R v WM

[2023] NSWDC 138

District Court

New South Wales

Medium Neutral Citation:

R v WM [2023] NSWDC 138

Hearing dates:

14 April 2023

Date of orders:

5 May 2023

Decision date:

05 May 2023

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Sentenced – see paragraphs [57]-[62]

Catchwords:

CRIMES – sexual offences – sexual intercourse with child under 10 – indecent assault on child under 16

SENTENCING – sentence after trial by jury – plea of not guilty

SENTENCING – facts – victim was grandchild of offender – offences part of one ongoing episode of offending

Legislation Cited:

Crimes Act, 1900

Crimes (Sentencing Procedure) Act

Cases Cited:

Bugmy v The Queen [2013] HCA 37

Burchell (1987) 34 A Crim R 148

Chamseddine v R [2017] NSWCCA 176

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Jolly v R [2013] NSWCCA 76

Maxwell v R [2020] NSWCCA 94

MC v R [2017] NSWCCA 316

R v AA [2017] NSWCCA 84

R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434

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

R v Muldoon unrep. NSWCCA 13.12.1990

R v Naderi [2022] NSWDC 534

R v PMG [2006] NSWCCA 310

R v Storey is reported at [1998] 1 VR 359

R v Van Ryn [2016] NSWCCA 1

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Category:

Sentence

Parties:

Rex
WM

Representation:

Counsel:
Mr P Kerr (for the Crown)
Mr D Stewart (for the Offender)

File Number(s):

2021/186643

Publication restriction:

No publication of the names of the complainant or anything that would tend to identify them.

REMARKS ON SENTENCE

1. The offender stood for trial at the Wagga Wagga District Court on 21 February 2023. The indictment was amended by consent on 23 February 2023. On 2 March 2023 the offender was found guilty by the jury that he:

1. Between 1 January 2013 and 31 August 2013 at Narrandera in the State of New South Wales, did assault TM, a child then under the age of 16 years, namely 4 or 5 years and at the time of the assault did commit an act of indecency upon TM, contrary to s 61M(2) of the Crimes Act, 1900, and further

2. Between 1 January 2013 and 31 August 2013 at Narrandera in the State of New South Wales, did have sexual intercourse with TM a child then under the age of 10 years, namely 4 or 5 years, contrary to s 66A(1) of the Crimes Act, and further

3. Between 1 January 2013 and 31 August 2013 at Narrandera in the State of New South Wales, did have sexual intercourse with TM a child then under the age of 10 years, namely 4 or 5 years, contrary to s 66A(1) of the Crimes Act.

2. As the matter was defended there can be no discount or consideration for any plea of guilty. That is not to say that the penalty is in any way increased because the offender put the Crown to proof, rather there can be no discount or consideration for a plea of guilty

3. The maximum penalty for the Aggravated Indecent Assault offence is 10 years imprisonment. Parliament has specified a standard non-parole period of 8 years in respect of this offence. The ratio between the maximum penalty and the standard non-parole period has been the subject of comment. The maximum penalty for counts 2 and 3 on the indictment, i.e. Sexual Intercourse with a Child Under 10 years, was at the relevant time 25 years. A standard non-parole period of 15 years applies to those offences.

Facts

4. As the matter relates to a trial by jury it will be necessary for me to determine the facts for the purpose of sentence. On the issue of fact finding after a jury verdict for the purpose of sentence, Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 27 said:

“As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey[15] - that a sentencing judge

‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.’"

R v Storey is reported at [1998] 1 VR 359.

5. There is of course the more recent decision of Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. In that decision French CJ, Bell, Keane & Nettle JJ said at [64]:

“But, as was established in R v Olbrich, a sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known. As was stated by the majority in Olbrich:

‘[W]e reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.’"

6. Their Honours went on to say at [70]:

“Certainly, a sentencing judge must do his or her best to find the facts which determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability. Even so, it is sometimes not possible for the judge to ascertain everything which is relevant, especially where an offender chooses not to offer any evidence on the plea. Where that occurs, the judge must proceed on the basis of what is proved and leave to one side what is not proved to the requisite standard. As was stated in Weininger v The Queen:

‘The sentencing judge may not be able to make findings about all matters that may go to describe [the] circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.’

That accords with the requirements in s 21A(1) of the Sentencing Act that facts be taken into account only in so far as they are ‘known to the court’ according to the principles of proof laid down in Olbrich.”

7. However, fortunately in this matter there is no real dispute about the facts that should be found for the purpose of sentence. Mr Stewart of counsel for the offender concedes, appropriately, that the jury accepted the victim beyond reasonable doubt and the facts should be essentially as asserted by the victim.

8. For the purpose of proceeding to sentence I am satisfied beyond reasonable doubt of the following. The victim is the natural granddaughter of the offender. All three offences were committed as part of the one ongoing episode of offending in the bathroom of a house in Narrandera. Those premises at the relevant time was the residence of the victim’s aunt LM and her two children. LM is the daughter of the offender. The offender resided at those premises from time to time and had his own bedroom within the premises.

9. Mr Stewart submitted that as the offending occurred when the victim was either 4 or 5 years of age the court should sentence on the basis that I could not be satisfied beyond reasonable doubt other than that the offending occurred towards the end of the period pleaded in the indictment. The Crown accepted that submission. Independently I also accept that submission.

10. The offending occurred on occasion when the victim’s parents dropped off the victim to be babysat by the offender and the victim’s aunt LM. On the relevant day the victim had been at the premises for some 2 to 3 hours.

11. During that period of time the victim was in the bathroom of the house with the offender. The offender pulled down the pants of the victim and touched and rubbed the vagina of the victim with his hand. The victim said the touching was in the “middle”. The touching was skin on skin. The period of time over which this occurred was not specified, however, I could not be satisfied other than that the touching occurred for a short period of time. That is the conduct which count 1 relates.

12. Immediately after the conduct which count 1 relates occurred the offender lay the victim on the floor of the bathroom and told her not to talk and not to move. The offender inserted a finger into the vagina of the victim. Again, the period of time over which this occurred is not specified and again I could not be satisfied other than that the digital penetration lasted for a short period of time.

13. Count 3 on the indictment relates to an act of penile-vaginal intercourse. The offender was on his knees and lifted the victim up “a little bit”, holding up her legs. He inserted his penis into her vagina and intercourse lasted for about three minutes until the victim’s aunt knocked on the door. The victim said that she could feel the offender’s penis inside and “it was hurting”. After the knock on the door the offender pulled up the victim’s pants “really quick”, pulled up his own pants and pushed her out of the door. The offender admonished the victim not to tell anyone as if she did he would go to jail and her (the victim’s) father would hate her for that. The victim’s father is the son of the offender.

14. Accordingly, the offending ceased because the offender was interrupted.

15. The victim first disclosed the offending to her mother in April 2021. The victim was discussing issues related to puberty with her mother and in the course of doing so enquired whether a hymen when broken would regrow. The victim’s mother replied “no, why?” And the victim replied “because pop broke it… With his fingers and his dick”.

16. I accept the manner in which the facts are set out is somewhat bland and almost sanitised. The manner in which the facts are set out is not to deprecate the appalling conduct of the offender towards his own granddaughter who was particularly young. The offending involved a significant breach of a position of trust.

Assessment

17. On the issue of assessment, I will initially go to some matters of general principle. There is no hierarchy of the various sorts of sexual intercourse. The facts and circumstances of each case will inform the objective seriousness. See for e.g. R v AJP (2004) 150 A Crim R 575; [2004] NSWCCA 434 at [24], Jolly v R [2013] NSWCCA 76 per Bellew J (Hoeben CJ at CL, Slattery J agreeing) said at [72] and R v Gavel [2014] NSWCCA 56. The absence of an aggravating factor does not lessen the seriousness of a matter. Some regard can be had to the fact that the sexual activity was of short duration – see R v AA [2017] NSWCCA 84 per Beech-Jones J (as his Honour then was) at [56]. Generally, the younger the child victim the more serious the matter will be – see for e.g. R v PMG [2006] NSWCCA 310 at [36].

18. In the matter presently under consideration the offending was in breach of a position of trust. The statutory factor of aggravation provided for by s 21A(2)(k) of the Crimes (Sentencing Procedure) Act is enlivened.

19. In respect of all of the offending the victim was 5 years of age. The offending was spontaneous and of limited duration. The offending came to an end when the offender was interrupted. The offender admonished the child not to tell anyone about the offending. There was no other physical violence or threats of physical violence. However, in respect of count 3 the victim said that it hurt.

20. Further, in respect of the offending, while it did not occur in the home of the victim it occurred in the home of a close relative where the victim was entitled to feel safe. This is not a factor of aggravation but one of the many factors that inform the seriousness of the matters.

21. Evidence was led at trial by way of relationship or context evidence that the offender also offended against the victim later in time in Victoria. Given the limited basis on which that evidence was admitted and the limited use to which the jury could put that evidence that evidence is not a matter that achieves any great weight in this sentencing exercise. I understood Mr Stewart to concede in the course of oral submissions that the offending for which the offender appears for sentence is not isolated.

22. In respect of count 1 (Aggravated Indecent Assault) the offending involved skin on skin contact between the offender’s fingers and the victim’s vagina. Mr Stewart submits that the matter is slightly below mid-range. I understood the Crown Prosecutor to agree with that submission. Independently, given all of the facts and circumstances I am also of the opinion that the offending is slightly below mid-range.

23. The age of the victim is particularly significant so far as counts 2 and 3 on the indictment are concerned. The digital penetration was of limited duration. Mr Stewart again submitted, and again I understood the Crown to agree, that count 2 was below mid-range. I independently agree with that but noting the age of the victim it is slightly below mid-range. Noting the nature of the intercourse and the general facts and circumstances count 3 is within the mid-range, but towards the lower end of the mid-range.

Section 25AA of the Crimes (Sentencing Procedure) Act, 1999.

24. In passing sentence I will need to give proper effect to s 25AA of the Crimes (Sentencing Procedure) Act, which relevantly provides:

25AA   Sentencing for child sexual offences 

(1), (2)      (Repealed)

(3)    When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as understood at the time of sentencing (which may include recent psychological research or the common experience of courts).

(4)      (Repealed)

(5)    In this section—

“child sexual offence” means the following offences regardless of when the offence occurred but only if the person against whom the offence was committed was then under the age of 16 years—

(a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 of the Crimes Act 1900,

(b)  an offence under a provision of that Act set out in Column 1 of Schedule 1A to that Act,

(c) an offence of attempting to commit any offence referred to in paragraph (a) or (b),

(d)  an offence under a previous enactment that is substantially similar to an offence referred to in paragraphs (a)–(c).

25. It is now generally accepted that sexual offending causes trauma to children. There is no specific evidence in the present matter as to any effect of the offending on the child. There is no victim impact statement. The Crown submits that the full effect of the offending may “evolve over time”. There is no material on which I could make a finding that the victim suffered substantial emotional harm as a result of the offending.

General Deterrence

26. The strong need for general deterrence when dealing with offences of child sexual assault is undoubted. The need for general deterrence goes back to at least the Crown appeal in the matter of R v Muldoon unrep. NSWCCA 13.12.1990. More recently, see for example the leading judgment of Hulme J in R v Van Ryn [2016] NSWCCA 1 at [178] where his Honour said:

“The Crown referred to EG v R [2015] NSWCCA 21 at [42] where Hoeben CJ at CL said:

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

27. Other cases include Burchell (1987) 34 A Crim R 148 and MC v R [2017] NSWCCA 316. I also note what Walton J said in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 at [50]:

“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]:

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

28. More recently there is the decision of the Court of Criminal Appeal in Maxwell v R [2020] NSWCCA 94. At [75] Johnson J (Adamson & Bellew JJ agreeing) in dealing with victim impact statements and the effects of sexual offending against young children said:

29. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, the Court said at [110]:

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

Criminal History

30. The offender was born on 27 January 1957 and is currently 66 years of age. The offending occurred when he was 55 or 56 years of age. While the criminal history could not be said to be extensive the offender has been convicted of Steal Motor Vehicle, Unlicenced Shooter, Serious driving offences including drink driving and drive while disqualified matters, Break Enter and Steal which were dealt with on indictment in New South Wales. In Victoria he has a record of Recklessly Cause Serious Injury, Burglary and Assault Police.

31. In the circumstances I am of the opinion that the record of the offender does not entitle him to any particular leniency.

Subjective Case

32. No oral evidence was called from or on behalf of the offender. However a report dated 3 April 2023 by Dr Paul Pusey was tendered and became Exhibit 1. I will initially deal with that report before going to other aspects of the case.

32. At paragraphs 10 and 11 of the report it is noted that the offender denied his guilt in relation to the offences. There is no material on which I could make any findings that the offender is remorseful. Mr Stewart of counsel conceded as much in the course of his oral submissions.

33. It seems that the offender still enjoys some family support. I note at trial LM gave evidence contrary to the Crown case. The Crown successfully applied to have her cross-examined as an unfavourable witness. Other family members were present at the trial. However at paragraph 34 of the report it is noted that the offender was “thrown out of the house” when he was living with his daughter and lived alone in the bush in his car. The offender began to drink and smoke cannabis to excess. He has been abstinent from alcohol and substances since going into custody.

34. The offender was raised in Narrandera as part of the Aboriginal community. He identifies as being a Wirradjuri man. At paragraph 19 of the report Exhibit 1 it is set out the offender was the victim of sexual assault when he was seven or eight years of age. His sisters were also molested by the same perpetrator who was a police officer from Thursday Island. The report also sets out that no action was taken by the authorities when the matter was reported to the police. The offender told the author of the report, “When I grew up aboriginal people weren’t recognised.” The offending impacted on the offender.

35. Further, the report sets out that the offender left school at the age of 14, part way through year 8. The offender’s father was of the view apparently that as the offender was not achieving at school he should leave and help him trap rabbits. At paragraph 25 of the report it is noted the offender was unemployed at the time of the offences. It is also noted the offender has memory loss associated with brain damage. This affects his short-term memory.

36. At paragraph 30 of the report the author sets out that the offender opined to the author that the father of the victim in the matter presently under consideration sexually assaulted his younger sister and that he (the victim’s father) has created a story about the offender sexually assaulting his daughter to protect himself. This was part of the defence case at trial. The victim’s father was extensively cross-examined on this issue. Clearly, given the verdicts, the jury rejected the defence case and accept the victim beyond reasonable doubt.

37. Some few months before the offender was taken into custody an infant died from Sudden Infants Death Syndrome (SIDS) at his home. This had an effect on the offender. He resorted to substances as a result of this. He had been largely abstinent from cannabis for about 10 years before this event.

38. The offender maintained (see para 39) that he has a brain injury that leads to him having issues with his memory. He is apparently on a waiting list to see a relevant doctor. The offender is apparently receiving some type of mental health intervention in custody, however, this seems to be limited to medication. The offender has been in the past an inpatient at a mental health hospital. He attempted suicide a number of times in the past.

39. Under the heading “Diagnosis” at paragraphs 58-59 the following is recorded:

“Based upon the information provided for the purposes of this assessment that at the time of his offending it is not clear that at the time of Mr Morgan’s offending that he would have met the diagnostic criterion for a mental health diagnosis as described in the DSM5.

Mr Morgan describes experience of adverse psychosocial circumstances and experiences which have impacted his functioning and likely his broad psychosocial development including his experience of childhood sexual abuse and the impact this had on his functioning at the time it occurred, his experience of a significant physical injury which led to brain damage and the disruption of his vocational functioning, and the impact of the termination of his first marriage. He did not however identify that any of these events were significant contributors to his functioning during the period when his offending is reported to have occurred.”

41. At paragraph 61 of the report the author opines that at the time of the assessment the offender met the diagnostic criteria for post-traumatic stress disorder and major depressive disorder.

42. So far as the risk of reoffending is concerned the author of the report sets out (para 71) that the offender’s risk of recidivism is entirely dependent on his ability to adequately address the risk factors cited in the report, in particular his ability to either understand how and/or why he engaged in his offending behaviour, in particular the extent to which this behaviour is related to historical experiences or arises from some other mechanism.

43. Having read the report number of times it appears to me that Dr Pusey does not really come to a conclusion as to whether the offender is unlikely to reoffend. Be that as it may, noting the age of the offender, the fact that he will be in custody for a significant period of time and the fact he will be subject to supervision upon his eventual release, noting that there are no other sexual offences on his record, I am prepared to find that the offender is unlikely to reoffend. I am fortified in this conclusion by noting that the author of the sentence assessment report sets out (page 2 of the report) that the offender is a below-average risk of reoffending in a sexual manner. I note however that he is assessed as a medium risk of reoffending overall (page 3). This does not alter my finding that the offender is unlikely to reoffend.

44. Dr Pusey recommends (para 73) that the appropriate treatment pathway for the offender would include to support the continued development of insight into his identified psychological vulnerabilities, support his capacity to construct a psychosocial context which promotes and supports his fusion with prosocial behaviours roles and cognitions, ongoing abstinence from alcohol and illicit substances and support his capacity to appropriately process his historical experiences. Clearly the doctor recommends ongoing treatment directed towards mental health and substance abuse issues.

45. So far as prospects of rehabilitation are concerned, I note that the offender maintained his innocence. There is no expression of remorse. I have found that the offender is unlikely to reoffend. Provided the offender engages in a meaningful way in treatment as recommended by Dr Pusey I agree with the submission made by Mr Stewart that the prospects of rehabilitation are “quite good”.

46. One of the few issues in contention at the sentence hearing was whether the factors enunciated by the High Court of Australia in Bugmy v The Queen [2013] HCA 37 are enlivened in this case. Counsel for the offender submitted that they were citing that part of Exhibit 1 at paragraph 19 and in particular the statement “when I grew up Aboriginal people weren’t recognised”. The sexual abuse to which the offender was subject as a child is also relevant to this issue. I also note at paragraph 24 of Exhibit 1 it is noted that the offender told the author of the report that there was no Social Security at the time that he left school and they were given food vouchers that did not give them enough to live on.

47. The Crown in submissions referred to paragraph 34 of the judgment of the plurality in Bugmy. At [34]-[38] of the judgment of the plurality in Bugmy the following appears:

“[34] Mr Ipeelee was sentenced to three years' imprisonment for breaching a condition of his long-term supervision order ("LTSO") that he not drink alcohol. The sentencing judge considered that Mr Ipeelee's Aboriginality had been taken into account at the time he was sentenced for the offence giving rise to the LTSO and that in the circumstances his Aboriginal status was of diminished importance. LeBel J, delivering the judgment of the majority of the Supreme Court, made clear that the duty imposed by s 718.2(e) applies in every case involving the sentencing of an Aboriginal offender. Their Honours rejected the need to establish a causal link between systemic and background factors affecting Aboriginal offenders and the offence. They explained that these factors provide the context in which the appropriate sentence is to be determined. They went on to state:

‘This is not to say that those factors need not be tied in some way to the particular offender and offence. Unless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.’

[35] The appellant submits that the statements in Gladue and Ipeelee respecting the unique systemic factors applying to the sentencing of Aboriginal offenders have equal application to the sentencing of Aboriginal offenders in New South Wales. The instruction contained in s 718.2(e) of the Canadian Criminal Code was likened to s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"), which provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

[36] One evident point of distinction between the legislative principles governing the sentencing of offenders in Canada and those that apply in New South Wales is that s 5(1) of the Sentencing Act does not direct courts to give particular attention to the circumstances of Aboriginal offenders. The power of the Parliament of New South Wales to enact a direction of that kind does not arise for consideration in this appeal. Another point of distinction is the differing statements of the purposes of punishment under the Canadian and New South Wales statutes. There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice.

[37] An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence. In this respect, Simpson J has correctly explained the significance of the statements in Fernando:

‘Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.’

[38] The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender's conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. To do so, he said, is to acknowledge the endemic presence of alcohol in Aboriginal communities and:

‘the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.’"

48. Bugmy v The Queen is authority for the proposition that there must be some evidence of the factors before they are taken into account on sentence. The evidence in this case is limited to what appears in the report of Dr Pusey, exhibit 1 on sentence. Mr Stewart submitted that the weight of the “Bugmy factors” should not be minimised. As I observed in the matter of R v Naderi [2022] NSWDC 534 at [101]:

“As I understand the principles, consideration is extended to an offender by reducing the moral culpability of an offender to whom the principles apply because the criminal law accepts that because of the deprivations and other experiences suffered or witnessed in formative years a person has a distorted or unrealistic and/or an incomplete or limited or very little if any, real understanding of what is morally wrong or unacceptable. Once it is established on the evidence that the “Bugmy factors” are enlivened it becomes a question of what weight attaches to those factors in reducing the moral culpability of the offender.”

49. In the matter presently under consideration, given what is in the report exhibit 1 noting that the offender was 14 in 1971, he grew up in a small country town (Narrandera) as part of the Aboriginal community and in particular noting the sexual abuse and the statement that “when I grew up Aboriginal people weren’t recognised” I accept that the “Bugmy” factors are enlivened. However, while they are enlivened, they do not achieve the weight as with many other matters with which this court has dealt, particularly in far western New South Wales. The factors once enlivened reduce the moral culpability of the offender.

General Remarks

50. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

51. Section 5 provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives that no other sentence is appropriate. Clearly in this matter given the offending, the maximum penalties, the standard non-parole periods and the need for general deterrence there must be a substantial sentence of imprisonment. No contrary submission was made. Clearly that imprisonment must be by way of full time custody.

52. The offender was arrested on 30 August 2021 and has been in custody in respect of these matters since that date. Accordingly, that is the date on which the sentence and the non-parole period will commence.

53. The Covid-19 pandemic still plagues the community in general. The impact on persons in custody is significant. Lockdowns are more frequent and of longer duration, face-to-face visits are severely restricted, there is an isolation period upon being moved from one institution to another and outside agencies that conduct courses find it more difficult to access the correctional centres. All of this goes to make custody more onerous and goes to a finding of special circumstances.

54. Further submissions were made as to the issue of custody being onerous for this offender. These issues were the age of the offender (65) and the physical and mental health issues. I agree that these are considerations that also go to finding of special circumstances. It occurs to me also that given what will be a lengthy period in custody the offender will require assistance in reintegration into the community.

55. Mr Stewart submitted that other matters also go to a finding of special circumstances, in particular the need for an extended period of supervision to ensure that the offender receives appropriate treatment for his mental health issues and alcohol abuse issues. I agree with counsel’s submission, but it is a question of weight. The sentence will be substantial and even the statutory ratio would allow for a significant period of supervision. Be that as it may for the reasons set out in the paragraphs immediately above there should be a finding of special circumstances.

56. Although the three offences for which the offender appears for sentence arose out of the one ongoing incident it remains an appropriate matter for an aggregate sentence. If separate sentences were imposed there would need to be some modest partial accumulation to recognise the different offending, in particular the two acts of sexual intercourse. It will be necessary to set out the sentences that would have been imposed had separate sentences been imposed. Those sentences are:

In respect of count 1: Non-parole period of 2 years with a balance of term of 1 year making a total sentence of 3 years (noting the non-parole period is rounded down applying the same ratio as for the total aggregate sentence). The total indicative sentence is 3 years.

In respect of count 2: Non-parole period of 4 years 4 months with a balance of term of 2 years and 2 months (again noting the non-parole period is rounded down). The total indicative sentence is 6 years 6 months.

In respect of count 3: Non-parole period of 5 years 8 months with a balance of term of 2 years and 10 months. (Again, noting the non-parole period is rounded down). The total indicative sentence is 8 years 6 months.

Orders

57. In respect of the offences to which counts 1, 2 and 3 on the indictment relate the offender is convicted.

58. The offender is sentenced to an aggregate sentence of 9 years 6 months with a non-parole period of 6 years 5 months.

59. The non-parole period will commence on 30 August 2021 and will expire on 29 January 2028. The balance of term of 3 years and 1 month will commence on 30 January 2028 and will expire on 28 February 2031.

60. The offender will be eligible for release at the expiration of the non-parole period and I recommend that release.

61. The sentence indicates a finding of special circumstances, the reasons for which are set out within these reasons. The non-parole period is 67.5% (being the mathematical mid-point between 65% and 70%) of the total sentence.

62. I direct a copy of the report of Dr Pusey be forwarded to the Department of Corrective Services with the relevant warrant.

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Decision last updated: 05 May 2023