial resources. He also used a video image of her, which he had taken without her knowledge, albeit that she was behaving towards him in a sexualised way online, but in circumstances where she did not believe it was being recorded and saved. Those factors play a part in the assessment of the objective criminality of this offence.
This would appear to be a standalone offence with no additional offences to be taken into account. It is objectively serious, but as I have said, not at the top of the range. It was for a relatively short period and there was no additional violence nor threats made. It is below the midrange in terms of objective seriousness, and for that reason, and also the fact that there was a plea of guilty, the standard non-parole period of 7 years does not strictly apply, it must, however, be taken into account as some form of guidepost.
It seems to me that without the 25% discount for the utilitarian value of the plea of guilty, a starting point for this offence would be 4 years. There will be a sentence of 3 years with a non-parole period of 2 years. I will in due course address the issue of special circumstances, which will be relevant for all of those offences where it is necessary to fix a non-parole period.
Sequence 68 is an additional offence to be taken into account when sentencing for sequence 55. Chronologically, it is the second act of sexual intercourse without consent which occurred, involving GH. It also occurred in the late afternoon or evening during 2008, at a time before the victim turned 17 that year. Again, the offender, posing as Kieran, told the victim that he would give her money if she agreed to perform oral sex on the offender. The victim feared that he would send the video she knew from earlier to her family and friends if she did not agree. She thus met with the offender at the same park as for the previous offence, but on this occasion, she refused to perform the act in a public place. The offender, in what can only be described as a further bizarrely manipulative act, claimed that Kieran had specified that the act needed to be performed in public. The victim continued to refuse to do so, and so the offender agreed that it could happen in his car. He stayed in the driver's seat and the victim was in the front passenger seat. He removed his pants and underpants and exposed his erect penis. The victim leant across the centre of the car, and placed her mouth on his penis. He took hold of her hair with both hands and began to move her head up and down against his penis. She felt pain because he was pulling her hair, and began to struggle to breathe and felt pain in the back of her throat. She also felt pain in her chest, because it was bumping against the gearstick between the seats. After about ten minutes, the offender ejaculated. Again, she did not consent to this sexual intercourse and only engaged in it because of a threat that had been made by the person called Kieran, in fact the offender, that he would disseminate the video.
When the act was over, she asked the offender about the money that she had been promised. The offender told her that he did not have the money and that he would go to meet Kieran to obtain it and give it to her later. For reasons that do not bear logical scrutiny, this sequence is not charged as a separate substantive charge, nor is it an additional offence to be taken into account when sentencing for s 67, which would make more sense, because of the factual similarities and timing. It is, however, an additional offence to be taken into account when sentencing for sequence 55, the third act of sexual intercourse without consent, as is sequence 52, the Commonwealth using a carriage service offence to which I have already referred.
Sequence 55, as I have said, is the third offence of sexual intercourse without consent. It occurred a few weeks after the earlier two offences, and just before the victim's 17th birthday. Again the offender, posing as Kieran messaged the victim, telling her that she had to go with the offender to his house and have anal sex with him. He said that this was going to be recorded on video by the offender, which would then be distributed to him via a friend, as proof that the act as demanded had occurred. He sent a message making a threat that if she did not do this, he would distribute the earlier video. He said, "It's not even that bad, and you can walk away with $500". She did not want the money from the offender or his friend and in any event did not believe that the money would be forthcoming, but complied with the demand because she believed that otherwise her family and friends would be given the video, which she knew already existed. The offender and victim exchanged text messages to arrange to meet.
At about 11:00 pm one night, she met him in Penshurst. They went to the Bardwell Valley Golf Course, and walked around for about half an hour and then got back into his car. He then drove her to his home in Bardwell Valley, arriving at about midnight. It would appear that there was no one awake in the house. He led her to a room at the front of the house, where there was a computer. He instructed her to bend over, and she did. He began to push his erect penis against her anus, which caused immediate pain. He continued to push his penis against her anus until it entered her anus. She felt pain and began to bleed. He laughed, and said “…at least we can use the blood for lube.” He continued to penetrate her anus for about ten minutes before ejaculating onto her buttocks. She felt strong pain throughout this incident. She did not consent to this, and only engaged in this behaviour because of the threat to disseminate the earlier video. She cleaned herself with a cloth and then demanded to see the video recording that she had been told would be made. The offender said, "Actually, I was so into it, I forgot to film it, so we will have to do it again". He said he would try to talk to Kieran, but that ultimately Kieran would demand proof that the event had occurred. He then drove the victim home.
Over the following weeks the victim blocked MSN contacts for the offender, Kieran and Damien and reduced her social media presence. The offender continued to send text messages to her, but she stopped responding. Eventually, he stopped sending her messages. Apparently, this victim made a statement to police on 19 February 2018, which obviously was after he was arrested and after statements had been made by others. This is a serious offence of sexual intercourse without consent. Again, the surrounding circumstances aggravate the objective criminality, in that the event occurred because of threats made in fact by the offender posing as two different online identities to circulate a video that he himself had made of the victim. That video itself was made without her knowledge, and in circumstances where she believed her interaction with the offender, albeit of a sexual nature, was occurring via live video and would not be recorded and saved. The offence was planned and calculated. The hallmarks, it seems to me, are bizarre and manipulative. She was obviously vulnerable and naive. It involved penetrative anal intercourse, which caused her pain and bleeding and lasted for about 10 minutes. It is, in my view, at about the middle of the range for offences capable of being charged under this section, and further, I must take into account the earlier incidents of sexual intercourse without consent involving forced oral sex, and also the Commonwealth offence of using a carriage service to menace and harass. These two additional offences must be taken into account in a meaningful way. The standard non-parole period does not apply strictly, however, because it is a plea of guilty. Nonetheless, this is a serious offence in its own terms, and in my view, the appropriate sentence is one of 6 years with a 4 year non-parole period for all of those factors, having taken into account the plea of guilty and other matters which I will address in a global way later in this sentence, particularly involving the subjective circumstances of the offender.
GH is not a victim who has provided a victim impact statement to the Court, but I accept that, without doubt, the impact of these offences on her would have been seriously adverse, and that is more likely than not to be a continuing situation, particularly so when she discovered that the offender had been charged, and she was asked to provide a statement, and to remember the details of these events that occurred. Even at the time, she was vulnerable, and had particular issues surrounding her. She was taken advantage of and the Court is entitled to take into account, in the absence of any evidence, the real likelihood that there have been some adverse psychological sequelae flowing to her as a result of these offences.
The next offences in time involve the victim IJ, and sequences 36, 37, 39, 41 and 42. They cover a period from June 2010 to July/ August 2010. Sequences 37, 39, 41 and 42 are for offences of sexual intercourse without consent, and when sentencing for Sequence 37 I am to take into account an additional offence of using a carriage service to solicit child pornography, an offence contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth), which appears in a schedule to a Form 1(B) signed by the offender and exhibited in these proceedings.
Chief Superintendent David gave evidence that this form of protection allowed association, access to visitors and the like. It is not as onerous as segregation, and he has largely been in this form of limited association protection during 2018, and up until recently. I accept that over the last perhaps two weeks he was moved back into segregation, perhaps in preparation for these proceedings, and that the last two weeks have seen him in more onerous and restricted conditions; but I also accept more probably than not that after today he will become a sentenced prisoner, and will be classified formally. It is unlikely, in my view, and based on my experience, that he will remain in segregation for any length of time, and I accept more probably than not that he is likely to return to the form of protective custody or limited association that he has been in for most of his time on remand. I accept Mr David's evidence that he is not likely to serve his time in custody anymore onerously than any other prisoner on protection, and the Court is only too aware that there are very many of them.
The offender was between 19 and 28 during the period of offending. At the time of his arrest he was living in Campbelltown with his girlfriend, who, as I have said, was also a police officer, and who he met in that context. He remained a serving officer until his resignation in September 2017 after going into custody and whilst facing these charges. He apparently had been suspended at the beginning of 2017. He has two siblings who have little contact with him. He has parents still alive who have always been supportive of him, and who visited him regularly in the initial period of his incarceration. They have since moved interstate and see less of him.
I accept from the psychiatric report that the offender appears to have had a positive upbringing in the St George area of Sydney, completing year 12, achieving relatively well at school, without any evidence of childhood conduct issues. He seems to have enjoyed, as I have said, a positive childhood with supportive parents. He had a very early ambition to become a police officer or a fireman, and indicated that this was because of a desire to help people. He studied a degree in criminology at the University of New South Wales between the ages of 18 and 21. He worked for a period in a cadetship with the Sydney Water Catchment Authority, until he was accepted into the police force in December 2011.
According to the psychiatric report from Dr Furst, there were no indications that he suffered from symptoms of depression or anxiety in his early 20s. Whilst there may not have been any indications outwardly, one thing is clear however, and that is that from the time he was at least 19, he was engaging in predatory sexual behaviour and manipulation and harassment of young women, for base sexual motives. He was apparently subject to a sexual harassment claim in 2015, arising from his workplace, which was upheld, and he was moved from the city to Mascot where he stayed for about 12 months, until he was eventually suspended.
He told the psychiatrist that he had been exposed to significant stressors or stressful events in his role as a police officer, including attending suicides, witnessing a person jump from a high rise building, being present in the early hours of the morning at the Lindt café siege, and was present at a distressing incident in the city where a woman was set alight by her boyfriend. All of this occurred from 2012 at the earliest, whereas the offending here commenced in 2007, and many of the more serious offences in fact occurred in the period before he joined the police force, and before any of these stressful events had occurred.
He claimed to Dr Furst to have been suffering nightmares and flashbacks of these traumatic events since the start of 2015. According to his report to Dr Furst, he had used alcohol since he was 15 and started to drink to excess between 2011 and 2012, and continued to do so up until the time of his arrest. But this too, this use of alcohol or abuse of alcohol, to the extent that it has been diagnosed as an alcohol abuse disorder, did not start until well after the commencement of these earlier offences. He has never had counselling for excessive drinking, but did see a GP at one stage at the request of his then girlfriend, because she was concerned about it.
There is no history of illicit drug use or a gambling disorder. He has had no major medical problems and there is no family history of a mental illness. None of this, in my view, explains his offending. He told Dr Furst that he was aroused by the sexual nature of the offending. I am not quite sure what this means. I accept Dr Furst's opinion in circumstances where in fact the offending involved him engaging in sexual conduct, namely being fellated by young women, which I assume was in circumstances where he was sexually aroused. Dr Furst's opinion is that this offending was likely driven by sexual deviance. Apparently he had watched a lot of pornography in the past. He is attracted to regular heterosexual sex, and has not identified any attraction to inflicting physical harm or engaging in rape fantasies, or the like. He does not indicate any sexual attraction to men or boys, or prepubescent girls.
He claims to have been the victim himself of sexual assault between the ages of nine and 12 by a male about three years older than him. That is not something, as I understand it, for which he has ever received any treatment. He claimed to have an ongoing close relationship with a woman who is a few years older than him, who has children. Her husband apparently has a limited life expectancy, and the offender claims that his relationship with her and her children will be his main support when he is released. This material, however, is only by way of history provided by him to Dr Furst. There is no evidence otherwise in these proceedings to verify any of those claims.
His parents, as I have said, remain supportive of him and used to visit him frequently, but now that they have moved interstate they see him less often. He claimed to Dr Furst to regret his actions, admitting that he had done the wrong thing, and had lost everything. Indeed, he has lost everything. He has lost his career, he has lost his house, he has lost whatever friends he had. Dr Furst has perused the Justice Health medical records and I accept from those that in fact he was initially managed in segregation in the months following his arrest. He has undergone some mental health assessments, on 26 June 2017 and 21 July 2017, and there were concerns about his deteriorating mental health, including the report of some suicidal feelings. Without intending to minimise this in any way, it is of course not surprising that he might feel like that in the circumstances that he then found himself, in custody, looking at a long prison term, as a former police officer with everything in his life having come to a sudden stop.
He reported that at the time of his arrest he had been drinking 15 to 16 standard drinks a day, and that in custody at that early stage he was feeling depressed and having panic attacks. He was seen by another psychiatrist in custody on 15 January 2018, and was thought to be having posttraumatic stress disorder related nightmares. He was commenced on some medication for that. There was further assessment in April 2018, in which he reported flashbacks, and was diagnosed with posttraumatic stress disorder and there was yet another assessment in May 2018, with further reports of extremely disturbing nightmares relating to his previous work experiences as a police officer. He continues to receive some medication for his mental disorders.
I accept Dr Furst's diagnosis that he currently suffers from posttraumatic stress disorder, probably arising from the traumatic events that he witnessed or was involved in as a police officer. That diagnosis is based on the history given, and the history of nightmares given. I accept Dr Furst's opinion, and those of the psychiatrists who have seen him, that he suffers from this disorder. There is no evidence, however, of any connection between that condition from which he now suffers, and his commission of any of these offences, certainly not for those that occurred before he became a police officer. Nor is there any evidence of any connection between his posttraumatic stress disorder and any of the offences he committed after he became a police officer, and was subject, if he was, to these distressing events. Nor is there anything in the facts, extensive as they are, in relation to any of the offences to indicate that he was behaving in a way to indicate anxiety, panic, flashbacks or nightmares. It may well be the case that he was up until the time he was arrested, but there is nothing in the evidence to indicate that.
He is being treated for this condition in prison, and he is therefore a person who suffers from a psychiatric condition which is a fact. The fact that it has no connection with his offending behaviour is not the only basis on which his psychiatric condition ought be taken into account on sentence. The fact that he is a person who suffers from a psychiatric condition may be relevant, particularly so in determining the extent to which, if at all, he is a less viable vehicle for general deterrence. In this case, his psychiatric condition of post-traumatic stress disorder is not, in my view, something that alters the appropriate sentences, and is not something that would minimise in any way the extent to which his sentences should reflect general deterrence.
He is also diagnosed by Dr Furst as suffering from what is called unspecified paraphilic disorder, but as I understand it, that diagnosis is based on the fact that he in fact committed the offences before me for, and what is said to be the degree of sexual deviance involved. I accept that this so called disorder is, according to Dr Furst, characterised by recurrent intense, sexually arousing fantasies, urges, or behaviours. This diagnosis as described in that way, does not seem to me to fit the facts surrounding these sentences.
His sexual offending was indeed surrounded by controlling and manipulative behaviour, and there was considerable planning, but it seems to me there is nothing about the sexual activities on the facts that are before me, to indicate that he was playing out any particular fantasy. He was tricking, manipulating and blackmailing women into fellating him, usually in his bedroom, and once or twice in a car or outdoors, but with nothing else. He was doing the same, that is, tricking, manipulating or blackmailing them, in an attempt to get them to give him naked pictures of themselves.
There is no evidence that there were any fantasies surrounding these activities. In fact, it had the hallmarks similar to someone accessing pornography. He also sexually assaulted a number of different women, most of the time in a fairly cold and calculating way, not apparently involving any sexually arousing fantasies, urges or behaviours that are distressing or disabling, but rather involving sexual activity that on the facts, he would seem to have enjoyed. He committed these offences for sexual pleasure, not in my view, as a result of sexual deviance, or at least not on the evidence that is before me.
What he did was illegal. It involved his obtaining of sex illegally because it was without consent, and on the basis of threats. It was not, in my view, the result of any particular form of sexual deviance. I would give little weight to this diagnosis, albeit I accept that Dr Furst is of that opinion, but on the material before me, it seems to me that this diagnosis is not actually available. However, Dr Furst, on the basis of his diagnosis, has suggested that it is something that can be treated. Indeed, there are programs available in the prison, and hopefully he will have access to them.
He is, of course, a sex offender. These are all sexual offences, and there are sex offender programs in the prison. There is a suggestion also by Dr Furst that because these offences were all driven by sexual desires, that when he is due for release he might be treated with anti-libidinal medication. Whether or not that occurs will be a matter for the medical staff and Corrective Services, in due course.
The offender has agreed to undertake whatever treatment is available to him as a sex offender whilst he remains in custody, and to do so, of course, must improve his prospects of rehabilitation. I accept that he has expressed regret for his actions, and on the face of it, I accept that that is genuine. To that extent, this indicates some contrition and remorse. He has also acknowledged that his offences caused harm to his victims, as indeed they did. He appears to be prepared to engage in appropriate counselling within the gaol system, and says that he wants to understand his offending behaviour so that he does not offend like that again. That, of course, would be beneficial to him and to the community on his release, and it is to be hoped that the sex offender programs in which he will engage will, at the very least, help him to understand why he acted the way he did so that he does not do it again.
His prospects of rehabilitation, overall, it seems to me, are relatively good. He has acknowledged his guilt. He has expressed remorse. He is prepared to seek help, and there would appear to be a range of options available in the prison system to help him and, if it be the case that he suffers from some form of sexual deviance, to treat that.
He will be much older when he is released. He does not seem to have much support in the community, but these matters no doubt will be addressed by Community Corrections when he is eligible for release to parole.
In indicating what sentences will be imposed, I have for some of the particular charges, where it is necessary to impose a non-parole period, given an indication of the length of the non-parole period. In all cases in doing so, I have indicated a lower non-parole period than the statutory ratio of 75% applicable for the state offences.
To the extent that is necessary for me to indicate reasons for doing so, I accept that there are limited special circumstances here. One is that there will be a degree of partial accumulation of all of the sentences; the second is that this is his first time in custody; and the third is that his non-parole period, at least to some extent, will be served in slightly more onerous circumstances than it might be for others, but to a very limited extent.
The issue then arises of how to structure this overall sentence, given the individual sentences indicated. There are ten counts of sexual intercourse without consent, involving four victims. Some are more serious than others, and some have serious Form 1 offences attached to them, whereas others do not.
On the basis of the sentences that I have already indicated, however, this would be the outcome in relation to the victim BB. There would be a total of 21 years, with a total non-parole period of 13. For the victim GH there would be a total of 8 years with a total non-parole period of 5 years. For IJ, there would be a total of 14 years with the total non-parole period of 10 years and for OP a total of 3 with a non-parole period of 2. That would be a total of 46 years. Even though these are serious offences, and there are ten separate offences involving four victims, that would be very much excessive in the circumstances. The sentences for this group of offences has to be structured to reflect total criminality.
I propose to impose an aggregate sentence for the four sentences involving BB. As I have said, on the basis of the sentences which I have already indicated, the total would be 21 years, but I will be imposing an aggregate sentence of 10 years, with an aggregate non-parole period of 5.
It is here that I must again reiterate the presence of some special circumstances, namely partial accumulation, first time custody, and some limited more onerous conditions in prison during the non-parole period. However, as I hope will become clear, this particular non-parole period and the resulting period on parole, is also calculated, because it will be the last sentence in time imposed of the sentences I will impose, and will therefore ultimately permit a period on parole of five years, which in my view is more than sufficient to deal with whatever might need to occur with the offender, when he is next able to be released to the community. So to an extent, the structure of this particular aggregate sentence is for the purpose of the overall sentence structure.
For the four counts involving IJ, as I have said, the fully accumulated total would be 14 years, but in my view the aggregate sentence should be 7 years with a 5 year aggregate non-parole period. For the two sentences involving GH, they would total, as I have said, 8 years. The overall criminality for the latter of these offences is higher, because of the nature of the sexual intercourse involved, and the actual physical harm suffered by the victim. There will be an aggregate sentence for those two offences of 6 years with a 4 year non-parole period.
The offence involving OP is one offence which I have already indicated will be a sentence of 3 years with a 2 year non-parole period. Again, I acknowledge that the ratio between the non-parole period and the overall sentence for these four sentences is different, but it is not meant to be mathematically precise or identical, and it is done in a way to facilitate the overall structure of the sentence. In any event, the non-parole periods which I am required to set for the offences involving IJ, GH and OP will have no effect, and certainly will not lead to his being released to parole at the end of them, because they will be part of an overall longer non-parole period. I set them only because the legislation requires me to.
If those aggregate sentences were entirely accumulated, it would be 10 years plus 7 years, plus 6 years, plus 3 years, which would be 26 years. That too, in my view, is excessive for the criminality represented by all of these sexual intercourse without consent offences, again, despite the serious nature of the offending, but bearing in mind the actual objective criminality of most of the individual offences.
In my view, the total criminality should be reflected by an overall period of custody for these offences of 16 years with an overall non-parole period of 11 years, which I propose to deal with by a partial accumulation of each of the four groups or single sentence.
Dealing with the Commonwealth offences, there are two groups. There are ten offences contrary to s 474.17(1). I have indicated a number of sentences which in my view are appropriate for each of those offences, which are sequences 34, 24, 33, 23, 11, 32, 12, 33 and 31. As I calculate it, that would lead to a total of 8 years and 9 months. That is excessive in the circumstances.
It would be appropriate to deal with these offences also by way of an aggregate sentence, which is available to the Court for Commonwealth offences. The limitation provided for in s 49(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is that no aggregate sentence can exceed the maximum which would have been available had all of the individual sentences been sentenced separately, and accumulated. The maximum for each of these sentences is 3 years, so the maximum that cannot be exceeded would be 30 years. In my view, the relevant aggregate sentence for this group of ten sentences is 5 years.
Because I will be imposing this aggregate sentence of more than 3 years for this Commonwealth sentence, I understand that I am required to also set an aggregate non-parole period, and I will do so as non-parole period of 3 years, but again, I do not expect that he will be released to parole at the expiration of that non-parole period, because it will be part of an overall sentence.
Sequence 15, as I have said, is a standalone offence of 3 years with a non-parole period of 2 years. Sequence 18 is a standalone offence of contrary to s 474.19 of the Criminal Code Act 1995 (Cth), which I have indicated is to be sentenced in a term of 18 months. Sequence 1 is a standalone offence, and I have indicated a term of 3 years. I have indicated also that sequences 20 and 21, the use of identity theft offences, attract a sentence of 3 years each. The misconduct in public office offence, sequence 1 and sequences 20 and 21, are connected, and whilst they did not entirely overlap, it seems to me appropriate that they be ordered to be served concurrently, and that they be fixed terms, because they will be part of a much longer overall non-parole period.
If each of these was then accumulated on the other, it would, on my calculation, be a little more than 31 years, which also is excessive to represent the total criminality. The total criminality represented by all of these offences should give rise to an overall sentence of 20 years, with an overall non-parole period of 15 years.
Whilst I am conscious that this equates to the statutory ratio of 75% for a non-parole period, where many of the indicative or other sentences imposed have indicated a lower non-parole period; and whilst I have indicated some special circumstances, in my view, nothing less than a non-parole period of 15 years would be sufficient to deal with the objective criminality and the period on parole of 5 years is more than sufficient to deal with the supervision and needs of the offender, once he is released.
The offender is convicted in relation to all offences. For sequences 1, 20 and 21, he is sentenced to a fixed term of imprisonment of 3 years commencing 31 May 2017, and expiring in 30 May 2020. I declined to set a non-parole period because this is part of a longer overall non-parole period.
For sequences 4, 24, 33, 23, 11, 32, 12, 33, and 31, the s 474.17 offences, he is sentenced to an aggregate term of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 5 years commencing 31 May 2019, and expiring 30 May 2024; with a non-parole period pursuant to the provisions of the Crimes Act 1914 (Cth) of 3 years, commencing 31 May 2019, and expiring 30 May 2022. The indicative sentences are:
(1) Sequence 34 - 9 months;
(2) Sequence 24 - 12 months;
(3) Sequence 30 - 12 months;
(4) Sequence 3 - 2 years;
(5) Sequence 23 - 6 months;
(6) Sequence 11 - 12 months;
(7) Sequence 32 - 9 months;
(8) Sequence 12 - 9 months;
(9) Sequence 33 - 6 months;
(10) Sequence 31 – 6 months.
For sequence 15, he is sentenced to an overall term of imprisonment of 3 years commencing 31 May 2020, expiring 30 May 2023, with a non-parole period of 2 years, commencing 31 May 2020, expiring 30 May 2022, and with parole thereafter of 12 months, commencing 31 May 2022, expiring 30 May 2023.
For sequence 18, the s 474.19 offence, he is sentenced to a term of imprisonment of 18 months commencing 31 May 2020, and expiring 30 November 2022.
Sequence 27, he is sentenced to a non-parole period of 2 years commencing 31 May 2022, expiring 30 May 2024, with parole thereafter of 12 months commencing 31 May 2024, expiring 30 May 2025; giving rise to an overall term of imprisonment of 3 years commencing 31 May 2022, and expiring 30 May 2025.
For sequences 67 and 55, he is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 7 years, commencing 31 May 2024, expiring 30 May 2031, with a non-parole period for 5 years commencing 31 May 2024, expiring 30 May 2029, with parole thereafter of 2 years, commencing 31 May 2029, expiring 30 May 2031. The indicative sentences for sequences 67 and 55 are:
(1) Sequence 67 - 3 years with a 2 year non-parole period;
(2) Sequence 55 - 6 years with a 4 year non-parole period.
For sequences 37, 39, 41, and 42, he is sentenced to an aggregate term of imprisonment pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 7 years, commencing 31 May 2026, expiring 30 May 2033 with a non-parole period of 5 years, commencing 31 May 2026, expiring 30 May 2033, with a parole thereafter of 2 years, commencing 31 May 2031, expiring 30 May 2033. The indicative sentences are:
(1) Sequence 37 - 3 years with a 2 year non-parole period;
(2) Sequence 39 - 3 years with a 2 year non-parole period;
(3) Sequence 41 - 4 years with a 3 year non-parole period;
(4) Sequence 42 - 4 years with a 3 year non-parole.
For sequences 57, 60, 62, and 65, he is sentenced to an aggregate term of imprisonment of 10 years commencing 31 May 2027, expiring 30 May 2037, with a non-parole period of 5 years commencing 31 May 2027, expiring 30 May 2032, with parole thereafter commencing 31 May 2032, expiring 30 May 2037. The indicative sentences for BB are:
(1) Sequence 57, 5 years with 3 year non-parole period;
(2) Sequence 60, 5 years with a 3 year non-parole period;
(3) Sequence 62, 6 years with a 4 year non-parole period;
(4) Sequence 65, 5 years with a 3 year non-parole period.
I make a notation that except for the non-parole period attaching to the aggregate sentence for sequences 57, 60, 62, and 65, the offender, whilst eligible for parole, will not be able to be released to parole, wherever sentences requiring a non-parole period have been set because it is all part of an overall longer non-parole period.
At the time of announcing these sentences an error was noticed when referring to the indicative sentence for Count 55. It does not affect the overall assessment of the total criminality which I will not change. My assessment is the overall criminality should give rise to 20 years, with a 15 year non-parole period. How I go about structuring it of course is complicated but it has just become apparent that my analysis of how I reached that now has an arithmetical error in it, because of my misstatement of the indicative sentence that I said was relevant to sequence 55, and I have to correct that. It would be so much better if it had been brought to my attention by one party or another at the time.
I go back to my sentence judgment in this matter and in particular at a stage earlier today, which dealt with the issue of how to structure this sentence given the indications that I had made. In the course of that, I said that of the ten offences of sexual intercourse without consent, two of them related to the victim GH; and I said that on the basis of the two sentences I had indicated for those, being sequences 67 and 55, that gave rise to a total of 8 years with a total of a 5 year non-parole period if they were entirely accumulated on each other. I have now been reminded that when indicating the sentence for sequence 55 yesterday, I indicated that it was to be 6 years with 4 years as the indicative sentence. That of course means that the total for those two offences should be 9 years, with a total non-parole period of 6 years; and to that extent, those findings made today are in error.
It would also mean that the total for all of the sexual intercourse without consent offences, if entirely accumulated on each other, would be 47 years not 46 years, as I indicated previously. That does not however change the finding that I made, that although each of these offences is serious and represent ten separate offences involving four victims; nonetheless 47 years would be excessive, and that the sentences for the offences had to be structured to reflect total criminality.
I repeat, that the two sentences involving GH, which I initially said would add to a total of 8 years, but in fact on the indications would add to a total of 9 years, was too high, and I do not propose to change that view. There should be an aggregate sentence for these two offences, but it should be an aggregate sentence of 7 years with a non-parole period of 5 years, not 6 with 4 as I originally said.
That also has the effect of meaning that an addition of all of the aggregates plus the individual sentences, would give rise to 27 years, not 26 years. Again, that is excessive, but the addition of one year does not change my overall finding, that the criminality for all of these sexual intercourse without consent offences should give rise to overall imprisonment of 16 years with an overall non-parole period of 11 years and I repeat the earlier finding that I made, that in my view, the overall criminality of all of the offending, should give rise to a term of imprisonment that effectively is 20 years, with an overall non-parole period of 15 years.
What needs to be done then, is to alter slightly the dates originally announced for sequences 67 and 55, to give rise to those new findings. For those two sequences, 67 and 55, I withdraw the earlier announcement, and instead the offender will be sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 7 years, with a 5 year non-parole period, which commences on 31 May 2024 and expires on 30 May 2031, with a non-parole period which commences on 31 May 2024 and expires on 30 May 2029, with parole thereafter of 2 years, commencing 31 May 2029, expiring 30 May 2031. Paragraph 274 of this judgement has been amended accordingly.
I have taken into account for all substantive offences the additional offences found in Form 1 documents A to K, exhibited in these proceedings.
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Decision last updated: 15 February 2022
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