R v Young

[2022] NSWDC 684

District Court

New South Wales

Medium Neutral Citation:

R v Young [2022] NSWDC 684

Hearing dates:

12 December 2022

Date of orders:

17 February 2022

Decision date:

17 February 2022

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full time custodial sentence. For orders see [92]

Catchwords:

SENTENCE – maintain unlawful sexual relationship with child – s66EA of the Crimes Act 1900.

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Burr v R (2020) 285 A Crim R 504; [2020] NSWCCA 282

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Magnuson v R [2013] NSWCCA 50

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

RJT v R (2021) 218 A Crim R 490; [2012] NSWCCA 280

SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19

Xerri v R (2021) A Crim R 355); [2021] NSWCCA 268

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
John Robert Young (Offender)

Representation:

Mr Carnell (Crown)
Ms McLaughlin (Offender)

File Number(s):

21/1220022

Publication restriction:

Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of the victim in the proceedings.

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of an offence pursuant to s66EA of the Crimes Act 1900 that he between 1 January 1992 and 31 December 2005 at M, SH, LM, W and W in the State of New South Wales, did maintain an unlawful sexual relationship with PW, who was then a child under the age of 16, namely 4 - 14 years of age, in which the Accused engaged in the following two or more unlawful sexual acts.

2. The sexual acts were particularised as exposing his penis to PW and masturbating himself in front of PW; directing the victim to masturbate his penis; touching PW’s genitals; performing cunnilingus on PW; directing PW to perform fellatio on him; penetrating PW’s vagina with a spoon; penetrating PW’s vagina with his penis and rubbing his penis on PW’s genitalia.

3. The offender presented himself to Belmont Police Station voluntarily on 2 May 2021 where he made admissions to the offending. The offender entered a plea of guilty in the Local Court at the earliest available opportunity. He was born on 13 January 1961 and was aged between 31 and 40 years at the time of offending. He is now 61 years old. The offender has been in custody since 2 May 2021, referrable solely to this offence.

The sentence hearing

4. A sentence hearing took place on 12 December 2022. The Crown sentence summary bundle became Exhibit A and it included a statement of agreed facts which may be summarised as follows.

5. The victim PW was born in March 1987 to her mother JY and her natural father is unknown to her. The victim has six siblings. In 1991 the victim and her mother moved to premises in M.

6. The offender met JY in December of 1991, and he moved into the premises in M with JY and PW in early 1992. From January or February 1992 until between March 2000 and August 2001 the offender maintained an unlawful sexual relationship with PW. During that period PW was aged from 4 to 14 years.

7. The offending commenced at the beginning of 1992 when the victim was 4 years old. The first offending conduct occurred between 1 January and 29 February 1992, on which first occasion the offender had PW masturbate and perform fellatio on him. The offender then had PW masturbate him to ejaculation.

8. There was a short break in offending when the offender, PW and JY moved to W where PW shared a room with her cousin and there was often people around. In early 1994 PW, JY and the offender then moved to SH. At this time the victim was in Year 2 and the offending recommenced at these premises.

9. The offending in early 1994 consisted of the offender waking the victim, once her mother was asleep, having her watch TV with him in the loungeroom and having her masturbate him until ejaculation. From April 1994 the offender continued to wake PW in the same manner but had her perform fellatio on him. This offending occurred on a weekly basis.

10. In May 1994 the offending increased to include cunnilingus. In the course of this offending the offender used both his tongue and his fingers, and following the cunnilingus the offender would make PW fellate him. This offending continued to occur on about a weekly basis and in the same manner each time. After each occasion the offender told PW not to tell anyone. He told her that if she did tell anyone no one would believe her, and she would get in trouble.

11. In winter 1994 the offender started playing pornographic videos on the television in the loungeroom and made PW watch them with him whilst he performed cunnilingus on her. This offending conduct occurred once or twice a week for the next few years.

12. In early December 1994 whilst the offender had PW in the loungeroom at night watching a pornographic movie he told PW that he was going to start getting PW used to having something in her vagina like the people depicted in the movies. The offender then lay PW down, puller her pyjama shorts to the side and rubbed PW’s clitoris and the outside of her vagina with a baby’s spoon. The offender then inserted the spoon into PW’s vagina. PW experienced extreme pain and the offender told PW that it would get better and easier, and that PW had to get used to it so she should practice it. This offending conduct occurred again about a week later. PW told the offender that it hurt too much, and he stopped.

13. In mid-late December 1994, in similar circumstances to the previous offending the offender told PW he would use his penis instead of the spoon but that he would only put it on the outside of her vagina. The offender then rubbed his erect penis against PW’s vagina and clitoris until he ejaculated on her stomach. The offender then laughed and said “Oops”, he cleaned it up and informed PW that she would be sticky.

14. On 10 September 1994 JY (the victim’s mother) married the offender at S.

15. The offending conduct continued throughout this time and on an occasion between 1 December 1995 and 29 February 1996 when PW was aged 8, the offender entered the bathroom at the SH premises whilst PW was inside. The offender sat PW on the toilet, puller her shorts down and performed cunnilingus on her. The offender then stood up and exposed his erect penis to PW, he said to her “This is how you do it properly”, and took PW’s hand and had her grip his penis, he then said “put your mouth on it and pull it at the same time”. PW did as the offender instructed until he ejaculated in her mouth.

16. On another occasion between 1 March and 30 April 1996 whilst the offender was aged 8 years the offender called PW into his bedroom at the SH premises. The offender had PW sit on top of him, whilst they both were naked from the waist down, and then had her stimulate sexual intercourse by having her rub her vagina against his erect penis until he ejaculated onto his stomach.

17. In late 1997 or early 1998 PW’s family moved to premises at B. At this residence PW shared a bedroom with her sister DW. The offending conduct continued at this address on two separate occasions when PW was 10 or 11 years of age and consisted of the offender making PW watch pornographic movies with him, performing cunnilingus on her and having PW masturbate and/or fellate him.

18. On an occasion between 1 June and 31 July 1998 when the victim was aged 10, the offender and PW were home at the B residence with PW’s sister NM, who was asleep. The offender called PW into his bedroom where he was naked under a blanket, PW said “No”, the offender was urging PW to hurry up and not wake up her sister, he said “Come in and get it over with and stop being a little bitch about it.” PW was scared and hesitant, the offender then grabbed her arm and pulled her to him, he then forced her hand up and down his penis forcefully. PW left the room and slammed the door which woke up NM. The victim went to attend to NM and PW received a bruise on her arm from where the offender grabbed her arm.

19. PW’s mum was hospitalised in August 1998 for about 8 weeks due to a difficult pregnancy with the offender’s baby. The offender was responsible for PW and his other children but found this difficult due to his alcohol abuse. During this time the offender was physically abusive to PW and on an occasion threatened to kill PW.

20. In September 1998 the offender contacted the local church to assist with caring for the children and they subsequently took PW and her siblings from their home and placed them in different care arrangements. This caused the breakdown of the offender’s relationship with PW’s mother.

21. After her mother’s discharge from hospital PW, her mother and two of her sisters moved to reside in a caravan at CB. The offender did not reside there. At this time the offender was restricted from visiting them due to an Apprehended Violence Order that was in place, but he continued to visit on occasions.

22. In September 1999 PW moved with her family and the offender to premises in W. At these premises the offender often said to PW, after learning that she was menstruating, “Old enough to bleed, old enough to slaughter”, and “she’s not my blood”. At this time PW joined a Youth Group and spent a lot of time there to avoid being at home with the offender.

23. On an occasion between 1 December 1999 and 29 February 2000 when PW was aged 12 she and the offender were arguing at home alone in the W premises. The offender then attacked PW and caused her to lose consciousness. The next thing PW remembered was waking up on the offender’s bed after he had removed her pants and laid her on her back. The offender was standing between PW’s legs and was attempting to force his penis into her vagina. This caused PW extreme pain which continued for several days due to a vaginal tear she suffered. The offender was not wearing a condom, and PW struggled away and fell to the floor. The offender then yelled at her “Stop faking. I know you liked it. Your snatch doesn’t hurt, you bullshit artist. You weren’t knocked out. You wouldn’t be wet if you were knocked out.”

24. On another occasion between 12 March 2000 and 31 August 2001 when PW was aged either 13 or 14 years the offender offered to buy PW a ticket to a music festival she wanted to attend if she “let him try again”. The offender then performed cunnilingus on PW for about five minutes, he then removed his shorts and exposed his erect penis. The offender then inserted his erect penis into her vagina. PW experienced extreme pain causing her to instinctively push the offender back with her legs. After this assault PW had suicidal ideations. This was the last sexual assault on the victim however domestic violence continued.

25. In December 2020 the offender moved in to reside with JY at BS due to poor health and circumstances.

26. On 2 May 2021 the offender said to JY “I’m sorry. I interfered with PW. I’m sorry I molested her. I’m sorry I destroyed your lives.’ The offender then left that house and later that day he attended Belmont Police Station and made admissions to the offence, notwithstanding that there was no active investigations into his offending, nor had PW ever made a formal complaint to police. The offender disclosed the following in his ERISP interview;

1. That he had sexually assaulted the victim when she was a child “over a long time” and that he wanted to turn himself in;

2. The nature of the offending included cunnilingus, fellatio and penile/vaginal intercourse without a condom; and

3. He did not know how many times he assaulted her.

27. Following these frank admissions, the offender was arrested, and the victim was contacted by police. PW provided a number of statements detailing the offender’s conduct, which were consistent with the offender’s admissions to police.

28. Exhibit A also included the offender’s criminal records from New South Wales, Victoria and Queensland as well as a NSW Custodial History. The various criminal records in Exhibit A set out that the offender’s criminal history began in Yasmar Children’s Court in 1977 when the offender was 16 years old. The offender’s criminal records illustrate a series of alcohol-related offences including drink driving, assaults, theft, goods in custody, several dishonesty offences, use offensive language, resist arrest, malicious damage and injury, contravene AVO, animal cruelty and stalk/intimidate intend fear of physical/mental harm. The criminal records also illustrate the offender’s difficulties in attending court and complying with court orders.

29. The offender was subject to a recognisance order at the time of the offending.

30. Exhibit A also included the Victim Impact Statement in which PW outlined the significant impact the offending had on her. In it PW describes how the offending caused her to struggle through every single day of her life after the offending commenced. She stated how the offender manipulated her emotionally whilst abusing her physically. She described how she had contemplated suicide since before she was 10 years old and her depression and mental ill-health continued and ruined her chances of working in her dream profession. She stated the offending “ruined my entire life” and she described her difficulties in trusting and building relationships with people. The Victim Impact Statement was read in court by the victim’s representative, Ms C Tyler.

The offender’s evidence

31. Exhibit 1 was a report of Dr Richard Furst, forensic psychiatrist dated 2 December 2022. Dr Furst assessed the offender for 60 minutes via AVL on 18 October 2022. Mr Young was born on 13 January 1961. His parents separated at a young age and his was placed in institutional care between the ages of 6 and 10 years. He was subsequently subject to physical and sexual abuse and was mentally traumatised. He suffered the tragic loss of an older brother in 1981.

32. The offender had limited education and work history. He had been treated for Bipolar Affective Disorder, severe Depression and Post Traumatic Stress Disorder (“PTSD”) and had often felt suicidal. He had a number of admissions for psychiatric care. He was treated with anti-psychotic/mood stabilising medication prior to his arrest and incarceration in May 2021 when he voluntarily presented at Belmont Police Station to confess about the index offending against his step-daughter in the 1990s.

33. Under the heading “Drug and alcohol history”, Dr Furst recorded the offender drinking alcohol excessively from the age of 14, abusing cannabis and amphetamines in his adolescence and twenties until he stopped using amphetamines in his early thirties. He has continued heavily drinking alcohol since.

34. Dr Furst opined that the reason for his offending against his step-daughter are “unclear but are most likely the product of opportunity/access to the victim and attraction towards the victim. Additionally, men who have been victims of child sexual abuse have approximately an 8-fold risk of becoming perpetrators of sexual offences themselves in their adult lives.”

35. Dr Furst went on to opine that the main relevance of the offender’s mental health impairments and cognitive impairment lies in the likely impact of a custodial sentence on him.

36. Dr Furst further opined that his overall risk of reoffending is lower than the average male sex offender coming before the courts in NSW. He had not re-offended in his twenty years in the community following the offending and before he presented himself to police.

37. Exhibit 2 was a report of Ms N Skea dated 29 August 2022. Ms Skea is a psychologist who assessed the offender on 8 July 2022 for one and a half hours. She noted that his criminal history dated back to 1980 when he was 19 years of age. He had had interactions with the NSW Police and Justice system since that time. She referred to an earlier report by forensic psychologist Dr M Hughes dated 8 October 2021 in which Dr Hughes opined that he had an alcohol related brain injury and estimated his pre-morbid intellectual functioning to be “borderline”. She noted his various hospital admissions and opined that he demonstrated sincere remorse for his offending.

38. The author noted that he had been diagnosed with Alcohol Use Disorder having commenced abusing alcohol in his early teenage years before he moved to other illicit substances including hallucinogens.

39. Ms Skea opined that the offender’s criminal conduct is best understood within the context of his development history, which constituted one of disadvantage including trauma and abuse, insecure parental attachments and adverse events including the death of his brother. Whilst there was no formal assessment of it, the history suggested he had the criteria for a Cluster-B (dramatic/erratic) personality type with anti-social features. The author opined that the index offending primarily functions from his unstable personality structure, underpinned as it was by psychological trauma. She set out treatment recommendations and described the offender as “a vulnerable person who will find it especially difficult to withstand and adapt to the heightened stress of the incarceration setting because of his mental illness, low level of cognitive function, age, personality vulnerabilities, and his placement in a protective unit for his own safety.”

40. Exhibit 3 was a report of Dr J Phillips dated 25 August 2020. Dr Phillips is an eminent psychiatrist who interviewed the offender on 23 June 2020 by telephone for almost two hours. He set out the offender’s history of institutional life and sexual abuse. He was exposed to both alcohol and illicit drugs from an early age and had served his first prison sentence when he was 18 years of age.

41. This report was clearly prepared for the purpose of assessing the psychological trauma suffered by the offender as a result of sexual abuse he suffered as a child at the Bexley Boys Home. Dr Phillips noted the following symptoms experienced by the offender:-

• “He suffers substantive anxiety, and described panic attacks in crowds.

• He is avoidant in his behaviour and prefers to remain at home.

• He is distrustful/fearful of authority figures (particularly police).

• He experiences substantial anger from time to time. He tries to modify the emotion with alcohol.

• He experiences depression at most times, this is complicated by episodic nihilistic thinking and occasional suicidal thoughts. He is troubled (as in the past) by ongoing feelings of helplessness/ hopelessness/ uselessness/ worthlessness/ self-pity/ guilt.

• He has ongoing problems with sleep, noting initial insomnia, and nightmares. He also has a nocturnal fear that someone might attempt to touch him.

• He overreacts in certain situations, noting that be becomes “upset” each time he sees a Salvation Army op shop, or witnesses a person in uniform.

• He believes he might be “paranoid” about people, noting a long-established fear of being attacked. He reacts badly when others look at him.

• He is hypervigilant at all times, again believing that he may be attacked. In relation to this, he feels compelled always to sit at the back of a bus or train, so that he can see what is happening.

• He resents that he no longer lives with his wife and holds a wish that they might be reunited.

• He dislikes conversation relating to his past and will avoid this as far as possible.”

42. On mental state examination the offender demonstrated minimal insight into the complexity of his problems.

43. Dr Phillips opined that the offender developed a group of refractory and pernicious depression spectrum syndromes as a result of his childhood abuse. He was diagnosed with PTSD and his symptoms were chronic and pervasive. Dr Phillips set out a treatment regime.

44. Exhibit 1.4 was an undated letter from Detective Sergeant Warren regarding information supplied by the offender regarding the Bexley and Goulbourn Boys Homes operated by the Salvation Army.

The Crown’s submissions

45. The Crown relied on a thorough and detailed outline of submissions in which it noted the maximum penalty for the index offence is life imprisonment. The offender has been in custody since his arrest on 2 May 2021.

46. The Crown submitted that the objective seriousness of the offending fell just above the mid-range for an offence against s66EA(1). The following matters were relevant to that assessment:

1. The higher number of sexual offences.

2. The statement of agreed facts disclosed 25 offences which occurred on 17 separate occasions. In early 1994 the offender would engage in sexual misconduct with the victim on a weekly basis. From 1994 to 1997 the offender had the victim masturbate and fellate him on a weekly basis. In May 1994 the offender performed cunnilingus, used his fingers on the victim’s vagina and would have the victim fellate him on a regular, weekly basis. From 1994 onwards “for the next few years, the offender would perform cunnilingus on the victim and sometimes inserted his fingers into her vagina once or twice weekly.”

47. The Crown submitted that the court would take into account the maximum penalty prescribed for each of the unlawful acts engaged in by the offender during the period of the relationship pursuant to s66EA(8) of the Crimes Act 1900. These included:-

1. Masturbating his penis with the victim – s61O(2) of the Crimes Act 1900 with a maximum penalty of 7 years imprisonment.

2. Making the victim masturbate his penis. This occurred on numerous occasions and constituted offences contrary to s61M(2) of the Crimes Act 1900 which had a maximum penalty of 10 years imprisonment (with no standard non-parole period at the time).

3. The offender made the victim masturbate his erect penis with her hand on a number of occasions which constituted offences contrary to s61M(1) of the Crimes Act which carried a maximum penalty of 7 years imprisonment.

4. Having the victim fellate him on three occasions constituted offences contrary to s66A of the Crimes Act which carried a maximum penalty of 20 years imprisonment (with no standard non-parole period at the time).

5. The offender having put his penis in the victim’s mouth weekly from 12 March 1997 until late 1997 when the victim was ten years old constituted offences contrary to s66C(2) of the Crimes Act 1900 which carried a maximum penalty of 10 years imprisonment at the time.

6. The offender performed cunnilingus on the victim on numerous occasions when she was between 7 and 9 years old. This constituted offences contrary to s66A of the Crimes Act and carried a maximum penalty of 20 years imprisonment (with no standard non-parole period at the time).

7. The offender performed cunnilingus on the victim on two occasions when the victim was 10 years old and 13 or 14 years old, respectively contrary to s66C(2) of the Crimes Act which carried a maximum penalty of 10 years imprisonment at the time.

8. The offender inserted a spoon handle into the victim’s vagina on two occasions in early December 1994 when she was 7 years of age contrary to s66A of the Crimes Act, which had a maximum penalty of 20 years imprisonment at the time (with no standard non-parole period).

9. The offender inserted his penis into the victim’s vagina on two occasions between 1 December 1999 and 31 August 2001 when the complainant was 12 years old and 13 or 14 years old, respectively. This was contrary to s66C(2) of the Crimes Act 1900 which had a maximum penalty of 10 years imprisonment.

10. The offender rubbed his penis on the victim’s vagina to the point on ejaculation on two occasions between mid-December 1994 and 30 April 1996 when the victim was 7 or 8, respectively. This was contrary to 61M(2) of the Crimes Act which had a maximum penalty of 10 years imprisonment at the time.

48. The preponderance of the offender’s criminal conduct occurred when the victim was aged between 4 and 10 years old, well below the age range of victims contemplated by s66EA(1). The offending also took place over a long period of time, just under 10 years between 1 January 1992 and 31 August 2001. There was also a marked age differential. The offender was 31-40 years old at the time of the offending however the two instances of penile/vaginal intercourse offending occurred when the offender was 38-40 years of age. The age difference between the offender and victim was 26 years which elevated the seriousness of the offending.

49. The Crown submitted that as the live-in partner of the victim’s mother he had authority over the victim which aggravated the offending pursuant to s21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). The Crown noted however that double counting should be avoided in respect of those offences pursuant to s61M(1), s61M(2) and s66C(2) which involve an element of being “under authority”.

50. The Crown submitted it was a further aggravating factor pursuant to s21A(2)(eb) that the offending occurred in the home of the victim. A further aggravating factor pursuant to s21A(2)(j) was that the offender was subject to a recognizance order at the time of the offending, however the preponderance of the offences fell outside the date range that the offender was subject to conditional liberty, plus the Crown did not submit that this aggravated the offending to any meaningful extent.

51. The Crown set out well established principles of sentencing for child sexual offences, highlighting the need for general deterrence, denunciation and protection of the community.

52. The Crown conceded that the offender was entitled to a 25% utilitarian discount for his early plea of guilty and also that the considerable delay in sentence was a relevant consideration on sentence, referring to the following passage in Magnuson v R [2013] NSWCCA 50 per Button J at [62]:-

“But it is useful to say at this stage that, whilst it is true that the applicant had not offended again since the last of the offences, it is also true that, having sexually assaulted his three victims over many years, he escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crimes during that time.”

53. The Crown noted that the offender’s age is a relevant factor on sentence however, disproportionate emphasis could not be placed on the offender’s age at the expense of other objective and subjective factors.

54. Following receipt of the offender’s counsel’s written submissions the Crown relied on a further supplementary submission regarding the discounts sought by the offender pursuant to s23 of the CSPA. The Crown conceded the Ellis discount afforded to the offender for his coming forward of his own volition and referred to a number of authorities relevant to any further discount for this factor. The Crown conceded the assistance here was of significance and falls squarely within the Ellis principles, however the offending was of such a serious, prolonged and frequent nature that it would not supplant the need for adequate punishment, denunciation and recognition of the harm done to the victim.

55. In respect of Exhibit 4, the letter from Detective Sergeant Warren, whilst conceding that s23 could apply to the circumstances outlined therein, relying on RJT v R (2021) 218 A Crim R 490; [2012] NSWCCA 280, the Crown submitted that the court would not exercise its discretion in affording a discount on that evidence,.

56. In his oral submissions the Crown relied on the written outline of submissions and noted the application of s25AA which requires the court to sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. Further, the Crown submitted that the Victim Impact Statement did not aggravate the offending but should be taken into account in assessing the seriousness of the offence.

57. The Crown further conceded that it was open to the court to find special circumstances pursuant to s44(2) of the CSPA.

The offender’s submissions

58. In a thorough and detailed written outline of submissions counsel for the offender set out the principles identified by Johnson J in Burr v R (2020) 285 A Crim R 504; [2020] NSWCCA 282 at [106], relevant to the assessment of the objective seriousness of an offence pursuant to s66EA that is non-exclusive. Counsel submitted the following features are relevant to the assessment of the objective seriousness of the offending here:-

1. The period of offending occurred over 9 years and 6 months – between early 1992 and no later than August 2001.

2. The victim was aged between 4 and 14 years. The offender was aged between 31 and 40 years.

3. All offending occurred in the family home.

4. The offender was in a position of trust. He was the victim’s stepfather.

5. The Agreed Facts detail 18 separate incidents of sexual offending. Some of these separate incidents involve more than one sexual act.

6. These incidents of sexual offending did not occur in isolation. It is conceded that sexual offending (fellatio and cunnilingus) occurred on a weekly basis for a specific period, namely between 1994 and 1997, while the family lived in SH.

7. The nature of the sexual offending varied but primarily consisted of fellatio, cunnilingus, and masturbation of the offender’s penis. There were two separate incidents where a plastic spoon was inserted into the victim’s vagina. There were two incidents of penile/vaginal intercourse.

8. During five of the incidents the offender also played a pornographic film to the victim. There is an element of grooming to his conduct throughout the offending.

9. Incidents 9 and 10 caused the victim pain. During incident 10 the offender ceased the conduct when the victim told him it hurt too much.

10. Incident 16 involved the offender roughly forcing the victim to masturbate him causing a bruise. The offender did, however, look shocked when she reacted audibly to this discomfort.

11. Incident 17 involved unprotected penile/vaginal intercourse. There is no evidence that he ejaculated. It was forceful and she resisted. It caused her pain. It also involved the offender being violent and verbally abusive.

12. Incidents 17 and 18 involved aggression, physical force and caused pain. Incident 17 also caused an injury (small vaginal tear) to the victim.

59. The offender conceded that the conduct was serious given the length of time over which the offending occurred and the age of the victim when the offending commenced. The offender conceded that the objective seriousness was above mid-range and towards the high range for an offence pursuant to s66EA.

60. Counsel conceded the offender’s criminal history disentitled him to leniency however he had no prior convictions for sexual offending either before or after the index offence. He had also only served one sentence of fulltime imprisonment which he served in 2014. It was submitted that his record bears the hallmarks of his alcohol addiction.

61. Counsel noted that the offender’s early plea of guilty entitled him to a 25% utilitarian discount on sentence. Counsel submitted that a significant discount was warranted pursuant to s23 of the Act as the offender voluntarily, without charge or invitation, attended Belmont Police Station to disclose his offending conduct. The existence of the crimes he admitted were otherwise unknown to the police and there was no ongoing investigation. Although the victim had disclosed the offending to some of her family, she had never made a formal statement or complaint. There was no basis to conclude that the offending conduct would have otherwise been brought to the attention of police. The following should be taken into account pursuant to s23(2) of the CSPA:-

1. The offender’s account was significant and useful because it not only amounted to reporting of a crime, prompting investigation, but also formed the case against him.

2. His assistance was truthful, reliable and consistent with what ultimately became the Crown case (once the victim provided Police with a statement).

3. His assistance was not timely – in the sense that it occurred 20 years after the offending conduct had concluded. There was not, however, a pending police investigation or charge.

4. Because of his admissions, he immediately placed himself in custody facing a significant sentence. He has not gained any benefits.

5. In the sense that, but for his coming forward he would not be in custody (necessitating protection given the nature of the charges), his assistance has warranted harsh custodial conditions, and,

6. His assistance concerned the offence for which he is to be sentenced.

62. It was noted that the combined discount of more than 40% (for plea of guilty and assistance) requires there to be a finding of “exceptional circumstances”.

63. Counsel submitted that there is definitive and powerful evidence of the offender’s remorse in his voluntary admissions, his plea of guilty and his expressions of remorse and guilt to Ms Skea.

64. Counsel summarised the offender’s subjective case as follows:-

1. He is now aged 61 years.

2. He was the victim of significant violence in the family home from one of his mother’s boyfriends. He was also exposed to the trauma of seeing his brother set himself on fire.

3. He experienced significant sexual and physical abuse as a child at Bexley’s Boys Home between the ages of 6 and 10.

4. He had a series of difficult experiences at school, and struggled academically and was bullied. He left school at 14.

5. He was sexually abused when he was 15 or 16 years old by the manager of a food store where he worked.

6. He commenced abusing alcohol at around 13 years. Apart from two periods in detoxication, his adult life has been marred by chronic alcohol addiction.

7. He abused drugs (particularly amphetamines) for periods during his youth and adulthood, but ultimately ceased in his 30s.

8. His brother died suddenly and tragically in 1981. This had a profound affect. He has one other brother.

9. His employment history is limited. He has been unable to hold down consistent employment. Until his remand in custody, he had been receiving the Disability Support Pension.

10. His one significant relationship was with the victim’s mother. It lasted 15 years, ending in 2006.

11. He has five daughters and one son.

65. Counsel also noted the offender’s long history of psychiatric and psychological conditions and treatment and the diagnosis of Dr Furst that the offender has PTSD and suffers symptoms consistent with Major Depressive Disorder, Alcohol Use Disorder, Borderline Personality Traits and Borderline Intellectual Disability. Counsel submitted that the offender’s moral culpability for the offending is reduced given the nexus between his background of significant disadvantage and his unstable personality structure as opined by Ms Skea. It was her opinion this stemmed from his experiences of profound childhood disadvantage and that the whole of the offender’s mental health impairments and cognitive impairments will make his time in custody more onerous.

66. Counsel submitted the offender has prospects of rehabilitation given the absence of offending over the last 20 years and the fact that his offending was limited to the one victim. Also he has volunteered his guilt, pleaded guilty and is remorseful. Dr Furst had opined his overall risk of reoffending is lower than the average male sex offender.

67. Counsel submitted that a finding of special circumstances should be made based on both his mental health and low level of intellectual functioning together with the impact of the COVID-19 pandemic on the prison population.

68. In her oral submissions counsel for the offender highlighted the assistance outlined by Detective Sergeant Warren, which included the fact that he not only gave a statement but was willing to give evidence. The outcome of the other offender’s trial was irrelevant.

69. Counsel submitted that this was a genuine Ellis type discount pursuant to s23 which the Crown had conceded. There had been no previous complaint and no police investigation on foot and it was unlikely that the offending would ever have been discovered. The fact that he had volunteered his offending conduct was entirely out of a consciousness of guilt which was relevant to his remorse and rehabilitation and warranted a significant discount. In this case, the discount should go beyond the conventional discount of 40% and should be in the realm of 50%, relying on SZ v R (2007) 168 A Crim R 249; [2007] NSWCCA 19 per Simpson J.

70. It was submitted that there was a strong public interest and value to the criminal justice system for offenders to come forward, particularly in sexual assault cases given the difficulty for victims to come forward and engage in the criminal justice system.

71. The Crown in fact conceded that the offender did give evidence in the trial of the other offender following which there was a conviction which was overturned in the Court of Criminal Appeal. On re-trial that person was acquitted.

Determination

72. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community”.

73. In assessing the objective seriousness of the offending I take into account that the relationship endured of a period of almost ten years between 1992 and 2001. The agreed statement of facts disclosed 25 separate offences which occurred on 18 separate occasions during that period. The sexual acts particularised were exposing his penis to PW and masturbating himself in front of her, directing PW to masturbate his penis, touching PW’s genitalia, performing cunnilingus on PW, directing PW to perform fellatio on him, penetrating PW’s vagina with a spoon, penetrating PW’s vagina with his penis and rubbing his penis on PW’s genitalia. From early 1994 the sexual misconduct occurred on a weekly basis and escalated in both seriousness and regularity so that from 1994 onwards over a number of years the offender would perform cunnilingus on the victim and insert his fingers into her vagina once or twice weekly.

74. During that period of the relationship the victim was aged between 4 and 14 years of age. The offender was aged between 30 and 40 years at the time of the offending and there is a 26-year age difference between him and the victim. The two instances of penile/vaginal intercourse offending occurred when the offender was 38-40 years of age. Both involved physical force, causing injury and pain to the victim. Given all of those matters, the offending fell above the mid-range for an offence pursuant to s66EA of the Crimes Act and towards the higher end of the range. Not only was it objectively very serious and pernicious offending, it bespoke a high moral culpability of the offender for his criminal conduct.

75. But for those offences pursuant to s61M(1), s61M(2) and s66C(2) which formed part of the offending misconduct, it was an aggravating factor pursuant to s21A(2)(k) of the CSPA that the victim was under the authority of the offender for the whole of the offending period as he was either in a de-facto relationship or married to the victim’s mother. A further aggravating factor pursuant to s21A(2)(eb) is that the offending occurred in the victim’s home, where she was entitled to be safe from his criminal conduct. The fact that he breached a recognizance order for a short period of time during the relationship did not amount to an aggravating factor pursuant to s21A(2)(j).

76. General deterrence is important in the sentencing process for child sexual offending. To conduct an unlawful sexual relationship with a child under the age of 16 years amounts to pernicious offending involving predatory behaviour towards the most vulnerable persons in our society. In prescribing a maximum penalty of life imprisonment, Parliament has sent a clear message to the community that offences pursuant to s66EA of the Crimes Act 1900 are of the most serious type in the criminal calendar, and a clear message must be sent to like-minded members of the community that the courts will impose condign punishment in appropriate cases.

73. Specific deterrence is also important in that the offender must understand the consequences if he were to reoffend.

74. There are a number of mitigating factors to take into account on sentence pursuant to s21A(3). First, pursuant to s21A(3)(i) I find that the offender has demonstrated genuine remorse for his offending conduct both by his voluntary disclosure to police and his expression of remorse to Dr Furst. The offender is also entitled to a utilitarian discount on sentence pursuant to s21A(3)(k) of 25% for his early plea of guilty.

75. Section 23 of the CSPA provides as follows:-

23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters—

(a) (Repealed)

(b) the significance and usefulness of the offender’s assistance to the authority or authorities concerned, taking into consideration any evaluation by the authority or authorities of the assistance rendered or undertaken to be rendered,

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender,

(d) the nature and extent of the offender’s assistance or promised assistance,

(e) the timeliness of the assistance or undertaking to assist,

(f) any benefits that the offender has gained or may gain by reason of the assistance or undertaking to assist,

(g) whether the offender will suffer harsher custodial conditions as a consequence of the assistance or undertaking to assist,

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, resulting from the assistance or undertaking to assist,

(i) whether the assistance or promised assistance concerns the offence for which the offender is being sentenced or an unrelated offence,

(j) (Repealed)

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must—

(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b) state the penalty that it would otherwise have imposed, and

(c) where the lesser penalty is being imposed for both reasons—state the amount by which the penalty has been reduced for each reason.

(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence.

80. The Crown has conceded that the assistance provided by the offender in coming forward of his own volition is a significant factor to be taken into account, however it should not supplant the need for adequate punishment, denunciation and recognition of the harm done to the victim. That assistance came twenty years after the offending conduct had concluded at a time when there was no pending police investigation or charge. It led to his immediate incarceration, in protection, during the COVID-19 pandemic where the courts have recognised that the conditions of incarceration are even more onerous given the limits places on visitation rights, access to rehabilitative programs and treatment as well as the need for lockdowns for the purpose of protecting the whole of the prison population. I propose to allow a further 15% discount on sentence for the offender’s self-disclosure to police leading to his arrest and incarceration.

81. In addition, the offender has provided further assistance to the investigating authorities concerning the perpetration of child sexual assault crimes in institutional care while he was there. He provided a statement, offered to give evidence, and did give evidence in the trial of another offender, for which I propose to allow an additional 5% utilitarian discount on sentence. The total discount will therefore be 45%.

82. I have taken into account the subjective matters outlined in the report of Dr Furst. The offender suffered a disadvantaged childhood during which he was placed in institutional care between the ages of 6 and 10 years and subjected to physical and sexual abuse which left him traumatised. He has been diagnosed with Bipolar Affective Disorder, Severe Depression and PTSD and has often felt suicidal. He has had a number of admissions for psychiatric care and has been treated with anti-psychotic and mood stabilising medication. I also note his introduction to alcohol and excessive use thereof from the age of 14 as well as his abuse of illicit drugs in his adolescence and twenties, which derived from his childhood trauma and mental health impairments. I also note his cognitive impairment.

83. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL set out at [177] the following principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental problems as follows:-

• “Where the state of person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].

• It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

• It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

• Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] – [24].”

84. Here, the offender’s criminal history does not entitle him to any leniency. However, his disadvantaged childhood and mental health diagnoses not only reduce his moral culpability for the offending but mean that he will find incarceration more onerous than the rest of the prison population.

85. The offender is now aged 61 years and over the last twenty years has not reoffended. Whilst the considerable delay in sentencing is a relevant consideration on sentence, I accept the Crown submission that for the whole of that period he has escaped justice for decades and enjoyed a life free from opprobrium or punishment for his crime. This is not a case where he has been left in any state of uncertain suspense whilst awaiting a sentence as there was no complaint by the victim and no police investigation during that time.

86. Given the long history of the offending and the offender’s underlying mental health issues and cognitive impairment, I find that he has guarded prospects of rehabilitation. I accept however the opinion of Dr Furst that his prospects of recidivism are low given his age and the fact that he has not offended during the twenty years prior to his arrest.

87. I have taken into account the maximum penalty of life imprisonment as a guidepost in the sentencing process. Notwithstanding that the offending occurred before the amendment to s66EA, on 1 December 2018, the maximum penalty prescribed by that amendment applies – see Xerri v R (2021) A Crim R 355); [2021] NSWCCA 268.

88. I have also taken into account the Victim Impact Statement which was read in court on behalf of the victim. It constituted a poignant example of the profound and significant harm caused by child sexual offences. It is clear that such offending has profound and lifelong deleterious effects on victims – see R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 at [110].

89. I have also taken into account pursuant to s66EA(8) the maximum penalties for each of the unlawful acts for equivalent offences engaged in by the offender during the period that the unlawful sexual relationship maintained. Those acts consisted of offences to ss61M(1) and (2), s61O(2), s66A and s66C(2), the maximum penalties for which are set out in [47] above.

90. I am satisfied pursuant to s5 of the CSPA, having considered all possible alternatives, that no penalty other than imprisonment is appropriate in this case. I make a finding pursuant to s44(2) of the CSPA of special circumstances given the mental health and cognitive impairment issues suffered by the offender together with the impact of the COVID-19 pandemic on the prison population. I therefore intend to vary the statutory ratio between head sentence and non-parole period.

91. Having regard to the objective seriousness of the offending, its duration, the aggravating and mitigating factors set out above together with the subjective features of the offender, I find that an appropriate starting point for sentence would be a term of imprisonment of 16 years. Discounted by 45% as outlined above I intend to impose a head sentence of 8 years and 9 months with a non-parole period of 5 years and 6 months commencing 2 May 2021 and terminating on 1 November 2026. The balance of term will be a period of 3 years and 3 months commencing on 2 November 2026 and terminating on 1 February 2030.

Orders

92. I hereby make the following orders:-

1. You are convicted of the offence of maintain unlawful sexual relationship with child pursuant to s66EA of the Crimes Act 1900.

2. I sentence you to a non-parole period of 5 years and 6 months commencing on 2 May 2021 and terminating on 1 November 2026.

3. The balance of the term will be a period of 3 years and 3 months commencing on 2 November 2026 and terminating on 1 February 2030.

4. Your parole eligibility date will be 1 November 2026. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

**********

Decision last updated: 17 February 2023