R v Winfield (a pseudonym)

[2024] NSWDC 656

District Court

New South Wales

Medium Neutral Citation:

R v Winfield (a pseudonym) [2024] NSWDC 656

Hearing dates:

16 December 2024

Date of orders:

16 December 2024

Decision date:

16 December 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of imprisonment of 12 years with a non-parole period of 8 years

Catchwords:

CRIME — Child sex offences — Persistent sexual abuse of a child pursuant to s 66EA — Maintaining an unlawful sexual relationship with a child —

— Film person in private act — Circumstances of aggravation — Under authority

SENTENCING — Mitigating factors — Prior good character — No record of previous convictions

SENTENCING — Imprisonment

SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Moral culpability — Objective seriousness — What is a ‘crushing’ sentence — Special circumstances — Multiple offences — Totality

SENTENCING — Subjective considerations on sentence — Indigenous offender — Mental disorders — Alcohol addiction — Childhood sexual abuse — Childhood trauma

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Cahyadi v R [2007] NSWCCA 1

Clarkson v The Queen [2011] VSCA 152

Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Director of Public Prosecutions v DJK [2003] VSCA 109

Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346

MAK v R; R v MSK [2006] NSWCCA 381

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

Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59

MK v R; RB v R [2023] NSWCCA 180

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Clinch (1994) 72 A Crim R 301

R v Fisher [2024] NSWCCA 191

R v Gavel [2014] NSWCCA 56

R v Holder; R v Johnston [1983] 3 NSWLR 245

R v RB [2022] NSWCCA 142

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Tuala [2015] NSWCCA 8

R v Van Ryn [2016] NSWCCA 1

RA v R [2024] NSWCCA 14

The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Texts Cited:

W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497

Category:

Sentence

Parties:

Derrick Winfield (a pseudonym)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
J Hopper (for the offender)
C Triscari (for the Crown)
T Hennessy (for the Crown)

Solicitors:
George Sten and Co Criminal Lawyers (for the offender)
Public Prosecutions (NSW) (Crown)

File Number(s):

2022/237387

Publication restriction:

Pseudonyms have been used for the names of the offender and the child victims. Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statute.

JUDGMENT – ex tempore revised

1. As this matter has been in the list for a long time and a number of people have gathered today to hear the result, I do not think it is fair on anyone that I adjourn further. I will proceed to sentence immediately.

Introduction

2. On 30 July 2024 after a five-day trial a jury at Wollongong District Court found Derrick Winfield (a pseudonym) guilty of two counts of maintaining an unlawful sexual relationship with a child. The offences relate to his daughters, Zara, and Hannah (pseudonyms). The acts relating to Zara occurred between 2013 and 2021 when she was aged between eight and 16: Crimes Act 1900 (NSW), s 66EA(1). The allegations relating to Hannah, occurred between 2008 and 2017, when she was aged seven to 16: Crimes Act, s 66EA(1).

3. The jury also found Winfield guilty of one count of filming Zara while she was engaged in a private act: Crimes Act, s 91K(3). That offence occurred in 2016 or 2017. It carries a maximum penalty of 5 years imprisonment.

4. The law allows for multiple allegations by a complainant to be put or ‘rolled up’ into one single unlawful sexual relationship offence count. Given the way the trial was run and the verdicts that were returned it is obvious that jury accepted the evidence of both Zara and Hannah. It is equally obvious that the jury must have rejected Winfield’s denials of the alleged sexual activity. It is however, notable that in his evidence he conceded some sexual touching of Zara; albeit when she was older than the date set out in the counts. He also denied any sexual interest in her. Those denials flew in the face of, and contrary to, his actions and admissions in letters, texts and a telephone call.

5. Other counts in the indictment, particularised numerous acts which were charged as alternative counts. No verdicts were taken on those counts given the guilty verdicts in Counts 1 and 15. I note I am obliged to have regard to the maximum penalties available for the discrete offences that found the unlawful sexual relationship: Crimes Act, s 66E(a)(8).

6. The jury found Winfield not guilty of two other counts relating to Zara: Counts 13 and 14. He must have the full benefit of those acquittals. Those counts made specific allegations that required proof of matters that did not involve a determination about, or the assessment of, the complainant’s credibility. That the jury gave Winfield the benefit of the doubts available on the evidence did not undermine the evidence she gave.

Facts for sentence

7. The jury obviously accepted the evidence of Zara and Hannah. I too was satisfied beyond reasonable doubt by the evidence of each complainant. Their evidence was clear. I had no difficulty accepting what they said.

8. A fair summary of the evidence in relation to each specific allegation was provided in the Crown’s sentencing submissions. I have used them in this judgment.

9. I must sentence Winfield for all of the behaviour that made up each proved unlawful sexual relationship. In doing so, I need to address the nature and extent of his offending. It is important I refer to the specified conduct, the subject of the individual counts, as it constituted the bulk of the evidence at trial. The specific unlawful sexual acts upon which the prosecution relied at trial illustrate the nature of the unlawful relationships. There was also evidence of other uncharged acts. They too must be considered. However, sentencing for maintaining unlawful sexual relationship offences is not the same as sentencing for the course of conduct as alleged in specific matters had they crystallised into convictions for representative offences: R v Fisher [2024] NSWCCA 191 at [114].

10. While I do not need to determine specifically the number of discrete offences, it is helpful to have regard to the general evidence that was given at trial by both complainants. The difficulty of the sentencing task however can be illustrated by using Hannah’s evidence at Tcpt, 26 July 2024, pp 174-176. She gave evidence that incidents involving some form of digital penetration or touching of the vaginal area occurred multiple times. For example:

A: “[He would] frequently come into the bedroom … when I was sleeping, and I would wake to him touching me … on my vagina.

Q: Over the clothes or under the clothes?

A: Over the clothes.”: Tcpt, 26 July 2024, p 174.

11. She also said, “There were a couple of times where he would insert his fingers part way into my vagina” and these occurred between the ages of “seven and 13” and would occur “one or twice a month”. She said it usually happened when her “sister was at sleepover.”: Tcpt, 26 July 2024, pp 175-176.

12. It is important in a maintain unlawful relationship matter that I focus on the evidence relating to the unlawful relationship, not necessarily, as the Crown initially suggested, on each act. Nor should I then make some mathematic calculation based on the number of acts over a period of 7 to 13 years. It is the nature of the relationship that I have to focus on, not the specific acts. That is why this particular sentencing exercise is difficult.

13. So far as each child is concerned, it is clear, on the evidence before me, that there were regular instances when the offender came into the room where they slept and touched them on the vagina. Some of those touches were outside the clothes, some involved some digital penetration, and one at least, involved, so far as Hannah is concerned, pain.

14. These acts occurred in their home, where they were entitled to feel comfortable. Each act involves a gross abuse of trust. Each involved a father who was obliged to care for and protect, breaching that solemn obligation to his children. The Crown helpfully summarised it in this way – the threat from their father of being touched at night while they slept was omnipresent and a significant factor in the relationship that developed. That relationship developed as the two children grew older – from six or seven to when they were 16.

15. Each of the acts against his children were associated with the offender being intoxicated. The evidence before me is that he was often at home, and he was often intoxicated. His state of his intoxication does not, and cannot, excuse what he did.

16. It would seem from all the material before me that from the start of the relationship the acts changed over time. What occurred, entry to the bedroom touching on the vaginal area and acts of penetration, appeared to escalate as the two children got older.

17. I accept the Crown’s submission that my findings must be approached in a wholistic way in accordance with the instinctive synthesis approach to sentencing. The nature and seriousness of the sexual acts has to be considered, but it has to be considered in the context of the unlawful relationship.

Facts for sentence – Zara

18. The offence against Zara occurred between 2013 and 2021 when she was aged between 8 and 16 years. At those times the family lived together in a home in greater Wollongong. From when Zara was nine years old, she would wake to the offender touching her vagina, both over the top and underneath, her clothing. Instances of her waking up from sleep to the offender touching her vagina, were, she said, “Too many to count.”: Tcpt, 25 July 2024, p 49.

19. Those events became more frequent after she was 13 or older. When she was older, she had moved out of the family home and was sharing a house with her father. She said he would touch her on the genitals as well as her “breasts and arse” and it happened more than once: Tcpt, 25 July 2024, p 53.

20. She said, he would rub her legs and on more than one occasion he would put his fingers inside her vagina. She just did not know how many times. He also spoke to her about sexual matters and admitted his sexual interest in her. Examples are given in the specific charges that were laid:

• When she was nine years old, she gave evidence that he would touch her breasts and vagina over her nightie, when she was alone with him watching a movie.

• On one occasion he waved his penis over her head and shoulders. She was forced to her knees. He presented his penis to her and asked her to suck it.

• He would go into her room at night and touch her vagina over her clothing.

• He would let her see him masturbating while he was in in the lounge room.

• He would penetrate her vagina with his fingers. One instance caused her pain.

• He would walk in on her when she was in the bathroom.

• Later when they moved to another home, she would wake to find him licking her vagina through her underwear.

• She would also wake to find him touching her.

• She recalls a time when he came home drunk from the pub. He touched her vagina and called out her mother’s name.

• Another incident occurred while he was massaging her after football training. His fingers went up her leg and inside her vagina.

Facts for sentence – Hannah

21. The incidents in relation to Hannah occurred between 2008 and 2017, at the family home before the family separated, when she was aged seven to 16. Most of the activity that she recalled started when she was 11:

• She gave evidence of him coming into her bedroom and touching her regularly.

• She specified a particular incident she remembered when they went for a walk together. His behaviour towards her was specifically sexual. It included pulling her on to his lap where she felt, as she later realised, his erection. He requested that she “practice” kissing him. He touched her on the genitals on the outside of her clothing when he was pushing her on a swing.

• On other occasions would come home drunk, and in one example that was given, he asked her to “suck him off”.

• Another example of his behaviour towards her was his yelling out, “I’ve got something for you to do” and asking her to come into the bedroom where he was naked on his bed.

• She also gave evidence of an instance where he, placing his hands on her genitals, over her underwear and then penetrated her vagina causing her pain. This act seemed to have been more towards the end of that relationship.

22. These are only some of many instances that formulated the relationship. It would seem on all the facts I accept that the offender then transferred his affections from Hannah to the younger child, Zara.

Assessing objective seriousness – Maintain a sexual relationship with a child

23. An offender maintains a sexual relationship if there is a course of sexual activity involving successive acts committed frequently enough to provide the element of connection and continuity so coherent that the sexual activity can be seen to be maintained. The gravamen of the offence is the maintenance of the unlawful sexual relationship not the identified “ingredient offences”: R v RB [2022] NSWCCA 142 at [54]; RA v R [2024] NSWCCA 14. While I have referred to the individual charged acts, they do not determine this sentencing exercise. This sentencing exercise is different to sentencing for the same course as conduct; as the Court of Criminal Appeal made clear in Fisher.

24. One reason for the high maximum penalties available is this – every act that involves the sexual exploitation of a child is serious. The absolute prohibition of sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v The Queen [2011] VSCA 152; R v Gavel [2014] NSWCCA 56; R v Van Ryn [2016] NSWCCA 1.

25. When I come to consider the objective seriousness, so far as Zara is concerned, I also have regard to:

• The length of time over which the relationship occurred;

• Their relative ages;

• The position of trust and authority that a parent has over a child;

• The acts occurred on a regular basis; and

• The acts become more serious over time.

26. I also have regard to the nature of and type of sexual acts. But as the Crown made clear, and I accept, it the sexual relationship that is critical.

27. So far as Hannah is concerned all those factors are equally relevant. She spoke in more general terms about the nature, number and frequency of the acts. It appears as she got older the offender put less focus on his sexual relationship with her than with her sister, Zara. That there were not as many acts and his contact with her was less direct; requiring some modest differential when it comes to the actual penalties that must be indicated.

Victim impact

28. Hannah did not prepare a Victim Impact Statement. The absence of that statement does not give rise to any inference that the offence has no impact on her: Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(5).

29. Zara started to read her Victim Impact Statement today. She asked her counsellor to finish reading it, as she, understandably, found reading it too upsetting. In her statement, she said she was unsure of how to answer the question – how the abuse affected her wellbeing? She was “unsure” because she has had to live with this abuse for a significant portion of her life. She now grieves for the child and adult she could have been without the abuse. She says people have called her “strong and resilient”, but she does not “feel that way”. She still feels like the young child who was “groomed” and “abused”.

30. She said she was a “confused child” as a consequence of the indignities that I have briefly summarised and which she had to give evidence about. Others, she said, do not see the terrified child in the adult now before them. She says she “sees [that child] every day”. She spoke of the “enormous amount of pain” that she suffers, pain “that words cannot express”.

31. She is to be commended for coming forward and speaking up. But she makes this important point; speaking up did not make her stronger. What happened to her did not make her stronger. She made herself stronger, it had nothing to do with the offender or his abuse. She concluded:

“I am the person I am today no thanks to you. I am the person today because of me. You do not get any credit for how strong and resilient people perceive me as because that was all me. I will never forgive you and I will never forget. You put me through the impossible dad. I will forever speak up about the abuse you put me through.”

32. She spoke up. She was believed by police, those investigating the matter, and most particularly, by the jury.

33. Zara’s statement draws to the offender’s, the Court’s and the community’s attention the damage that can be caused by offences such as this. It attests to the kind of harm that one might expect from an offence of such seriousness. There is no difficulty in accepting its contents: R v Tuala [2015] NSWCCA 8.

34. A Victim Impact Statement provides an opportunity for someone whose lives were altered by serious criminal behaviour that draw to the Court’s attention, but more particularly the community’s attention, the damage that can be done by offences such as this. For practical purposes it is the only way a person, a victim, can speak up: Director of Public Prosecutions v DJK [2003] VSCA 109 at [17]-[18].

35. The term ‘victim’ is sometimes used, but it would be wrong if anyone used that term in pejorative sense. In evidence at trial, each child indicated that they felt some guilt, shame or blame for what occurred. They should not. Each complainant is a survivor of a serious sexual crime. Both came forward to expose what was done to them, and each is to be commended for doing so. They did nothing wrong.

36. The diversity of abuse experiences means that outcomes will vary and be diverse. Sadly, what was revealed is all too typical of the serious impact of such offending.

Maximum penalties

37. I have regard to the maximum penalty here:

• Maintain unlawful sexual relations: life imprisonment; and

• Film a person in a private act under authority: 5 years.

38. I must pay careful attention to the maximum fixed by Parliament. I note that the penalty was increased to reflect Parliament’s view about the seriousness of such matters. That said, it is not appropriate to start with the maximum and then make proportional deductions from it: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [30]-[31].

39. I have to have regard to the statutory obligation, the maximum penalties that were available for offences that were particularised so far as the fundamental charge is concerned: Crimes Act, s 66EA(1).

• Intercourse with a child under 10, had a maximum penalty since 2015 of life imprisonment, prior to that it was 20 years.

• Sexual intercourse with a child under 10 years, s 66B Crimes Act had a maximum penalty of 25 years and there was a standard non-parole period for a period until 2015.

• Aggravated sexual intercourse with a child between 10 and 14 under authority, s 66(2), had a maximum penalty of 20 years and a standard non-parole period of 9 years was added in 2015.

• Aggravated indecent assault from 1992 had the maximum penalty of 7 years. There was no standard non-parole period until 2015. Aggravated sexual touching, s 61K(d) Crimes Act, had a maximum penalty of 7 years and a disproportionate standard non-parole period of 5 years.

• An aggregated indecency on a person under 16, s 61I Crimes Act, had a maximum penalty of 5 years.

40. While as is obvious, those penalties must be considered, they are one of many guides to the exercise for my sentencing discretion. I note the remarks of Justice Rigg when she was asked to formulate the sentence in R v Fisher at par [127]:

“In light of the significant number of occasions of sexual abuse … the particular maximum penalty for an individual unlawful sexual act is not important.”

Subjective case

41. Winfield was born in 1979. He has no criminal record. It is not suggested his otherwise good character was of assistance in committing these offences. The Common Law, and now s 21A(3)(f) Crimes (Sentencing Procedure) Act, make clear that I can take prior good character into account in mitigation of sentence. However, there are classes of cases where good character can carry less weight as they can be committed by a person of otherwise good character. They can include child sexual offences. And as is obvious he lost his otherwise good character the minute he started offending against his daughters.

42. I have the benefit of a comprehensive report from Dr Pusey. I have a letter from the offender. I have evidence that he has engaged in courses in custody. In his letter, Exhibit 1, he accepts that he offended against Zara in a “disgusting and filthy” manner while he thought she was asleep. He said: “She deserved better than to live with a monster like me.” He says to her: “I have no explanation for you at all and can only hope that you find the strength. You are a good person with a massive heart.” He says: “I truly didn’t mean to hurt you … .”

43. That expression of sexual interest and his admissions were led at trial, but he denied each of the offences that led to his convictions. He is not to be punished for that, but does not to get the benefit often given to those who admit their guilt and spare complainant’s the ordeal of giving evidence, recounting what was done to them and being tested on that evidence. I do not read into anything tendered on his behaviour, as showing any remorse for the offences he committed. At best he shows some limited insight into his behaviour.

44. His background is set out by Dr Pusey. It is relatively uncontroversial. I can have regard to it even though he did not give evidence on oath. It reveals a number of matters that are important.

45. He is a father of five, including the two complainants in this matter. He is proud of his indigenous heritage. His background however was marred by instability although he did achieve some things in primary school. He left school early and obtained an apprenticeship. He was not particularly good at business. He took up the use of cannabis, and particularly alcohol, when too young to make rational decisions. It appears that until he went into custody on his arrest in August 2022, that he was a regular and serious drinker.

46. He has stopped using tobacco while in custody. He has stopped drinking, with the help of the Buvidal Drug Replacement Program. Obviously, his resolve not to abuse alcohol has not been tested in the community.

47. He reports an instance where he was sexually abused as a child, and he reports some disruption to his childhood. Dr Pusey notes a significant number of adverse child experiences, frequent relocations during childhood and adolescence, problems with his mother and stepfather. He was regularly exposed to illicit drugs and domestic violence and experienced an episode of sexual abuse. In Dr Pusey’s opinion, antisocial behaviours became normalised.

48. Dr Pusey’s opinion is that critical to any rehabilitation is Winfield’s cessation of the use of alcohol and his need to gain some insight how alcohol has formed most of his life. Dr Pusey notes some symptoms of Post-Traumatic Stress Disorder, possibly Complex Post-Traumatic Stress Disorder. He recommends further mental health assessments.

49. Dr Pusey notes that despite Winfield’s denials, a diagnosis of a paedophilic disorder must be considered. He notes at par [107] of his report:

“[Winfield] demonstrated an extremely limited degree of insight into the causal mechanisms relating to his offending. This may be a function of the impact of his present mental health pathology and his cognitive processing, or which may reflect the presence of antisocial cognitions and their influence on his actions and his ability to understand them.”

50. Dr Pusey notes the static and dynamic factors that might influence Windfield’s prospects for the future. In her opinion; with assistance, monitoring and intervention his risk of recidivism is “low to very low” but much will depend on meaningful engagement with psychological treatments both in custody and on release.

51. He will need further mental health assessments. He will need help addressing historical traumas and the influence they have had upon him. Prior to his release he will need to learn to cope without resort to alcohol use.

52. He should be referred to the CUBIT Program. On release to the community, he may need further engagement with sexual offender treatment. I will have a copy of that report sent with the warrant.

Alcohol

53. There seems to be a clear link between the offender’s alcohol abuse and his offending, but that does not excuse what he did. At best it gives me some insight into the person to be sentenced and what can be done to create a situation where he is less likely to offend on release. His history and personal history and background are important because others should appreciate that that background meant that he is less capable than people who are not so disadvantaged in his capacity to deal with alcohol and abuse of alcohol or control his conduct: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273].

54. This does not mean he bears no moral responsibility for his crime, far from it, but his moral culpability or blameworthiness were impacted upon by his childhood and various traumas he suffered, including as a victim of sexual assault, and the disorders that he suffers from. Those matters should be given appropriate weight. They had an impact on his development of prosocial values. He did not develop a moral compass. And his ability to act on what moral compass he had, was significantly impacted upon by his alcohol use. At the same time, each of the decisions he made was a considered decision and he must be punished for them.

Totality

55. I have to sentence to two serious offences committed against two young women. I have to sentence for the s 91K matter. I have to impose an appropriate sentence for each offence and structure the sentences, so the overall criminality is just and appropriate to his offending behaviour: Mill v The Queen [1998] HCA 70; (1988) 166 CLR 59 at [62]-[63]; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295; Cahyadi v R [2007] NSWCCA 1.

56. The fact that there were two child victims, his two daughters, means that there must be some independent punishment for each. But I do not simply add up all of the sentences. There are matters in relation to both of them that overlap. Sentencing is not simply linear. The severity of a sentence may increase at a greater rate than the length of a sentence. A sentence of 10 years would have significantly more impact than a sentence of 5 years, for example: R v Clinch (1994) 72 A Crim R 301 at [306] approved in MAK v R; R v MSK [2006] NSWCCA 381.

57. An ultimate aggregate sentence should not exceed what is called for in all the circumstances: R v Holder; R v Johnston [1983] 3 NSWLR 245 at [260] (Street CJ); Van Ryn at [228]-[230].

58. Clearly a lengthy aggregate sentence has to be imposed here. That sentence should not ‘crush’ all hopes of productive life after release: MAK v R; R v MSK [2006] NSWCCA 381; Clinch at [306]. There is a danger with any lengthy sentence that a person, particularly someone who has never been put in custody before, will become institutionalised. There is a danger that Winfield may lose motivation and fail to engage in rehabilitation programs and sex offender programs. What is proportionate however may well depend on the observer, whether they are the offender, the victim or the community: Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [26]-[45] (Basten JA).

Special circumstances

59. Ms Hopper, who appeared at sentence and the trial, asks that I vary the statutory ratio to provide for a longer period on parole than what would flow from its usual application. She submits that the longer Winfield is supervised in the community and monitored in the community the greater chances are of his progress towards rehabilitation, that is not reoffending against others. He will need assistance in adapting to normal community life on release. He will need constant monitoring of his alcohol use. Both provide a basis for some modest variation in the ratio between parole period and non-parole period. But the minimum term he must be held in gaol must properly reflect what he did and the objective seriousness of his crimes: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

60. It is important to note that those who are supervised on parole are generally less likely to reoffend than those who are not: W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497.

Other cases

61. I have been referred to the recent case of R v Fisher and MK v R; RB v R [2023] NSWCCA 180. There are not many cases under the new legislation to which I can refer.

62. In the written submissions, suggestions were made as where on some notional scale this matter should fall. In discussion, it was made clear that that might be of some guidance but there is always a danger in looking to the penalties for discrete offences and attempting to assess by reference to some notional scale where a matter might fall. In some respects, this matter, in terms of the acts, may be regarded as less serious than Fisher. In other respects, the nature of the relationship between the victims and perpetrators makes it more serious.

63. I am sentencing Winfield not Mr Fisher. I have to assess this case by reference to all the material before me. There is no pattern of past sentences to guide the exercise of my discretion. Each sentence for matters such as this requires individual consideration both of the acts and the offender; sentencing, being the discretionary judgment, the mix of factors that must be synthesised and weighed is different in each case: The Queen v Pham [2015] HCA 39 at [47].

Synthesis

64. The written submissions provided to me were comprehensive and particularly helpful. They were supplemented by succinct but helpful oral submissions. They have guided this judgment. Ultimately, I have to synthesise an appropriate penalty to be indicated for each offence. I then have to fix upon a total term that takes into account all relevant matters.

65. Foremost is the seriousness of what occurred and my assessment of that seriousness. Equally important is the need to vindicate the dignity of the two complainants in this matter; women who came forward and whose testimony was accepted by the jury and accepted by me. They cannot, and should not, measure the harm they suffered against the actual penalty that is imposed. The correlation between the two is impossible because a court has to take into account a large number of matters all of which must be synthesised in the ultimate sentence.

Orders

66. In doing so:

• In relation to Count 1: I indicate a sentence of 9 years imprisonment.

• In relation to Count 12: I indicate a sentence of 1 year imprisonment.

• In relation to Count 15: I indicate a sentence of 8 years imprisonment.

67. There will be an aggregate sentence of 12 years imprisonment. That sentence will commence on 12 August 2022. There will be a non-parole period of 8 years, which means that the offender will be eligible for consideration to release to parole on 11 August 2030. There will be a parole period of 4 years reflecting a finding of special circumstances; which means that the total sentence will expire on 11 August 2034.

High Risk Offender warning

68. Mr Winfield, I have to advise you (and your lawyers will give you more advice) that you are now classified as a high-risk offender. If you do not cooperate with authorities while you are serving your term:

1. You may not be released to parole when you become eligible to release to parole; and

2. It is possible that on release additional conditions might be placed upon you, or your release delayed following the expiry of the 12-year sentence I have imposed upon you.

69. You will also be subject to sex offender registration. You are advised that if you fail to comply with the conditions of that registration, you could be returned to custody.

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Decision last updated: 13 March 2025