R v Williams (a pseudonym) (No 2)

[2021] NSWDC 12

District Court

New South Wales

Medium Neutral Citation:

R v Williams (a pseudonym) (No 2) [2021] NSWDC 12

Hearing dates:

17 December 2020

Decision date:

11 February 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 13 years 6 months with a non - parole period of 9 years.

Catchwords:

CRIME – Sexual Assault & commit act of indecency - sexual intercourse with person 10 or over & under 16 - aggravated sex assault victim under the age of 16 years- three complainants

SENTENCING — Relevant factors on sentence — three complainant’s – course of conduct- period were he did not offend- offences against younger brother- offences against female children - exploitation of relationships between offender and child complainants - grooming – sexual assault after assuming parental responsibilities - ill-health can mitigate punishment – unsworn statements to psychologist carry little weight- opinion of professional psychologist still of value- stale crimes but no progress toward rehabilitation - principle of totality- impact on complainants - victim vindication.

Legislation Cited:

Children (Criminal Proceedings) Act 1987

Crimes Act 1900

Crimes (High Risk Offenders) Act 2006

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

Attorney General’s Application No. 1 (2002) 56 NSWLR 146

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

DPP (C’th) v Beattie [2017] NSWCCA 301

Hili v The Queen (2010) 242 CLR 520

Kristensen v R [2018] NSWCCA 189

Magnuson v R [2013] NSWCCA

MAKv R [2006] NSWCCA 381

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Markarian v The Queen (2005) 228 CLR 357

Mill v The Queen (1988) 166 CLR 59

MPB v R [2013] NSWCCA 213

Muldrock v The Queen (2011) 244 CLR 120

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

R v Burrell (2000) 114 A Crim R 207

R v Cattell [2019] NSWCCA 297

R v Clinch (1994) 72 A Crim R 301 at 306

R v L, unreported, NSWCCA, 17/6/96

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

R v MJR (2002) 54 NSWLR 368

RvTodd [1982] 2 NSWLR 517

R v Williams(a pseudonym) [2020] NSWDC 836

Rios v R [2012] NSWCCA 8

RL v R [2018] NSWCCA 274

Ruanov R [2011] NSWCCA 149

Smithv R (1987) 44 SASR 587

Thompson v R (2000) 49 NSWLR 383

Weininger v The Queen (2003) 212 CLR 629

Texts Cited:

Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Impacts, Volume 3, pages 9 - 11.

Category:

Sentence

Parties:

Scott Williams (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr Z Khan (for the offender)
Ms N Keay, Crown Prosecutor

Solicitors:
Legal Aid NSW (for the offender)

File Number(s):

2018/88052; 2018/311339; 2018/287604;

Publication restriction:

Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900 there is to be no publication of a complainant’s name or anything that may lead to identification of them including the name of the accused. There is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child. Identifying information will be removed from any published version of the judgment to comply with the statute. Pseudonyms have been used for the names the offender and the complainants.

SENTENCE

Introduction

1. Scott Williams, a pseudonym, was born in 1971. In 1990, Williams, then aged 19, physically, indecently and sexually assaulted his younger brother George, a pseudonym, who was then aged 14 (Counts 1 & 2). In 1992, Williams had unlawful sexual intercourse with Susan, a pseudonym, then aged 14 (Counts 3, 4 & 5). Later in 2002 Williams indecently assaulted and then had unlawful sexual intercourse with Lisa, a pseudonym, then aged between 12 and 14 (Counts 6, 7, 8 & 9). His ‘relationship’ with Lisa continued after she turned 16.

2. The indictment and Forms 1 set out the various counts, which invoke sections 61E(1), 61D(1), 61I, 61J(1), 61M(1), 66C(1) and 66C(2) Crimes Act 1900, as they applied at the various times. As should be clear from this judgement in all the circumstances it is appropriate that I take the Form 1 matters into account when sentencing for the counts to which they refer.

History

3. The counts for sentence cover the period February 1990 to June 2007.

• Williams was born 1971.

• His brother George was born 1976.

• Susan was born 1978.

• Lisa was born in 1988.

• In 2002 Susan’s parents went to the police and Department of Community Services (DOCS) who spoke to the offender but no other police action was taken.

• In 2007 Lisa complained to the police but no police action was taken.

• In 2011 George complained to Police but no police action was taken.

• In 2018 police contacted Susan who then made a disclosure for the first time.

• Williams was arrested on 18 June 2018. Bail was granted.

• In May 2019 Williams was committed for trial at Goulburn District Court.

• Bail was refused on 29 November 2019.

• Bail was granted on 12 May 2020.

• The matter was transferred to Wollongong District Court in May 2020 because of COVID-19 related listing problems at Goulburn District Court.

• A pre-trial hearing about proposed tendency evidence was heard on 19 June 2020.

• On 26 June 2020 I ruled that:

1. The proposed prosecution tendency evidence could be admitted at trial.

2. The defence application to separate the trials of each complainant is refused: see R v Williams (a pseudonym) [2020] NSWDC 836.

3. A jury trial be listed for 12 October 2020.

• On 22 September the trial date was vacated – This was an expected outcome as the parties had informed the court after the voir dire decision that they were “in discussion.”

• On 13 October 2020 a fresh indictment was presented with my leave and the consent of defence. Williams was arraigned and a plea of guilty was entered to 9 counts. He accepted his guilt in relation to a number of Form 1 matters.

• Sentence proceedings commenced on 17 December 2020.

• On 17 December 2020 following a detention application, bail was refused.

• On 12 January 2021 Williams was sentenced to 18 months imprisonment, non-parole period 9 months at Wollongong Local Court

• On 11 February 2021 the sentence proceedings concluded.

Agreed Facts

4. There are detailed agreed facts in evidence. What follows is a short summary.

5. When Williams was still too young to be criminally responsible for his actions he would repeatedly assault his younger brother George by ripping off his clothes and lying on top of George’s naked body. As they grew older other assaults occurred regularly. Although the boy’s mother witnessed one such incident, her response was to “flog’ both boys. The agreed facts note Williams told police his family was dysfunctional and he had an unhappy childhood.

6. In 1990 Williams was then 19 and George was almost 14. Williams forced George to remove his clothes. He lay on him. There was penis on penis contact until Williams ejaculated. A lubricant was used. George was slapped to the head and left feeling sick, gagging and coughing. The event occurred in the family home but George was too scared to tell his mother.

7. Later that year there was an act of forced anal intercourse. A lubricant was used. George was screaming and crying in pain: (Count 1). The act was accompanied by slaps and an elbow to the face. Afterward George said to Williams “Your done cunt.” Williams, in response, got an air rifle and shot George in the thigh with a pellet: (Form 1). The next day George noted he was bleeding from his anus. The events occurred in the family home. Again, George was too scared to tell his mother.

8. In 1991 Williams, then aged 20, and his family moved to a home near where Susan, then aged 12, lived with her family. Williams would buy her things and give her and her sister money.

9. He soon formed a sexual “relationship” with Susan. He started having penile vaginal intercourse with her in 1991. Count 3 relates to one such act, which occurred in the rear seat of his car. The act itself was brief but caused Susan pain. At the time Susan, who had had no sex education, had no idea what the offender was doing to her. This sexual “relationship” continued for about a year. Susan was too scared to tell her mother what was happening.

10. In the latter part of 1992 while Williams and Susan were in his home there was an act of penile vaginal intercourse: (Form 1). He then rolled her over and put his penis into her anus. She was in agony and crying. She asked him to stop. He did not stop. The pain lasted two days: Count 4.

11. There were other acts of penile vaginal intercourse. One such act occurred in Williams’ car while they were parked at a reserve. Susan recalls this occasion because the public toilets nearby were “disgusting:” (Form 1).

12. In December 1992 Susan’s mother walked in while the two were having penile vaginal intercourse: Count 5. Susan’s mother punched Williams in the face. Soon after Susan became aware she was pregnant. She had a termination on 12 February 1993.

13. In 2002 Williams formed a sexual “relationship” with Lisa’s mother. Lisa, then aged 13, and her siblings would visit the offender’s home and play with his young children. He would regularly tickle Lisa and touch her breasts as part of a “game.” In January 2002 the offender played a “game” with Lisa and put ice down her top. He then fondled her breasts: (Form 1).

14. In February 2002 Lisa’s mother separated from her then partner. She and three of her daughters, including Lisa, moved in with the offender. In February and March 2002 the offender would go into Lisa’s’ bedroom and touch her under her pyjama’s. She pretended to be asleep: (Form 1).

15. In March 2002 the offender was “playing” with Lisa and again put ice down her swimsuit and fondled her nipples making her feel uncomfortable. Other children were present: (Form 1). The offender had by then assumed parental responsibilities over Lisa.

16. In mid-2002 the offender asked Lisa to go to his bedroom. He pushed her onto his bed. What she at first thought was just ‘mucking around’ led to her being kissed on the lips and the removal of her pants. Williams then had penile vaginal intercourse with her: (Count 6). She was confused by this and believing she had done something wrong did not tell her mother, who was still in a relationship with the offender.

17. Lisa eventually became “infatuated” with the offender. Their sexual relationship continued. When her mother and the offender separated she left her mother and went to live with the offender. Despite this, Williams soon began a relationship with another woman who moved in with them. Although Lisa felt “lost” and “left out” Williams continued to have penile vaginal intercourse with her on at least four occasions. She became pregnant: (Count 7). On 6 September 2002 Lisa had a termination. Police and DOCS became involved. Although officers from both agencies spoke to the offender and cautioned him, no other action was taken.

18. The offender, his adult partner, and Lisa moved to another town but the other woman soon moved out. After Christmas in 2002 or early 2003 the offender approached Lisa in a way that she presumed would lead to penile vaginal intercourse. He, however, pushed her face down onto a bean bag and forced his penis into her anus. He continued this act despite her screams and pleas that he stop: (Count 8). Lisa was then 14.

19. She remained in a ‘relationship’ with him as he supported her financially and she felt that she was in love with him. She thought he was remorseful for the anal intercourse incident and forgave him. In the latter half of 2004 he again had forced penile anal intercourse with her, causing her pain: (Form 1). Penile vaginal sex continued and in December 2006 they had a child. Lisa was then 18, Williams was 35.

20. In mid-2007 Lisa refused Williams’ request for sex as she was “not up to it”. He held her down for a while until she consented to penile vaginal intercourse however after that act the offender rolled her over and despite her screams tried to insert his penis into her anus. She tried her best to stop him but despite her resistance he forced his penis into her anus causing her pain: (Count 9). Although she left Williams soon after, she returned to him for the sake of their child. A second child was born in early 2009.

Maximum penalties

21. Careful attention to the maximum penalty fixed by Parliament is always required. It is a sentencing measure to be balanced with all other relevant factors. They also invite a comparison between the instant case and other cases. That said, it is not appropriate just to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian v The Queen (2005) 228 CLR 357, at [30] and [31].

22. Count 9 carries a standard non-parole period. I am required to give content to that standard non-parole period. In doing so I am required to assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27].

23. In sentencing for an offence, whether or not it is a standard non-parole period offence, a court should make an assessment of the objective gravity of the offence applying general law principles. All factors which bear upon the seriousness of the offence should be taken into account. Not every matter has to be, or can be, fitted into categories. Human behaviour and characteristics are too varied. The sentencing exercise involves: “a synthesis of competing features, which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”: Weininger v The Queen (2003) 212 CLR 629. Ultimately, I must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors relevant to offending behaviour and the offender: Muldrock; Markarian; Hili v The Queen (2010) 242 CLR 520

24. Section 25 AA Crimes (Sentencing Procedure) Act 1999 applies to these proceedings. I must sentence the offender in accordance with the sentencing patterns and practices that apply today, not at the time of the offence.

25. I am not aware that Courts have ever underestimated the trauma sexual abuse causes children. In 1990, 1991, 2002 and 2007 matters such as these were treated seriously, and retributive penalties imposed. Sentencing patterns have changed since last century: penalties for these matters are now more severe. These increased penalties reflect the courts recognition of both the retributive approach signalled by increases in maximum penalties and the standard non-parole period that now apply. There is also a greater understanding of the long-term psychological consequences for the victims and a considered judicial response to changing community attitudes to these crimes: R v MJR (2002) 54 NSWLR 368 at [57].

26. While I am required to comply with s 25AA, I must take guidance from the maximum penalties applicable at the time of offending, not now. Section 25AA does not alter this fundamental common law principle.

27. The correct approach to the fixing of the sentence involves steps set out in MPB v R [2013] NSWCCA 213 at [34] & 35

28. At the relevant times:

• Indecent assault, s 61E(1) Crimes Act 1900 carried a maximum penalty of 4 years imprisonment (Count 1);

• Sexual intercourse without consent, s 61D(1) Crimes Act carried a maximum penalty of 10 years imprisonment (Count 2);

• Sexual intercourse child under 16 years, s 66C(1) Crimes Act carried a maximum penalty of 8 years imprisonment (counts 3 & 5);

• Sexual intercourse without consent child under 16 years, s 61J(1) Crimes Act carried a maximum penalty of 20 years imprisonment (Counts 4, 6 & 8);

• Sexual intercourse child under 16 years and under authority, s 66C(2) Crimes Act carried a maximum penalty of 10 years imprisonment (Count 7); and

• Sexual intercourse without consent, s 66I Crimes Act carried a maximum penalty of 8 years imprisonment, with a standard non parole period 7 years (Count 9).

Guidance

29. While every offence and every offender requires individualised treatment, courts must in the exercise of their undoubted discretion, take guidance from a number of sources. In addition to the maximum penalties and, if applicable, any standard non-parole period prescribed, they include: the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and the need to have proper recognition of the harm done to individual victims and the community

Objective Seriousness child sexual assault

30. There is an absolute prohibition on any sexual activity with a child. The law is strictly enforced and is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity. It follows that every act that involves the sexual interference with a child is serious and is treated seriously by the courts. The guidance offered by the maximum penalties makes that clear.

31. The actual character of the assault, including the degree of physical contact involved, is of considerable significance in assessing the objective seriousness of indecent assaults against children

32. In assessing the objective seriousness of individual matters:

1. The act or acts done.

2. While the form of penile penetration is not determinative of the seriousness, the character of the sexual assaults, including the extent and degree of physical contact involved in the act of penetration, is very relevant.

3. The nature of any penetration of the child's genitalia.

4. The time over which the act occurred.

5. Whether the acts of intercourse were accompanied or associated with other physical violence.

6. The age difference between the perpetrator and the child.

7. The age of the child relative to the range encompassed by the offence is also relevant.

8. The relationship of the perpetrator to the child.

9. The impact on the child of unprotected sexual activity such as disease or pregnancy; and whether that pregnancy resulted in a termination or childbirth.

10. Whether the charged acts are isolated incidents or part of a course of conduct.

Assessment of objective seriousness

33. Count 1 involved skin on skin penile contact. Force was used. The offender was 5 years older than his brother. He ejaculated. It was a serious example of this type of offence.

34. Count 2 involved an act of forced anal intercourse on a boy of 11 by his 19 year old brother, to ejaculation. It caused immediate pain and later bleeding. The act was accompanied by assaults. It was a serious example of this type of offence.

35. Count 3 involved penile vaginal intercourse with a child of 12 who had no real idea what was being done to her. Although brief, the act was painful. The age of the child and the grooming that led up to it make it too serious an example of this type of offence.

36. Count 4 involved an act of forced anal intercourse on a girl of 12 by a young adult. It caused pain and continued despite the child’s pleas that it stop. It too was a serious example of this type of offence.

37. Count 5 involved penile vaginal intercourse with a child of 12 or 13. It was by then part of a course of regular conduct involving the offender’s sexual exploitation of the child.

38. Count 6 was preceded by the then 33 year old offender’s grooming of a 13 year old child by accustoming her to his touching of her (the Form 1 matters, which should not be double counted). The act of penile vaginal intercourse exploited the child’s confusion.

39. Count 7 followed on from what had become a course of regular conduct involving the offender’s sexual exploitation of the child. An element of the offending is that by then the offender had some authority over the child who was living with her mother in the house they all shared. The act for sentence led to a pregnancy and a termination. All those matters make it a serious example of this type of offence.

33. Count 8 involved an act of penile anal intercourse that exploited the relationship the adult offender had fostered with a 14 year old child. It caused her pain and continued despite her screams that he stop.

34. Count 9 involved another act of penile anal intercourse that exploited the relationship the adult offender had fostered with the complainant who by then was the mother of his child. It caused her pain. Force was used to subdue her.

Victims Impact Statement

42. Behavioural responses to child sexual abuse vary; no unique set of behavioural constellations have been identified. Responses vary because of the diversity of abuse experiences. A sentencing court must recognise that all forms of child maltreatment present significant risks for later physical and emotional well-being. Any sexual interference with a child can lead to developmentally inappropriate and dysfunctional interpersonal relations, feelings of betrayal of trust, powerlessness, guilt and shame about the experience. Significant longer term effects have also been identified: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, Impacts, Volume 3, pages 9 - 11.

43. Each complainant prepared a Victim Impact Statement that was read in open court by them or me. A Victim Impact Statement received and considered by a court must relate to “any personal harm” suffered by the victim as a direct result of the offence: s 26 & 28 Crimes (Sentencing Procedure) Act 1999. While I will take into account the undoubted harm that the offender caused there were, with respect, matters raised in the Victim Impact Statements that went beyond what is allowed, which I cannot consider.

44. George told me of how he had struggled to get anyone to listen to his complaints for many years. Although he knows it was not his fault and he did what he could, he still blames himself for not acting in a way that might have protected Susan. The crimes committed by the offender “stole” his innocence and have had a lasting and detrimental impact on his life. Now, he himself is a father and he has battled his demons including drug addiction for decades.

45. Susan spoke of how much had been taken from her from the age of 12. She was exposed to “unforgivable” sexual exploitation that took away her “pride, innocence, voice, trust and dignity.” She still has problems with intimacy and trust in relationships, and has been treated for Post-Traumatic Stress Disorder, anxiety and panic attacks. She fears she will carry the trauma forever.

46. Lisa found it hard to fully explain the impact the offender had on her life from when he commenced first touching her and progressed to her having his children. She spoke of the grooming and coercion and the lies she was made to tell so he could protect himself and continue his sexual assaults on her. She lost the opportunity to live a normal teenage life. She lost her youth and the opportunities of youth. She still suffers anxiety and depression, for which she takes medication.

Forms 1

47. As should be clear from this judgement, in all the circumstances it is appropriate that I take those matters into account when sentencing for the counts to which they refer.

48. The matters on each Form 1 do operate to increase the sentence that would otherwise be appropriate. The increases operate to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 (2002) 56 NSWLR 146 at [39] – [42]. I do not impose a separate penalty for the Form 1 offences. Rather, in determining the appropriate penalty for the offence for which the offender is convicted I take these matters into account as required by the statute as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 [at [51]-[54]; see also Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, per Bathurst CJ at [22].

The plea of guilty

49. The offender’s pleas of guilty came very late, but more than 14 days before the trial date. The pleas did however mean that none of the complainant’s had to give evidence at trial. Each indicated sentence must be reduced by 10% to recognise the utilitarian value of the guilty pleas: s25D(2)(b) Crimes (Sentencing Procedure) Act 1999. Section 25D appears to require very specific reductions and adjustments to give effect to the identified percentages. Meeting requirements for percentage ratios, whilst observing other principles of sentence, is not necessarily a straightforward task: RL v R [2018] NSWCCA 274 at [62]. Here I have rounded down. I do not believe the s25D requires sentences be expressed in weeks or days. Sentencing is not meant to be a mechanical, numerical, arithmetical or rigid activity: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [39], [70] & [133]. This approach follows the pre May 2018 approach where the Court of Criminal Appeal has said that specification of a term in weeks or days was to be “discouraged:” Ruano v R [2011] NSWCCA 149 at [20]; and see Rios v R [2012] NSWCCA 8 at [42]-[43]; Kristensen v R [2018] NSWCCA 189 at [42].

50. I will take care that the benefit of the plea is not eroded by the process of accumulation. While the primary rationale for the amount of discount given is the timing of the plea, it is recognised that in particular cases - especially sexual assault cases and or crimes involving children - there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence: Thompson v R (2000) 49 NSWLR 383 at [3].

Record

51. Born in 1971 Williams has some criminal convictions: the first in 1989 for stealing; the last in 2015 for driving with an illicit drug present in his blood. A further conviction from 2020 was put before me today. Although there are some assault matters, all matters, other than the very recent matter, were disposed of by the imposition of small fines or bonds. There were no sexual matters recorded until 2020. The offending started when he was 19. It continued until he was in his thirties. Although there has been a relatively long period since he committed these offences he was, and is not, a person of good character.

Subjective case

52. I have received a Report from Ms Van de Velde, a Forensic and Clinical psychologist. While a Judge is entitled to be sceptical of opinions unsupported by any factual detail, there is no reason here to doubt the opinions of Ms Van de Velde, as they appear well founded. The report did not uncritically parrot claims by the offender who did not give evidence. To the contrary, Ms Van de Velde’s report reveals how little the offender understands about the impact of his crimes. He still feels he has put himself out for others and that that his actions have not been reciprocated. She notes he appeared to have some difficulty in considering the perspectives of others. I can find no evidence of any real remorse.

53. Williams struggles with literacy. Although he showed no signs of cognitive impairment, he could not give Ms Van De Velde information in a coherent fashion; so that time lines could be established and what he did recall corroborated. He reported a lot of “blanks’ when trying to recall his childhood. He reported a number of matters that could not be verified, particularly relating to abuse of him by older siblings and others. Ms Van de Velde noted that parental non-response to childhood sexual abuse can have an impact on a child and their later development and lead to attitudes and underlying beliefs that that normalise sexually abusive behaviour.

54. While these opinions are well supported by expert opinion and the Report of the recent Royal Commission, the factual foundations for their application to the offender are not. That said, the offender’s own actions display such attitudes and beliefs and as Ms van De Velde suggests must be addressed by treatment if Williams’ risk of re-offending on release is to be minimised.

55. It appears there was some dysfunction in his family and violence was common. Child Services were involved. His father was very “strict.”‘ He has only negative memories of his mother. He reports being raised on a farm where hardship was common. He went to work as a roustabout at 15. He has worked all his life since then. He, most recently, ran a carpet cleaning business for over 20 years. Before his relationship with Lisa he had two children. Lisa bore him two children. After his “relationship” with Lisa ended he was in a relationship with another woman from 2010 to 2019. They have four children. He presently has no contact or any form of relationship with any of his family except his oldest two children, and then only intermittently. His dysfunctional family background is a relevant matter on sentence that must be given some weight: see Bugmy v The Queen [2013] HCA 37; 249 CLR 571

56. Since being charged with these offences he has commenced a mental health care plan for help with depression and anxiety.

Health problems

57. The offender is now 49 years old. He suffers from emphysema, asthma and chronic obstructive pulmonary disease. He has a number of back problems and reports a number of recent heart attacks. He has vision problems that may possibility result from cancer in his eye that is currently under investigation. Not all of these complaints were supported by evidence.

58. He will require close examination and observation by Justice Health, and while he will receive treatment in gaol, he will have no control over what treatments are offered and when he receives them. His access to medications, particularly opioid pain relief, will be limited.

59. While serious offenders generally cannot escape punishment because of the condition of their health, their ill-health can mitigate punishment, particularly where, as here, imprisonment will be a greater burden on them and or carries with it a significant risk. The realities of prison life should not be overlooked in the exercise of the sentencing discretion: R v Burrell (2000) 114 A Crim R 207 at [27].

60. The vicissitudes associated with a gaol term include the vulnerabilities of all prisoners during the COVID pandemic. Williams is additionally vulnerable as he has a lung condition. Should the virus enter our gaols he would not qualify for early release to parole: s276 Crimes (Administration of Sentences) Act 1999.

61. Ill health does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require: Smithv R (1987) 44 SASR 587; R v L, unreported, NSWCCA, 17/6/96.

Delay between offence and sentencing

62. Sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517 at 519. But, as the offender actively took steps to prevent each complainant from disclosing his abuse of them, he cannot benefit from any delay. It appears that for a period he ceased offending without formal intervention. However he appears to have reverted to offending behaviour and has offended again. To date he has escaped justice for decades and has enjoyed a life free from opprobrium or punishment for his crimes during that time: Magnuson v R [2013] NSWCCA 50 at [62]: R v Cattell [2019] NSWCCA 297.

Submissions

63. Mr Khan and Ms Keay, Crown Prosecutor, have provided helpful oral and written submissions. I have considered and addressed them in coming to my determinations as to the appropriate individual and aggregate sentences. I trust this judgment does justice to them.

64. In short summary, Mr Khan put appropriate weight on the objective gravity of each offence and the fact that each complainant was subject to a course of criminal conduct. He drew my attention to periods where there were gaps of years before Williams stared offending again. He submitted that a degree of accumulation was required but that some concurrence was also warranted as the principle of totality required mitigation of the overall punishment. He asked for understanding; as the offender had reported he himself was the victim of child sexual abuse and that violence and dysfunction had been normalised in his family, marring his early development. He noted that Williams is understandably anxious and depressed about his prospects and that he will have no support while he serves his sentence.

65. Ms Keay cautioned against accepting untested evidence about the family history of abuse, but acknowledged the Crown case provided some evidence of dysfunction. She noted that each child was preyed on, had had their normal childhood development seriously disrupted. She asked for proper recognition of the harm done by adults who form sexual “relationships” with children so young; and proper recognition of what each child victim had lost, and the continuing emotional turmoil each suffered. Further, each of the girls was exposed to pregnancy and had terminations; one bore the offender children. She also noted the offender’s coercive efforts to ensure complaints were not made.

Structure of sentence

66. While these matters were proceeding a defended hearing was heard at Nowra Local Court. On 16 December 2020 Williams was convicted of two counts:-

1. Sexually touch another person without consent: s.61KC(a) Crimes Act  and

2. Assault: s 61 Crimes Act.

67. The convictions relate to an incident that occurred on 27 November 2019. The victim, then aged 20, was a friend of Williams’ then partner. Magistrate Fleming sentenced Williams to 18 months imprisonment on each offence. The sentences commenced on 12 July 2020 and will to expire on 11 January 2022. There is a 9 month non parole period. The accused is due to be released on 11 April 2021. Her Honour found special circumstances because of; (i) the age of the accused (ii) his health conditions and (iii) this sentence is his first time in custody. Her Honour took into account a period of pre-sentence custody that relates to this Local Court matter. He entered custody on 29 November 2019 and was released on bail on 12 May 2020.

68. Williams returned to custody on 17 December 2020. In all the circumstances this sentence should start on 12 January 2021, six months after the commencement of the Local Court sentences; which were backdated to take into account time served on remand. One of those circumstances is the principle of totality.

69. Here, I must sentence for distinct offences committed against three complainants all of whom suffered serious but different consequences. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender’s crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63. There must be some accumulation of penalty. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending. This is particularly so where the offences are discrete and separate: R v MAK [2006] NSWCCA 381 at [18].

70. The totality principle also recognises that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing. The severity of a sentence is not simply linear. The severity of a sentence may increase at a greater rate than an increase in the length of a sentence. For example; a sentence of two years has greater impact than one so far as the punitive aspects of a sentence is concerned: R v Clinch (1994) 72 A Crim R 301 at 306, approved in MAK v R [2006] NSWCCA 381.

Synthesis

71. Sentences and the reasons for them should be as transparent as possible. Everyone; whether victim, offender, court or community should know why a specific sentence was imposed. That said, sentences require intuitive judgments be made. Different factors require different considerations- every offender and every sentencing exercise has it individual features. Pragmatic decisions need to be made and the perspectives of both the victim and or community and the offender taken into account.

72. When sentencing for multiple offences, the nature of the charges may compel concurrency; on the other hand, particularly where the offences are separated in time and or relate to multiple victims, accumulation is required. However, care must then be taken to ensure that that the accumulation of a number of lengthy periods of imprisonment does not result in a disproportionate level of punishment. As Basten JA points out in DPP (C’th) v Beattie [2017] NSWCCA 301 at [26]-[45], what is a proportionate sentence or what might be seen as a “crushing” sentence can depend on the perspective of the observer; whether they are a victim, community, appeal court or offender.

73. If the offender does not engage in the treatment regime recommend by Ms Van de Velde, his prospects for rehabilitation are not good. Although his offending began when he was young and still immature he has continued to offend again and again without concern for the harm his actions have caused each of his victims. He will, however, be released into the community. He must be monitored and supervised for as long as possible in the community. However here the length of the sentence means that that only the accumulation of this sentence on that imposed in the Local Court requires a modest adjustment of the non-parole period to reflect special circumstances.

74. The minimum time he must spend in custody must properly reflect the seriousness of his crimes. The sentences must, so far as is possible, seek to vindicate the dignity of each complainant, express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of such offending: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38.

Orders

Indicated sentences

• Count 1: Indicate a sentence of 1 year 9 months

• Count 2 (with Form 1): Indicate a sentence of 3 years 7 months

• Count 3: Indicate a sentence of 4 years 6 months.

• Count 4 (with Form 1): Indicate a sentence of 3 years 7 months

• Count 5 (with Form 1): Indicate a sentence of 4 years 6 months

• Count 6 (with Form 1): Indicate a sentence of 5 years 4 months

• Count 7: Indicate a sentence of 5 years 4 months

• Count 8 (with Form 1): Indicate a sentence of 4 years 6 months

• Count 9 (SNPP): Indicate a sentence of 4 years 6 months - non parole period 4 years

Aggregate sentence

75. The total aggregate sentence is 13 years 6 months. There will be a non-parole period of 10 years commencing 12 January 2021 and expiring 11 January 2031. The balance of the sentence of 3 years 6 months is to commence upon the expiration of the non-parole period on 12 January 2031, and expiring on 11 July 2034.

76. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 11 January 2031.

77. A copy of Ms Van de Velde’s report is to accompany the warrant

78. A Crimes (High Risk Offenders) Act 2006 caution was given

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Decision last updated: 11 February 2021