WP v The King

[2024] NSWCCA 77

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

WP v R [2024] NSWCCA 77

Hearing dates:

10 April 2024

Date of orders:

22 May 2024

Decision date:

22 May 2024

Before:

Payne JA at [1];
Mitchelmore JA at [2];
Wilson J at [3]

Decision:

(1) Leave to appeal on grounds 1, 2, and 3 is granted;
(2) The appeal is dismissed.

Catchwords:

CRIME – appeals – sentence – where applicant pleaded guilty to multiple child sex offences and offences of physical assault after one day of trial – sentencing judge applied no discount in relation to one count – error conceded – error as to maximum penalty and standard non-parole period also conceded – question of whether any lesser sentence should be imposed – grave course of offending over many years – multiple child victims

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Gurin v R [2022] NSWCCA 193

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Panetta v Regina [2016] NSWCCA 85

R v Smith [2007] NSWCCA 138

Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3

Turnbull v R [2019] NSWCCA 97

Category:

Principal judgment

Parties:

WP (Applicant)
Rex (Respondent)

Representation:

Counsel:
L Hutchinson (Applicant)
M England (Crown)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for the Director of Public Prosecutions NSW (Crown)

File Number(s):

2019/00323787

Publication restriction:

Statutory non-publication order in relation to complainants

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

09 February 2023

Before:

Huggett DCJ

File Number(s):

2019/00323787

JUDGMENT

1. PAYNE JA: I have read the judgment of Wilson J in draft and agree with her Honour’s reasons and the orders proposed. The offending conduct took place over a period of about 18 years. Gravely serious offences were committed against six children during that time. Despite the errors the sentencing judge was inadvertently led into by the parties below, and the very capable submissions of counsel for the applicant in this Court, having regard to all of the evidence and the gravity of the offending conduct, no lesser sentence is warranted in law.

2. MITCHELMORE JA: I agree with the reasons of Wilson J and with the orders her Honour has proposed.

3. WILSON J: The applicant, whose name must be anonymised to protect his victims, as required by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), seeks leave to appeal to this Court against the sentence imposed upon him in the District Court by her Honour Judge Huggett (as the Chief Judge then was) ^[1] . The aggregate sentence of 28 years, with a non-parole period (“NPP”) of 20 years, encompassed a large number of offences committed between July 1995 and October 2019. Save for one charge, each is an offence committed against one of six children; three of the children were the applicant’s stepchildren, and three his natural children. The remaining offence is one of possessing child abuse material.

   1. Her Honour Justice Huggett will be referred to as she was at the relevant time throughout this judgment.

4. The applicant was arrested and charged on 16 October 2019. He entered pleas of not guilty to all charges and, on 18 November 2020, he was committed to the District Court for trial. At his first appearance before that court the applicant was arraigned and entered pleas of not guilty to each count. His matter was listed for trial in August 2021; it was not able to proceed on that date due to the suspension of jury trials during the COVID-19 pandemic. A fresh trial date of 23 May 2022 was fixed, and the applicant was arraigned before the jury panel on that day upon an indictment containing 41 counts. He entered pleas of not guilty to 38 of the 41 counts, pleading guilty to counts 10, 39, and 41. His trial before her Honour and a jury of 15 began.

5. The first witness in the Crown case was KG. At the time when the applicant began to sexually abuse KG, his stepson, KG was about 6 years of age. KG commenced his evidence before the jury on 26 May 2022. He gave the bulk of his evidence in chief over a period of almost three hours, before the proceedings concluded for the day. He did not resume his evidence as the applicant raised the possibility of entering pleas of guilty. The trial was adjourned whilst the Crown and the applicant discussed the resolution of the matter. On 30 May 2022 the applicant was again arraigned, with pleas sought to twelve of the 38 counts on the indictment to which the applicant had previously pleaded not guilty. He entered pleas of guilty to counts 1, 13, 16, 17, 20, 21, 22, 25, 27, 32, 35, and 38, adding those pleas to the pleas of guilty entered before the jury panel to counts 10, 39 and 41. Counts 2 – 9 were each brought in the alternative to count 1, and no plea was required. With respect to the remaining 18 counts, the applicant acknowledged his guilt for each offence so that they could be dealt with (on a number of Form 1 documents) by her Honour pursuant to s 33 of the Crimes (Sentencing Proceedings) Act 1999 (NSW).

6. Evidence and submissions on sentence were heard by the court on 30 May 2022 and 4 November 2022 with sentence imposed on 9 February 2023. The details of the offences – each of which is an offence contrary to the Crimes Act 1900 (NSW), the victim of it (identified by pseudonym), the maximum penalty, any standard non-parole period (“SNPP”) that is relevant, and the sentence indicated by her Honour for each, are set out below.

Count	Offence and Victim	Maximum penalty	Indicative sentence
1	Persistent sexual abuse of a child s 66EA(1), KG	Life imprisonment	18 years imprisonment
10	Assault occasioning actual bodily harm s 59(1), TG	5 years imprisonment	2 years imprisonment, taking into account count 12
11	Common assault s 61, TG	2 years imprisonment	Taken into account on a Form 1 to count 16
12	Common assault s 61, KG	2 years imprisonment	Taken into account on a Form 1 to count 10
13	Sexual intercourse with a child under the age of 10 s 66A, TG	20 years imprisonment	8 years imprisonment, 5 years NPP, taking into account counts 24 and 26
14	Common assault s 61, TG	2 years imprisonment	Taken into account on a Form 1 to count 16
15	Common assault s 61, TG	2 years imprisonment	Taken into account on a Form 1 to count 16
16	Assault occasioning actual bodily harm s 59(1), TG	5 years imprisonment	3 years imprisonment, taking into account counts 11, 14 and 15
17	Aggravated indecent assault (under authority) s 61M(1), JP	7 years imprisonment	2 years imprisonment, 15 months NPP, taking into account count 36
18	Incite a child under 16 years to commit an act of indecency with another in circumstances of aggravation (under authority) s 61O(1), MG	5 years imprisonment	Taken into account on a Form 1 to count 22
19	Incite a child under 16 years to commit an act of indecency with another in circumstances of aggravation (under authority) s 61O(1), MG	5 years imprisonment	Taken into account on a Form 1 to count 22
20	Incite child under 16 to commit act of indecency within circumstances of aggravation (under authority) another s 61O(1), TG	5 years imprisonment	8 years imprisonment
21	Incite child under 16 to commit act of indecency within circumstances of aggravation (under authority) another s 61O(1), TG	5 years imprisonment	2 years imprisonment
22	Sexual intercourse with a child between 10 and 16 and under authority s 66C(2), MG	10 years imprisonment	5 years 6 months imprisonment, taking into account counts 18 and 19
23	Common assault s 61, WMP	2 years imprisonment	Taken into account on a Form 1 to count 32
24	Aggravated indecent assault s 61M(1), TG	7 years imprisonment; SNPP 5 years	Taken into account on a Form 1 to count 13
25	Attempt to have sexual intercourse with a child between 10 and 14 in circumstances of aggravation (under authority) s 66D, TG	20 years imprisonment	10 years imprisonment
26	Sexual intercourse with a child between 10 and 14 in circumstances of aggravation (under authority) s 66C(2), TG	20 years imprisonment	Taken into account on a Form 1 to count 13
27	Attempt to have sexual intercourse with a child between 10 and 14 in circumstances of aggravation (under authority) s 66D, TG	20 years imprisonment	9 years imprisonment
28	Incite child under 10 years to commit act of indecency with another in circumstances of aggravation (under authority) s 61O(2), WMP	7 years imprisonment	Taken into account on a Form 1 to count 35
29	Incite child under 10 years to commit act of indecency with another in circumstances of aggravation (under authority) s 61O(2), WMP	7 years imprisonment	Taken into account on a Form 1 to count 35
30	Assault occasioning actual bodily harm s 59(1), WMP	5 years imprisonment	Taken into account on a Form 1 to count 32
31	Assault occasioning actual bodily harm s 59(1), WMP	5 years imprisonment	Taken into account on a Form 1 to count 32
32	Assault occasioning actual bodily harm s 59(1), WMP	5 years imprisonment	2 years imprisonment, taking into account counts 23, 30 and 31
33	Incite child under 16 years to commit act of indecency with another in circumstances of aggravation (under authority) s 61O(2), WMP	5 years imprisonment	Taken into account on a Form 1 to count 35
34	Incite child under 16 years to commit act of indecency with another in circumstances of aggravation (under authority) s 61O(2), WMP	5 years imprisonment	Taken into account on a Form 1 to count 35
35	Sexual intercourse with a child between 10 and 14 in circumstances of aggravation (under authority) s 66C(2), WMP	20 years imprisonment	9 years imprisonment, 6 years NPP, taking into account counts 28, 29, 33, and 34
36	Assault occasioning actual bodily harm s 59(1), JP	5 years imprisonment	Taken into account on a Form 1 to count 17
37	Incite child under 16 years to commit act of indecency with another in circumstances of aggravation (under authority) s 61O(2), EP	5 years imprisonment	Taken into account on a Form 1 to count 38
38	Sexual intercourse with a child between 10 and 14 in circumstances of aggravation (under authority) s 66C(2), EP	20 years imprisonment	7 years imprisonment, NPP 4 years 6 months, taking into account counts 37 and 40
39	Common assault s 61, EP	2 years imprisonment	12 months imprisonment
40	Common assault s 61, EP	2 years imprisonment	Taken into account on a Form 1 to count 38
41	Possess child abuse material s 91H(2)	10 years imprisonment	6 months imprisonment

7. On 21 February 2023, the applicant lodged a Notice of Intention to Appeal against the aggregate sentence imposed for these offences; his subsequent application for leave to appeal, advancing two grounds, was filed within time. On 9 April 2024, after receiving the Crown’s written submissions and a subsequent communication from the Court (to both parties) regarding count 20, he filed amended grounds of appeal, abandoning one ground and seeking to add two more. The amended grounds are as follows:

“1. The sentencing Judge erred in affording the applicant no discount for his plea of guilty in respect of Count 1.

2. The sentencing Judge erred in having regard to the wrong maximum penalty for Count 13, and to inapplicable standard non-parole periods for counts 13, 17, 26, 35 and 38.

3. The sentencing Judge erred in nominating an indicative sentence of 8 years for count 20 when the maximum penalty applicable to that offence at the time was imprisonment for 5 years.”

8. Having properly and fairly drawn the attention of the applicant and the Court to the error now raised by ground 2 in its written submissions, the Crown does not argue against a conclusion that error can be established on that ground and on ground 3. The Crown further concedes that there was error in the failure to award a discount on the indicative sentence announced for count 1, as ground 1 complains. The Crown’s concessions should be accepted; there was error, and the errors as to discount and statutory penalties caused the sentencing proceedings to miscarry. Whilst the error that is the subject of ground 1 could arguably be mathematically corrected by this Court without need to re-exercise the sentencing discretion, the same approach does not apply to the errors referred to in grounds 2 and 3 and the Court must undertake the sentencing exercise afresh, as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The question is whether, in so doing, this Court is of the opinion that some other sentence is warranted in law: 6(3) Criminal Appeal Act 1912 (NSW).

The Evidence before the Sentencing Court

9. The Crown case was in part comprised of a statement of facts which were agreed between the parties (and later substituted by an amended version of the original document). Although the facts are extremely disturbing, it is necessary to refer to them in some detail for the purpose of determining whether some other sentence should be imposed upon the applicant. It is noted that the agreed facts do not place the events in strictly chronological order, and nor are the charged offences described sequentially. The facts set out both charged and uncharged conduct, the latter being relied upon to place the former in context, and demonstrate that the charged offences were not isolated instances.

Agreed Facts

Background

10. The applicant entered a de facto relationship with ME in approximately 1995. The applicant moved into ME’s home, which she shared with her three children from a previous relationship, MG, KG and TG. MG was born in 1988, KG in 1989 and TG in 1992, and were about 7, 6 and 3 years old respectively at the time the applicant commenced a relationship with their mother. ME and the applicant went on to have three children of their own: JP born in 1996, WMP born in 1998, and EP born in 2001. It is the six children who were the victims of the applicant’s offending. The offences against the children collectively occurred over a prolonged period of about 18 or 19 years.

11. When the applicant started living with his stepchildren, he insisted that they refer to him as “Dad”. He set very strict rules within the house and punished any perceived breach of the rules with acts of violence. The children were regularly hit and punched, and the applicant frequently used his belt, which he named “George”, against them. The children became used to being threatened by the applicant, who told them that he would get "George" if they misbehaved. The belt was fitted with a large metal buckle which the applicant used to strike the children. Beatings with the belt were so frequent that the children took to wearing multiple pairs of pants to pad their bottoms, in an attempt to reduce the pain inflicted when hit with the belt buckle.

12. Violence between the children was also encouraged by the applicant. A minor disagreement between the children often resulted in the applicant forcing them to fight each other, as he sat on the front veranda, encouraging the blows. The applicant required the fights to continue until one of the children was on the ground and unable to get up.

13. Other punishments included frequent “groundings”, wherein the children were locked in their rooms for periods of time from days to weeks and months. The applicant fitted locks to the outside of the bedroom doors which allowed him to secure the rooms, preventing the children from leaving. The interiors of the bedrooms were very basic – furniture was minimal and there was nothing to keep the children occupied. During those periods when the children were locked in their rooms, they had to ask the applicant to open the bedroom doors so that they could use the bathroom. On occasion, he refused to let them leave, and the children were forced to urinate out of their bedroom windows. KG, who was imprisoned in his room frequently, was given a bucket to use as a toilet.

14. Food was used as a commodity in the house, and the applicant controlled access to it, securing it in his bedroom. The children often went without food for long periods of time, while the applicant would enjoy take away food which he ate in front of them. Because of their hunger, the children sometimes went into the applicant’s bedroom in his absence and took food to eat. When the applicant discovered that the food had been taken, the child would again be “grounded”. This became so common that the children would take additional food on those occasions they could get it, hiding it in their bedrooms in readiness for extended periods locked in their rooms without food.

15. The applicant used drugs and frequently did so in the house. The applicant, and on occasions his friends, would smoke cannabis in the loungeroom, which the applicant fitted with locks to prevent anyone from entering when he was inside.

16. Over the period of the offences the family lived at a number of addresses. The first offence, count 1, began at a house the family occupied at Ambarvale from 12 July 1995 to 16 July 1997, continuing with each change of residence.

The Offences

17. Count 1 is an offence of persistent sexual abuse of a child contrary to s 66EA(1) of the Crimes Act, charged as occurring in the period 1995 to 2005. The victim of it is KG. When KG was about 6 or 7 years old, there was an occasion when he was at home in the loungeroom with his brothers. The applicant was at home, watching television, but KG’s mother was out. The applicant had a packet of biscuits which he shared with his stepsons. When there was one biscuit left, the applicant left the loungeroom. KG wanted the biscuit and went to find the applicant, who was in his bedroom. He asked for the biscuit. The applicant said something like, "What are you going to do for me?" KG said, "I just want the biscuit”, but the applicant replied, "Well you need to do something for me''.

18. The applicant, who was wearing football shorts at the time, lifted one side and exposed his penis to KG. He told the boy, "You need to suck this". The applicant placed his penis in KG’s mouth for a short period of time. KG could not recall whether the applicant’s penis was erect at the time, but he knows the applicant did not ejaculate. The payment for this act was the remaining biscuit. The applicant told KG he was not to tell anyone or he would never get a treat again. KG returned to the loungeroom. He said nothing about what had occurred.

19. From when KG was aged 8 or 9 years old the sexual abuse became more frequent. KG was frequently required to perform fellatio on the applicant, usually more than once each week. He was often in trouble with the applicant and locked in his room, having to do “a favour” for the applicant to be allowed out of his room. The favour was to fellate the applicant, until the applicant ejaculated, into KG’s mouth or a towel.

20. Around this time, the applicant started showing KG pornography when they were alone. The applicant would take KG to the loungeroom and lock the door. He would then play videos showing adult men and women performing sexual acts on each other. He also showed KG printed pornographic images. After viewing the pornography, the applicant’s penis would become erect and he would require KG to perform fellatio on him. Sometimes the applicant would take the boy’s penis into his mouth, before telling him, “Now you owe me”. KG was then required to perform fellatio on the applicant, until the applicant ejaculated.

21. When KG was aged 10, 11 or 12 years of age, he was locked in his bedroom by the applicant for a period of time he believes to have been about 6 months. On a day in that period, the applicant removed KG from his bedroom and drove him alone to an area of bushland. The applicant drove through the bush until he brought the vehicle to a stop in a secluded area. The applicant then told KG, "Get out, we don't want you anymore, your mum and I don't want you anymore, you never do anything right, you can live in the bush now". KG was upset and frightened that he was going to be left in the bush; he refused to get out of the car.

17. The applicant again told KG to get out of the car and the boy did as he was told. The applicant said, "If you want to get back in this car, you know what you need to do". KG knew that this meant he had to perform oral sex on the applicant. The applicant got out of the car and walked around to KG. The applicant pulled down his pants and exposed his penis, before placing it in KG’s mouth. KG performed fellatio upon the applicant until he ejaculated in KG’s mouth. The boy was allowed back in the vehicle and the applicant drove them home.

18. KG later told authorities that, from when he was aged 12 or 13 years old and living at Airds, the applicant began to subject him to acts of anal intercourse. On the first such occasion the applicant took KG into the kitchen and made him undress. With the applicant standing behind KG, the boy was made to bend over the kitchen table. As he was bent over, the applicant forced his penis into KG’s anus, causing him immense pain. The applicant did not ejaculate.

19. Acts of fellatio continued throughout this period, with the applicant entering KG’s bedroom at night when he was alone and performing fellatio upon the boy. Thereafter the applicant told KG that he “owed” the applicant and forced him to fellate the applicant. This act was so repetitive that KG became a light sleeper, waking as soon as he heard a noise, or a light was turned on nearby. In an attempt to protect himself, KG began tucking his bed sheets and blankets tightly around his body at night, hoping that this would prevent the applicant from being able to abuse him. KG recalls that this was successful on some occasions, with the applicant leaving the bedroom when he could not readily pull the bedclothes down.

20. In the period January 2002 to May 2005 when KG was 11 or 12 years old, there was an occasion when the applicant was performing fellatio upon him, and he felt the need to urinate. He told the applicant he needed the toilet but the applicant told him "it was normal" and that he was going “to come". The applicant continued to perform fellatio upon KG until KG urinated. The applicant ran to the bathroom dry-retching.

21. In this period the applicant began placing a chair in front of the television and making KG sit and watch pornography with him. The applicant would leave the room to “make a coffee” and return to see if KG had an erection from watching the material. The applicant would perform fellatio upon KG as they watched the pornography, and occasionally KG would ejaculate. KG was then made to "return the favour” and perform fellatio upon the applicant until he ejaculated.

22. On another occasion around this time, the applicant took KG into the kitchen of the home. The applicant was wearing no pants and laid on his back on the kitchen table. The applicant maneuvered his body to try and make it possible for KG to penetrate his anus, however KG was unable to do so as he was unable to get an erection.

23. On one occasion when the applicant required him to do so KG was able to penetrate the applicant’s anus. When he withdrew his penis from the applicant’s anus he saw that it was covered in faecal matter. Sickened by the incident, KG never forgot it. The applicant required KG repeat such conduct on occasion. In July 1996 ME gave birth to her and the applicant’s son, JP. JP was diagnosed with a mild form of autism.

24. In July 1997 the family moved to an address at Eagle Vale. During the period the family lived at Eagle Vale, from July 1997 to January 2002, ME and the applicant had two more children. Their second son, WMP, was born in April 1998, and their daughter EP was born in October 2001.

25. At Eagle Vale, as at Ambarvale, the applicant fitted locks to the outside of the bedroom doors and the interior of the loungeroom door.

26. Count 10 is an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. It occurred at the Eagle Vale house.

27. When the family lived at Eagle Vale, KG was constantly in trouble with the applicant and was frequently locked in his bedroom. On one occasion he had been grounded and locked in his bedroom for an extended period of time. His brothers MG and TG shared the room directly next to his with an interior wall separating them. In this house the bedroom occupied by MG and TG had a television which they watched while sitting on their bed.

28. Locked in his room with nothing to occupy his time, KG used a pair of scissors to create a small hole in the wall lining dividing his room from his brothers’, so that he could see the television in the next room. He could lay on his bed with one eye against the wall watching television through the small hole. His brothers helped him by sitting either side of the hole, allowing KG to see the screen. Knowing he would be severely disciplined if the applicant found the hole, KG used a Band-Aid to cover the hole in the wall. When using the hole to watch television KG would listen for the sound of the loungeroom door being unlocked, which was a sign that the applicant was coming towards the bedrooms. He would apply the Band-Aid to the wall and, in this way, the hole in the wall went undetected by the applicant for some time.

29. One night whilst KG was in his room in darkness, the applicant entered it. In the neighbouring bedroom MG and TG were watching television, and the light emanating from the television glowed against the Band-Aid that was concealing the peep hole. The applicant saw it and became enraged. He went and got his belt and, returning to KG’s bedroom, began striking KG on the buttocks. The applicant noticed KG was wearing a number of pairs of pants – the children’s only defence against these assaults – and this angered him even further. He removed KG's pants and began striking him using the belt on the child’s bare skin. This left black bruising to KG’s buttocks with the outline of the belt and buckle visible. TG also recalls this incident occurring. KG told his mother what had happened, and she said it would never happen again. The applicant subsequently spoke to KG and apologised, saying, "You know I didn't mean to hit you that hard, but you made me do it".

30. At this second Eagle Vale address the applicant continued to sexually assault KG, with increasing frequency, and began sexually abusing TG.

31. TG was aged between four and nine when the family lived at this address. The sexual abuse of both boys involved frequent acts of oral intercourse. These acts often occurred in the context of the boys being locked in their rooms.

32. Sexual abuse was used by the applicant against TG as a way in which the boy could secure release from his bedroom. Like KG, TG was frequently locked in his bedroom for extended periods of time at the Eagle Vale house, on occasions for periods of time of as much as three months. In these long periods of detention, TG would become desperate to be let out of his room to play outside with his brothers. The applicant adopted a practice of sliding a note under TG’s door which read, “You know what you've got to do to get out of trouble. Go into the room”. TG came to know exactly what the note meant: if he went to the applicant’s bedroom and performed fellatio upon the applicant, his confinement in his room would end.

33. On some occasions, the note the applicant slid under TG’s door would offer a “yes or no” option. TG had to circle his response and slide the note back under the door to the applicant. If TG indicated “yes”, he would be let out of the room and would go to the applicant’s room to perform fellatio on the applicant. If the boy circled “no”, his imprisonment would continue, and TG would be left in his room. Even though he sometimes chose “no”, eventually TG would become so desperate to leave his bedroom that when another note was slid under his door, he would respond “yes”.

34. Count 13 is an offence of sexual intercourse with a person under the age of 10 contrary to s 66A of the Crimes Act. It occurred at the same time as another assault that is encompassed by count 1. These connected assaults occurred at a time when TG was aged 7, 8, or 9 years of age and KG was 10, 11, 12 or 13 years of age. On an occasion when the boys had both been grounded by the applicant and locked in their bedrooms, the applicant released TG and told him to go to the applicant’s bedroom. With the applicant seated on the bed TG knew what would follow. He began crying.

35. The applicant got up and left the room. He went to KG’s room and released him, directing him to the applicant’s room. In the bedroom the boys sat together on the applicant’s bed. The applicant required each boy to perform fellatio upon him, in the presence of the other. After this, TG told the applicant he was thirsty, and the applicant offered to get him a glass of milk. The applicant left the room, returning with a glass which he gave to TG. The applicant was laughing. TG looked at the contents of the glass and realised he had been given semen, with which he was familiar by that time, and not milk.

36. Counts 11 and 12 are offences of common assault contrary to s 61 of the Crimes Act. These offences were committed on TG and KG respectively, at a time when TG was 8 or 9 years old, and KG aged 11, 12, or 13 years of age. The boys were playing a game in the loungeroom of the home and the applicant, who had been asleep in his bedroom, was woken by the noise. He went into the loungeroom and dragged TG to a bedroom, where he repeatedly slapped TG to the face. This went on for an extended period, causing a ringing sensation in TG’s ears. KG saw the applicant doing this and tried to help his younger brother by jumping on the applicant’s back to divert him from hitting the younger boy. KG recalls that he ended up on his back on the bed with the applicant standing over him repeatedly punching his body with a closed fist.

37. Counts 14 and 15 are further offences of common assault, that occurred when TG was about 9 years old. On two separate days TG, who was hungry, went into the applicant’s bedroom where the applicant kept the household food and took some of it to eat. After each occasion the applicant discovered that the food had been taken by TG and punished him. On each occasion the punishment was to take the boy to the kitchen, where the applicant turned on the stove top, causing the element to heat up, and held TG’s palm at or on the hot element, causing him pain.

38. Count 16, an offence of assault occasioning actual bodily harm, occurred when the applicant caught TG taking food on a third occasion. TG, aged about 9 years, went to the applicant’s room and took some breakfast cereal that the applicant had concealed in a cupboard. When the applicant found out he again took TG to the kitchen and turned the stove top element on. This time, the applicant held TG’s hand down on the hot stove top element for an extended period. TG could smell his hand burning and felt extreme pain. He was screaming as the applicant released his hand, leaving the child to fall to the floor in pain.

39. In January 2002 the family moved to an address at Airds, remaining there until February 2015. The abuse of the children by the applicant continued at this address.

40. Counts 20 and 21, offences of inciting an aggravated act of indecency with a person under 16 years and under authority, contrary to s 61O(1) of the Crimes Act, occurred on one occasion when TG was aged 9 or 10. KG was assaulted at the same time, when he was 12 or 13 years old. The conduct to which he was subjected forms part of count 1. The applicant took the boys to the loungeroom and made each perform fellatio on the other as he watched. He then required each to anally penetrate the other in turn, again as he watched, although neither boy was able to complete the act.

41. Counts 18 and 19 are also offences of inciting an aggravated act of indecency with a person under 16 years and under authority, contrary to s 61O(1), committed on these occasions against the applicant’s stepson, MG. At this time, in the period January 2002 to July 2003, MG was aged 13 or 14 years old. MG discovered the applicant’s pornography collection and sometimes took DVDs from a cupboard and watched them in his room. The applicant became aware of this and confronted MG. Instead of being angry, as MG feared he would, the applicant told him, "Don't worry, I've gotta give you the talk about being a teenager". The applicant referred to “full moons” and asked MG, "So you know about women's body parts?" He offered to show him what a full moon was, showing MG a series of pictures on the computer of naked women bending over. The applicant told MG they should watch the videos.

42. The applicant and MG went to the loungeroom and the applicant played a pornographic DVD on the television. The applicant, who was wearing only a dressing gown, exposed his penis and began masturbating. MG, obliged to watch, felt uncomfortable. The applicant told him it was fine and that they were grown men. The applicant told MG, “Just show me how you do it then I'll leave you alone". MG exposed his penis and began masturbating, despite his discomfit. This continued for a couple of minutes with the applicant watching MG and continuing to masturbate himself. The applicant asked, "Can I give you a hand?" but MG refused, leaving the room soon after.

43. About two weeks after this incident the applicant asked MG if he wanted to come into the loungeroom and play the PlayStation. MG went into the loungeroom where the applicant was alone. The applicant told him he would show him a video before they played PlayStation and, locking the door, began playing a pornographic video on the television. The applicant explained the acts depicted, telling MG how good “head jobs” were. The applicant told MG he would show him how it was done, but MG refused. The applicant told MG, "You won't get a game on the Play Station until you let me show you". After a number of demands of this nature MG pulled his pants down, exposing his penis. The applicant knelt in front of MG and placed MG’s penis into his mouth. He continued despite MG’s attempts to push him away and requests that he stop. This act was charged as count 22, an offence of sexual intercourse with a child between 10 and 16 years and under authority contrary to s 66C(2) of the Crimes Act.

44. Count 25 is a charge of attempted sexual intercourse with a child aged between 10 and 14 years in circumstances of aggravation, contrary to s 66D. TG, who was aged 12 years between August 2004 and 2005, had been “grounded” by the applicant and was at home alone with him. The applicant told TG he was going to “stick” his penis into TG’s anus and instructed him to bend over a dining room chair. The applicant tried to force his erect penis into TG’s anus but was unable to complete the act. TG, who was in considerable pain, began to cry. The applicant desisted.

45. Count 24, an offence of aggravated indecent assault contrary to s 61M(1), and count 26, an offence of aggravated sexual intercourse with a person aged between 10 and 14 years contrary to s 66C(2) of the Crimes Act, and count 27, an attempt to commit an offence contrary to s 66C(2), all occurred at about this time, when TG was aged around 12. These offences occurred before he started high school. On this occasion the applicant told TG he was to anally penetrate the applicant. The applicant began to fondle TG’s penis (count 24), and then performed fellatio upon him (count 26). He then required the boy to penetrate his, the applicant’s, anus, but TG was unable to do so (count 27).

46. For about 2 years around this time TG was subjected to frequent acts of fellatio by the applicant, or made to watch pornography with him. On two occasions TG saw the applicant watching footage of the applicant performing sexual acts upon TG. He was made to watch the recordings, with the applicant asking him if he “liked” it.

47. In 2004, WMP, who was then aged 5 or 6 years, was suspended from school for a short period. His mother collected WMP from school and took him home, where he was confronted by the applicant, who asked him what he had done. When WMP replied that he had been suspended, the applicant grabbed the boy by his shirt and threw him against the loungeroom wall. He did this twice more, on each occasion holding WMP on the floor with his foot against his head or stomach before picking him up and again throwing him against the wall. WMP was sent to his room but the applicant followed some minutes later, and again took hold of WMP, throwing him against the wall. This conduct was charged as count 23, an offence of common assault contrary to s 61 of the Crimes Act.

48. In mid-2005 when WMP was about 7 years old, he was again suspended from school for a short period. He was alone at home with the applicant during the suspension. On a day in this period, the applicant called WMP from his bedroom into the loungeroom and questioned him about his knowledge of girls. When WMP did not respond, the applicant sat the child at the computer desk in the corner of the dining room and began to show him pornographic images, including characters from the cartoon programme “The Simpsons” performing sexual acts. This conduct was charged as count 28, an offence of inciting an act of indecency in circumstances of aggravation contrary to s 61O(1).

49. In 2006 when WMP was 7-8 years old, he and a girl of his age were found naked in a neighbour's cubby house. This was reported to the applicant who later questioned WMP about what he had been doing. The applicant again took WMP to the computer desk and brought up the same pornographic material to show him. The applicant asked WMP if "things were changing down there?" and whether “it” was “getting harder?" The applicant told the boy he could “touch it” if he wanted to, encouraging him to do so and not be shy. WMP exposed his penis, holding it in his hand. He did not know what to do and said so when the applicant asked him. The applicant moved his hands in a motion simulating masturbation, and WMP copied what he saw. The applicant stood behind WMP and watched over his shoulder, whilst pornographic images played on the computer screen. After a time the applicant allowed WMP to go outside and play. He warned him not to tell anyone. This incident was reflected by count 28, an offence of incite act of indecency in circumstances of aggravation, child under 16 years and under authority, contrary to s 61O(1).

50. Count 29 was another such offence. It reflected an incident in the period mid-2006 and early 2007 when WMP was at home from school, sick. When ME was not at home the applicant called out to WMP, who was in his bedroom, to ask if he wanted to see “the pictures” again. WMP joined the applicant, where he sat on a chair in front of the computer and watched the applicant open the same folder containing the pornographic material he had previously seen. WMP noticed that the applicant had created a new slide show containing only the images the boy had stopped to look at on the last occasion. Knowing that the applicant expected him to masturbate, WMP exposed his penis from his pants and began masturbating. The applicant instructed WMP to "go faster'' and then to "slow down". This occurred for a period of between 15 – 20 minutes with the applicant watching throughout. After a time the applicant took WMP to the loungeroom and gave him a chocolate. He told WMP not to tell anyone, especially his mother.

51. Count 30 is an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. It occurred when WMP was aged 9 or 10 and after his aunt, the applicant’s sister, found him watching pornography on a family computer and masturbating, as the applicant had showed him. His aunt reported her discovery to the applicant. Later that evening, WMP was called to the loungeroom by his mother and the applicant. On entering the room WMP was told to lock the door and did so. The applicant told WMP that his actions were wrong and that he was grounded. The applicant then struck WMP to his bare buttocks three times, using his belt and buckle. The force of the blows caused bruising, which persisted for over a week.

17. Count 31 is another such offence. Sometime after the commission of count 30 WMP was again suspended from school. His mother collected the boy from school, telling him that the applicant was at home waiting for him and that he should apologise for his behaviour. When he arrived home WMP saw the applicant sitting on the lounge with a pair of steel capped work boots next to him on the floor. The applicant questioned WP about his suspension, throwing a cigarette lighter at him when the applicant believed that he was “smirking”. When the boy ducked, such that the lighter did not strike him, the applicant became angry and picked up a work boot and threw it at WMP. The boot struck the child in an eye and he began crying. The applicant told him to “stop being a sook” and sent him to his room.

18. The impact from the boot left WMP with a black eye which his mother told him he should explain to teachers at school on his return to classes as having been caused by a fall. WMP had to meet with the principal of his school on returning and, in the presence of his mother, told the principal he had fallen. After his mother left WMP told the principal about the boot being thrown at him. Contact was made by the school with ME and she returned to collect WMP and take him home. At home, the applicant told the boy that if he was taken away, he would be put into foster care and never see his siblings again. The applicant sent WMP to his room and made him repeatedly write, “I will not tell lies”. The following day, WMP returned to school; he did not mention the true cause of his black eye again.

19. A further incident of violence to WMP, reflected by count 32, occurred in the period 2008 – 2011. He and JP had been fighting; the applicant approached them and grabbed WMP by his throat, forcing his head against the wall. The force was such that a hole was made in the wall lining and WMP was caused pain. JP, who saw what the applicant did, went to WMP’s aid, and pushed the applicant against the wall, enlarging the hole. After this incident, the applicant forced WMP and JP to fight in the backyard, giving them boxing gloves and forcing them to fight until one of the boys was able to draw blood from the other.

20. Counts 33, 34, and 35 all relate to a single incident when WMP was aged about 13 years and at home alone with the applicant. The applicant asked WMP, "How are things going down there?" WMP knew the applicant was referring to his penis and told the applicant he was now able to ejaculate. The applicant asked WMP to show him, and took him to the computer, where he showed the boy a pornographic video. WMP began masturbating and his penis became erect (count 33, an offence of inciting an act of indecency in circumstances of aggravation, the child being under 16 years and under authority, contrary to s 61O(1)). The applicant asked WMP if he needed help ejaculating and offered to show the boy. He then exposed his own penis and told WMP to take hold of it (count 34, a charge in the same terms as count 33). WMP handled the applicant’s penis, before the applicant took him to the kitchen. He told WMP that he could help him ejaculate and, warning him not to tell anyone, the applicant knelt in front of WMP and took the boy’s penis in his mouth (count 35, an offence of aggravated sexual intercourse with a person aged between 10 and 16 years contrary to s 66C(2)).

21. The applicant continued until WMP ejaculated into the applicant’s mouth. The applicant spat the semen into a towel and said, "Tell your friends you got a head job, but tell them it was your cousin that did it".

22. At a time when JP, the applicant’s eldest natural child, was under 12 years of age, he was alone in the loungeroom of the home with the applicant. The applicant showed JP animated pornography depicting cartoon characters from “The Simpsons” performing sexual acts. JP was seated on the lounge with his pants down, and the applicant held JP’s penis in his hand, fondling it. This offence was charged as count 17, an offence of aggravated indecent assault contrary to s 61M(1).

23. Count 36 reflects an offence of assault occasioning actual bodily harm contrary to s 59(1), also involving JP. At age 16 JP began playing soccer in an all-age team, which included the applicant, who was also the club president. During the season JP injured his back which required hospital admission. The following week JP was forced by the applicant to play for the team, despite ongoing pain from his injury. When he was unable to run after the ball as told to do by the applicant, the applicant became enraged and ran across the field to JP, grabbing his shoulders with both hands and head butting him twice to his forehead. Two other team members came to JP’s aid and took him from the field to separate him from the applicant.

24. The final offences relate to the applicant’s youngest natural child, his daughter EP.

25. EP had a bedroom to herself. During 2012, when she was about 12 years old and in year six at primary school, she began to feel as if she was being watched at night. She woke on one occasion to see the applicant standing in the doorway of her bedroom staring at her. After this EP began leaving the television on in her room and a light turned on in the bathroom across the hallway from her bedroom, so that the room wasn't in complete darkness at night. When bathing, she often used the bath rather than showering as she felt less exposed to the applicant. About twice a week, the applicant would walk into the bathroom on various pretexts, such as to tell her dinner was ready, and would stand staring at her naked body. These incidents made EP uncomfortable so she began locking the bathroom door to prevent the applicant from entering. A short time later the internal bathroom door lock was removed from the door.

26. Around this time EP noticed a hole in the bathroom wall which allowed a person to look into the bathroom from the backyard. On one occasion when she was in the bath, EP noticed someone looking through the hole. EP quickly got out of the bath, wrapped a towel around herself and went to the bathroom window which she opened to look into the backyard. EP observed the applicant running away from the wall where the hole was located towards the back veranda. From this time on EP would place a laundry basket in front of the hole whenever using the bathroom. The applicant continued entering EP’s bedroom during the night, so she decided to move her bed behind the door to make it more difficult for him to do so.

27. In or around 2013, EP started high school and was made to move from her bedroom to another room in the house for reasons not given to her. During this year EP was suspended from school and was punished by the applicant, who made her bend over a chair whilst he struck her with his belt. There were many such beatings that EP was subjected to, for asserted reasons such as being disrespectful or stealing food.

28. In the second half of 2014 EP was at home alone with the applicant. She asked if her boyfriend could stay over at the house before the family made a move to a regional area of the state. The applicant said, “Go to your room, I'll talk to you in five minutes”. EP went to her room. The applicant came into her bedroom soon after, handing her a piece of paper with instructions to “answer these” and “come out when you're ready”. The applicant then left the room. When EP looked at the paper, she saw a series of questions written there, all of an explicit sexual nature. She was shocked and did not answer the questions. She remained in her room.

29. About 15 minutes later the applicant called out to EP, telling her to come into the loungeroom. She was frightened but did as she was told and went to the loungeroom, where the applicant was seated at the computer. He got up and directed EP to sit down. Footage was displayed on the computer of a naked girl performing a sexual act. The applicant told EP to “watch this and get the concept of masturbation”. The applicant sat on the lounge watching EP as she stared at the screen. Once the footage ended the applicant instructed EP to re-enact what the girl had done, telling her, “Use your fingers, touch it”. EP refused. This conduct was reflected by count 37, an offence of inciting an act of indecency in circumstances of aggravation with a person under 16 years and under authority, contrary to s 61O(1).

30. The applicant told EP to sit on the lounge. He obtained a towel soaked in warm water and then directed his daughter to sit on a reclining chair. EP did as she was told; she was crying. The applicant then removed her pyjama pants and underwear. He told her, “Just be quiet and don't talk, I'm going to show you how to masturbate”. The applicant took the towel and used it to rub EP’s vagina. Then, kneeling next to her, he began touching her vagina. EP continued to cry. The applicant inserted his fingers into EP’s vagina and started moving them in and out. The applicant said, “I'm going to find your G spot” before pushing his fingers deeper into EP’s vagina. This caused EP immense pain; she was crying and telling her father to stop. He continued, berating her for crying. After a time, angered, he stopped and told her to go to her room. This conduct was charged as count 38, an offence of aggravated sexual intercourse with a person aged 10 to 14 years contrary to s 66C(2) of the Crimes Act.

31. The following day the applicant arranged for EP to travel with him in the car to pick up her mother from an event. In a manner that became aggressive he told her not to tell her mother about what had occurred. He said, “If you say anything, anything at all to your mother, I will destroy this family, you will be known as a home wrecker and people will blame you. And if you tell your Mum, you will be motherless, it will end the family and your Mum will kill herself”. EP did not tell her mother about the abuse.

32. On the day prior to the family moving to regional NSW, ME located a small box packed away containing g-string underwear. She questioned EP as to how she came to have the underwear. EP, who had been given the underwear by the applicant, lied to her mother and said they had been given to her with other clothes by a female neighbour. She was upset at having to lie for the applicant and told him and her mother that she did not want to move house. She ran out of the house, chased by the applicant who armed himself with a mop. He threw the mop at his daughter, hitting her in the head. This was charged as count 39, common assault contrary to s 61 of the Crimes Act. EP stumbled but maintained her footing and continued running, chased by the applicant. The applicant caught her nearby and took hold of her hair. The applicant began pulling it and started dragging her back to the house. EP yelled for the applicant to let go of her however he restrained her and kept dragging her, telling her to "get the fuck inside". This act was charged as count 40, another offence of common assault.

Police Investigation

73. On 10 April 2019, KG contacted police to report the assaults upon him by the applicant. An investigation by the Child Abuse and Sex Crimes Squad began.

74. On the morning of 16 October 2019 the applicant was arrested. The applicant was informed of the reason for his arrest before being taken to a nearby police station and entered into custody. He was put in contact with the Aboriginal Legal Service, subsequently telling police he would not be interviewed. He was charged with offences relating to KG, TG, MG, JP and WMP. His home was searched and numerous computers, hard drives, electronic storage devices, video cassette tapes, DVDs and CDs containing child abuse material were seized as a result.

75. EP made a complaint the following day and further charges were laid against the applicant.

76. Investigators commenced a review of items seized during the search warrant at the home of the applicant. Pornographic material consistent with the recordings described by the children were found. Count 41, an offence of possessing child abuse material contrary to s 91H(2) reflected recordings found hidden in a drawer in the applicant’s bedroom. Other material depicted sex scenes between adult “children” having intercourse with their fathers. One recording caught a discussion in which the applicant spoke to MG as a child, saying in part, “You can suck my dick”.

Other material before the Sentencing Court

77. The applicant’s criminal history contained entries for larceny from 1999 and, from 2011, entries recording the imposition of three bonds pursuant to s 10 of the Crimes (Sentencing Procedure) Act for offences of common assault, destruction of property, and contravening an apprehended domestic violence order. There were also entries for some other relatively trivial offending.

78. Three victim impact statements were received by the sentencing court, from KG, MG, and EP. All spoke of the significant psychological impact of the abuse, including intrusive memories, compromised emotions, impaired relationships, lost employment opportunities, and ongoing emotional pain, as well as stress-related physical conditions. All had attempted or considered suicide.

79. The applicant’s case consisted of a psychological assessment report, an affidavit from the applicant, and a file entry from Justice Health. The psychological assessment was conducted by Graeme Randall in readiness for the sentence proceedings. Mr Randall saw the applicant over a two hour period on 6 October 2022, using an audio-visual link to the applicant’s place of custody. At the time the applicant was aged 48 years; he appeared to have no disturbances in mood or cognition and was fully orientated.

80. He gave a history of a positive childhood until his parents separated when he was aged about 10 years. There was no economic deprivation although displays of affection were unusual. Following the breakdown of his parents’ relationship the applicant lived with his mother and step-father; he said his step-father was a harsh disciplinarian, and he perceived the physical punishments meted out to him as abuse. After telling his school principal about the “punishments”, the authorities spoke with his mother and his mother gave him the option of a care home or moving to live with his father. He eventually moved to his father’s home. When living with his father there were no rules imposed upon him. His father and step-mother both used heroin and did so in front of him. He was witness to violence from his father to his step-mother. The household often lacked food as money was used to buy drugs.

81. When the applicant was aged 14 he moved into the home of a 26 year old neighbour, with whom he had a sexual relationship. He remained with the neighbour for 4 years, moving interstate with her. Mr Randall thought that this reported background had likely contributed to his offending behaviour.

82. The applicant returned to NSW when he was 18, living briefly with his father, and then with a succession of romantic partners until he met ME, when he was aged 20.

83. The applicant’s schooling was difficult as he was sometimes the only Indigenous student, and he was bullied. He began fighting with other students and was regularly disciplined at school. He described himself as an exceptional student, but said that his grades declined in high school as he began to truant, missing about half of his classes. He left school soon after commencing Year 10, completing business and Aboriginal studies through TAFE. He also undertook an apprenticeship in spray painting and panel beating and was fully employed from then until age 37, when he was dismissed from his employment. He has not worked since. Until age 37 he also volunteered to coach sport and with various charities. He said he was a social person although he was single at the time of arrest.

84. The applicant described early sexual development, initially with a former partner of his father, and later with other older women. He regarded his relationships as consensual and loving although, as Mr Randall observed, his age at the time these relationships commenced meant that he could not have consented to sexual activity. He began his life with ME at the age of 20 and remained with her until around the time of his arrest. The couple had three children together, at that time all aged in their twenties.

85. The applicant denied using pornography until, in his thirties, he was exposed to it by his “eldest son” (an assertion Mr Randall thought unlikely to be true). He said he used it thereafter. He denied an interest in child abuse material, again asserting that he first viewed it when monitoring his son’s computer usage. He denied any sexual interest in children and displayed no insight into his offending. He claimed that what he had done to his children had been to teach them about sex, as part of a loving relationship. Mr Randall thought the applicant had a poor understanding of what sexual abuse was, and a poor understanding of his own abusive behaviour and sexual interest in children.

86. The applicant acknowledged using alcohol and cannabis from a relatively young age.

87. As to his mental health the applicant said that he had become depressed in 2011 when he was accused of domestic violence offences and spent two months in custody. He was prescribed medication but took it for a short period only. Since entering custody charged with the present offending, he had again been diagnosed with depression, and claimed to experience visual hallucinations. His physical health was good.

88. Whilst the applicant acknowledged having entered pleas of guilty, Mr Randall observed:

“His description of the physical abuse suggested a minimisation of his behaviour, and that he had little insight into what constituted physical and sexual abuse. He referred to the physical abuse as appropriate discipline. He explained that the ‘discipline’ was often in relation to the children ‘stealing food’ from the fridge, noting that they could not afford to buy a large amount of food and that if the children took food without asking, the whole family went without food. Whilst he acknowledged that he has pled guilty to the charges, including the sexual offending, he could not provide any insight into his offending behaviour or recall the specifics of his offending behaviour, beyond his understanding that it was in relation to teaching them about sex. As such, he does not appear to have sufficient insight into his offending behaviour to express remorse”.

89. Mr Randall assessed the applicant as posing a high risk of sexual reoffending, with a number of risk factors identified, including chronicity and diversity of sexual violence over an extended period; physical and psychological coercion; minimisation of the offences; poor to non-existent insight into his offending; a clear attraction to children; and resistance to treatment. No protective factors were identified, although Mr Randall suggested such factors could be developed if the applicant engaged in therapy.

90. Mr Randall concluded that the applicant fit the criteria for a paedophilic disorder, a depressive disorder, and a cannabis use disorder.

91. In his affidavit of 27 October 2022 the applicant said that the information he gave to Mr Randall was true. He said that he wished to express how sorry he was and had written a letter to express his remorse. In his separate typed letter, the applicant said that he had “started a process of admitting [his] wrongdoing”. He asserted that the process of psychological assessment had “challenged him" and he had to “take responsibility” and apologise. He said, “I would like to put forward a sincere and heartfelt apology”. The applicant claimed to be ashamed of his conduct, and sorry for the pain he had caused.

92. In the balance of the affidavit the applicant described his custodial conditions, including his protection status, and the deprivation protection involved. He said, “this makes my gaol experience harder and more onerous than for someone in the main general population”. Under a heading “Hardship in Custody” the applicant complained of the attitudes towards him of other prisoners, manifested by him being called names such as “rock spider”, or being told that he should hang himself. In a separate section of his affidavit, he listed the hardships caused to him by the COVID-19 pandemic including “lock-ins”, meaning that “whenever there was a Covid outbreak, it would mean an automatic lock-in for 10 days without showers”. Despite all the listed difficulties the applicant has been given trusted employment as a sweeper, Clinic Sweeper, and Head Sweeper, as well as being appointed “Koori Delegate”. Some documentation was included as to his status as a delegate.

89. A Justice Health note from 30 August 2022 was before her Honour, which reported the applicant as mentally stable, although facing “situational stressors”.

The Remarks on Sentence

94. In her remarks her Honour set out the history of the very late pleas and observed that the agreed position of the parties was that a discount on sentence of 5% applied to all offences with the exception of count 1, for which no discount on sentence was afforded the applicant – this being the error complained of by ground 1. As to the gravity of the course of offending her Honour observed, in part:

“The offender began committing offences in 1995 and continued to offend for well over a decade. Planning, threats, violence, coercion and so forth were not necessary because he created an environment where the children were to varying degrees scared of him because of the way he treated them. Furthermore, the facts reveal that at times he did issue threats and/or offer justifications that must have been confusing for a child. Such features enabled him to offend and re-offend as desired and in my view any absence of planning, threats, violence, inducement and/or coercion offers little to no mitigation.”

95. She further noted the corruptive influence of pornography, and the great harm done to the children. Referring to the victim impact statements received by the court she said of the harm done:

“Even without such statements, the community now has a considerably greater awareness regarding the effects of child sexual abuse on children. Courts have regularly observed that child sexual offences have profound and deleterious effects upon victims for many years, if not their whole life. Such offending inevitably gives rise to psychological damage of varying degrees and duration, not to mention financial and social impacts. The inevitability of such harm requires the imposition of sentences that aim to deter such conduct and in turn protect children.”

96. The sentencing judge set out the applicant’s personal circumstances, drawn from the report of Mr Randall and said:

“I accept that the offender experienced a childhood background characterised by inadequate role modelling and characterised by social and emotional deprivation which had a significant impact on his ability to form a strong moral compass. I accept his unfortunate history reduces his moral culpability for the offences he has committed but only to a limited extend. Whilst some of his offending could be interpreted as some misguided attempt to discipline a child and/or provide sex education, the offender clearly derived sexual gratification from his conduct and I have no doubt at all that he knew what he was doing was wrong for many years and to multiple children was wrong.”

97. The applicant’s relatively limited criminal history did not entitle him to “any particular degree of leniency”. His acceptance of responsibility was a significant feature, with her Honour observing,

“Two weeks after Mr Randall’s report was written, the offender wrote a letter of apology to the court. In that letter he reports that speaking to Mr Randall was a challenging process which enabled him to re-evaluate himself and his actions. He said he has begun taking responsibility for his behaviour and felt ashamed. He offered ‘a sincere and heartfelt apology’ to the victims and acknowledged the pain and suffering he had caused them. He said he hoped his apology would bring them some closure and that they would be able to move forward in their lives.

He also of course pleaded guilty to very serious offences thereby obviating the need for five of his children to give evidence and for the sixth to be cross-examined. This was a significant step tot take and I am satisfied was driven by his insight into his offending, his genuine remorse and his desire to do what he could to assist his victims towards healing.”

98. Her Honour concluded that the applicant posed some risk of reoffending and assessed his prospects of rehabilitation as guarded. She took into account the disadvantageous impact of the pandemic and the applicant’s protection status on the conditions he faced in custody to ameliorate the sentence.

99. She gave weight to the need for deterrence to feature in the determination of sentence, and to the requirements that the sentence denounce the applicant’s conduct and recognize the harm done. She was very conscious of the application of the principle of totality:

“In accordance with Pearce v The Queen (1998) 194 CLR 610, having determined indicative sentences appropriate for each offence, I must then consider the overall or total criminality and considerations relevant to concurrency and accumulation.

The principle of totality is clearly a very important one in the sentencing exercise. The reality is that having determined an indicative sentence appropriate to the objective seriousness of each offence, if I was then to partially accumulate to reflect the separate nature of the offender’s repeated offending, that would result in a sentence that would be crushing and manifestly excessive. At the same time I am mindful of the need to ensure the aggregate sentence imposed reflects the fact the offender committed multiple offences on discrete occasions upon victims over years.

As will be apparent when I announce those indicative sentences and the aggregate sentence is imposed, faithful compliance with totality has in fact meant that the offender has received relatively modest to negligible increases for much of his offending.”

100. The sentencing judge declined to make a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act, except insofar as was necessary to allow for accumulation. Her Honour concluded that a longer period of parole than that provided by statute would make little or no difference to the applicant’s rehabilitation.

101. Having set out the indicative sentences, her Honour concluded:

“I am satisfied the overall sentence and the period the offender will serve in custody fairly and justly reflects the objective seriousness of the offending as a whole, the purposes of sentencing and the balance that must be struck in reconciling the tensions that arise when sentencing offenders for multiple serious offences, in ensuring adequate punishment, denouncement, deterrence, recognising the harm occasioned and affording appropriate weight to the offender’s subjective circumstances.”

The Application to this Court

102. As observed at the outset, particularly in circumstances where it was the Crown who drew attention to the error the substance of ground 2, there is no dispute that the errors complained of by each of the grounds have been made out. In those circumstances it is not necessary to consider the arguments at any length. I do, however, wish to make some observations as to the context in which the errors occurred.

103. The error as to the failure to award any discount on sentence in recognition of the late pleas of guilty with respect to count 1 was brought about by the agreed position of the parties before the sentencing judge that no discount was available in circumstances where the plea was entered after KG, the victim of count 1, had commenced his evidence at trial. That position was wrong at law; it brought about the error now complained of.

104. Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act provides (both now and at the time of sentence):

25A   Application of Division

(1)  This Division applies to a sentence for an offence that is dealt with on indictment, other than—

(a)  an offence under a law of the Commonwealth, unless the regulations otherwise provide in the case of a particular offence or class of offences, or

(b)  an offence committed by a person who was under the age of 18 years when the offence was committed and under the age of 21 years when charged before the court with the offence.

(2)  A court must not apply any other discount for the utilitarian value of a guilty plea to an offence to which this Division applies other than the discount provided for by this Division.

105. Section 25C provides for the timing of the entry of a plea, relevantly:

25C   Timing of pleas and notice requirements

(1)  In this Division—

first day of the trial of an offender means the first day fixed for the trial of the offender or, if that day is vacated, the next day fixed for the trial that is not vacated.

106. The applicant was originally due to face trial in August 2021, but the trial could not proceed due to the COVID-19 pandemic. A fresh trial date for May 2022 was fixed. In accordance with what was said at [29] in Gurin v R [2022] NSWCCA 193, the “clock [was] reset” for the purposes of the scheme of discounts provided for by Division 1A.

107. Section 25D(1) and (2) sets out the mandatory discount regime in these terms, noting that s 25D(3) and (5) and s 25E are not relevant to the applicant’s circumstances.

25D   Sentencing discounts for guilty plea for offences dealt with on indictment

(1) Mandatory nature of sentencing discount In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if the offender pleaded guilty to the offence at any time before being sentenced.

(2) Amounts of sentencing discounts The discount for a guilty plea by an offender (other than an offender referred to in subsection (3) or (5) or section 25E) is as follows—

(a)  a reduction of 25% in any sentence that would otherwise have been imposed, if the plea was accepted by the Magistrate in committal proceedings for the offence,

(b)  a reduction of 10% in any sentence that would otherwise have been imposed, if the offender was committed for trial and the offender—

(i)  pleaded guilty at least 14 days before the first day of the trial of the offender, or

(ii)  complied with the pre-trial notice requirements and pleaded guilty at the first available opportunity able to be obtained by the offender,

(c)  a reduction of 5% in any sentence that would otherwise have been imposed, if paragraph (a) or (b) does not apply.

108. The circumstances in which the applicant entered his pleas of guilty are caught by s 25D(2)(c) and a discount on sentence of 5% was applicable to all counts. The fact that evidence had been given before the jury by KG with respect to count 1 did not alter that statutory fact. There is no discretion with respect to discounts on sentence pursuant to Division 1A, and there was no scope for the sentencing court to do other than award a 5% discount on the individual sentences that would otherwise have been imposed or, as here, indicated. The parties provided her Honour with incorrect information, which she accepted and acted upon.

109. Although s 25F(8) provides that the failure by a court to comply with Division 1A does not invalidate the sentence imposed, that provision must be read with s 101A of the Act, which provides:

101A   Effect of failure to comply with Act

A failure to comply with a provision of this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence.

110. In both the High Court and this Court errors in compliance with the Act have been considered and corrected pursuant to s 101A: Stanley v Director of Public Prosecutions (NSW) (2023) 299 A Crim R 391; (2023) ALJR 107; [2023] HCA 3; Panetta v Regina [2016] NSWCCA 85. Notwithstanding s 101A and the authorities that have considered its interaction with provisions such as s 25F(8), if this were the only error, it would be open to the Court pursuant to the latter provision to treat the error as one not invalidating the sentence. That is because of the particular circumstances of this matter, where it is clear that her Honour allowed a very high degree of notional concurrency between indicative sentences, such that an error in failing to allow a 5% discount to one indicative sentence of fifteen indicative sentences was very likely to have been subsumed by the level of notional concurrency with other indicative terms. It is not, however, the only error.

111. As asserted by grounds 2 and 3, the sentencing judge was also in error as to the maximum sentence and SNPP for count 13 and the maximum sentence for count 20; and had regard to a SNPP for each of counts 17, 26, 35, and 38 that did not apply. With the exception of the maximum penalty for count 20, the errors appear to have originated with erroneous information provided by the parties. The Crown’s Sentence Summary document listed each charge, the relevant statutory provision, and the maximum penalty and any SNPP. The information provided for counts 13, 17, 26, 35, and 38 was incorrect, with respect to the maximum penalty, the SNPP, or both. The applicant did not object to the document, or seek to correct it. Her Honour was thus misled, and error occurred. The Crown acknowledges that a reference to an incorrect maximum penalty by a sentencing judge does not automatically establish material error: R v Smith [2007] NSWCCA 138 at [34]. However, it accepts that it would be open to the Court to consider that the exercise of the sentencing discretion miscarried.

112. Given the potentially cumulative effect of the errors it is in my view appropriate to exercise the sentencing exercise afresh.

113. Before leaving the grounds however, I would urge those appearing before sentencing courts to exercise care in the information provided to the court. Particularly where child sexual assault offences are concerned there have been many legislative changes over the years, either wholesale to repeal or replace specific offences, or partial to amend maximum penalties or SNPPs. The date upon which an offence occurred will ordinarily dictate the correct offence and the relevant penalty. It is important to be astute to the frequency with which the legislation in this area has changed, and sensible to carefully check the relevant information before placing it before a court. Whilst there are useful summary guides to legislative change, the most reliable way of ascertaining the correct information is to go to the version of the relevant Act that was in force as at the date of the offence and check each provision individually. The process is time-consuming, but it will help to avoid the necessity for applications such as this. Sentencing judges are entitled to expect and rely upon assistance from the parties as to matters that should not be controversial, including information as to penalties and the applicability or otherwise of the statutory discount regime. That imposes an obligation of accuracy upon the legal representatives which lawyers appearing before the courts should always bear in mind.

Is any other sentence warranted?

114. Section 6(3) of the Criminal Appeal Act provides that “the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal”. Determining the answer to the question implicitly posed by s 6(3) involves exercising the sentencing discretion afresh: Kentwell v The Queen.

115. On the basis that the Court moved to re-sentence, the parties each read affidavits containing information as to the applicant’s circumstances following the imposition of sentence in the District Court. The applicant relies upon his affidavits affirmed on 6 March 2024 and 12 April 2024, the latter filed with leave. In his first affidavit the applicant said that he had been held on protection at the Metropolitan Special Programmes Centre at the Long Bay Complex from April 2020. He said that, although no work was available to him there, he had been appointed Head Sweeper and Koori Delegate, each of which are positions of trust. He regularly assisted Indigenous inmates with filling out paperwork, and encouraged others to participate in art. Access to broader facilities, however, was limited, with no access to a gym or library. The applicant also referred to the restrictions imposed during the currency of the pandemic.

116. The applicant deposed that he was assaulted in January 2024 and, although his injuries were not serious, the assault has left him feeling unsafe. He says he is regularly the target of abuse and threats from prisoners in the mainstream because of the nature of his crimes, called out to him when he moves about the complex. He says that he has a painful back condition and has been diagnosed with depression. The death of his father by suicide in 2022 has caused him a great deal of distress, although he has the continuing support of an aunt, his sisters, and cousins.

117. In his most recent affidavit dated 12 April 2024 the applicant deposed that, having been transferred to Goulburn Correctional Centre on 28 March 2024, he now has access to work and is employed six days per week in building, with other employment available to him in textiles and “woodchip”. He says the employment he is undertaking is both trusted, and the best paid. He has experienced problems with receiving the correct anti-depressant on two days since moving to Goulburn.

118. The Crown relied upon an affidavit of Mr Thomson sworn on 17 April 2024, also filed with leave, which related principally to the applicant’s medication regime in custody. Justice Health records reveal that the applicant has been prescribed a low dose (90mg) of an anti-depressant, duloxetine, and some other medications. The medications have generally been dispensed without incident although duloxetine was not administered on 11 April 2024, with notations in the records “was not given” and “did not attend”, and a further amending notation for that day indicating 60mg only was dispensed, as “nil correct stock”. On 7 April 2024 the records indicate the medication was not dispensed, as “did not attend”, whilst on 6 April 2024 “patient refused – contact Prescriber” was recorded. The medications prescribed to the applicant are noted to be ongoing.

119. Having regard to the affidavit evidence and the evidence that was before the sentencing judge, the applicant argues that a sentence less than that imposed at first instance is warranted. He submits that the error as to the 5% discount had a material impact upon the sentence in that, had it been applied, the indicative sentence would have been “17.1 years”. In circumstances where the next most significant of the indicated sentences was one of 10 years, the applicant contends that the impact on the aggregate sentence would have been notable.

120. He referred the Court to the opinion of Mr Randall to submit that there was a causal connection between his own dysfunctional upbringing and the offences of which he has been convicted. Relying upon the authority of Turnbull v R [2019] NSWCCA 97, he argues that the Court could not conclude that the sentence imposed at first instance is the minimum sentence that could have been imposed, and a lesser term is warranted.

121. The Crown submits that on resentence, the Court would not form the opinion that any lesser aggregate head sentence or aggregate non-parole period is warranted in law.

122. The role for this Court on re-sentence was set out in Kentwell v The Queen, at [42], wherein the plurality said:

“When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be ‘warranted in law’. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not ‘warranted in law’ unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence”. (Footnotes omitted)

123. It is thus not to the point that the application of a 5% discount with respect to the indicative sentence imposed for count 1 would have yielded a lesser sentence, even if notional concurrency did not subsume any difference in the discounted penalty. This Court must set aside the penalty originally imposed, exercise the discretion afresh and, if the aggregate sentence arrived at is a lesser penalty than that imposed in the District Court, proceed to impose that lesser term. Having undertaken that exercise and proceeding on the basis that the imposition of an aggregate sentence comprehending the fifteen offences on indictment, and those matters on Form 1 documents is appropriate, and accepting that there must be a very high level of notional concurrence to give effect to the totality principle, although the sentence I would impose is not greatly different to that imposed in the District Court, it is not “a lesser sentence”.

124. Adopting the findings at first instance about which no complaint has been made, and having regard to the additional evidence filed in these proceedings, a term of imprisonment of 28 years with a non-parole period of 20 years is the minimum sentence that could reasonably be imposed to recognise the gravity of the applicant’s crimes and address the other purposes of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. One of the offences, count 1, carries a maximum penalty of life imprisonment. Five of the offences (counts 13, 25, 27, 35, and 38), and one of the offences on a Form 1 document (count 26) carried maximum penalties of 20 years imprisonment at the relevant time. These and the other maximum penalties and any SNPP are important guideposts that the Court must bear in mind.

125. The offending conduct occurred over an extended period of about 18 years, with offences committed against six separate children. In effect, the applicant sexually and physically abused every child to whom he had access in a domestic setting, with that abuse continuing for many years. The abuse was carried out, for the most part, in the home of the children, corrupting a place and environment that should have been safe and nurturing. The damage done to the victims of these crimes, as the three victim impact statements that the sentencing court received suggest, is very great indeed. It is likely to be life-long. Weight must be afforded to the need for the sentence to deter others, and to denounce crimes that the broader community regards as aberrant and abhorrent. The offence of possessing child abuse material from 2019 serves to demonstrate the applicant’s continuing disobedience to the criminal law, motivated by his perverse sexual desires.

126. Whilst the applicant’s background was dysfunctional and is of relevance to the sentence to be imposed upon him, his circumstances were all given appropriate ameliorating weight by the sentencing judge, and her Honour’s findings are accepted. Nothing in the material tendered in the proceedings before this Court constitutes any compelling reason for further mitigation of sentence. The applicant is depressed and has a back problem (although fortunately not one so disabling as to prevent his current employment on a building site). Her Honour took into account his depressive condition and allowed for the fact that the applicant’s health was likely to deteriorate as the years passed. She recognised and also allowed for the likely worsening of the applicant’s conditions of custody with the passage of time. Whilst the applicant is subject to dangers because of the nature of his crimes, this was also a matter taken into account in mitigation at first instance.

127. In short, nothing in the subjective case persuades me that a lesser sentence is warranted in law for this course of gravely serious offending. I would dismiss the appeal.

128. The orders I propose are:

1. Leave to appeal on grounds 1, 2, and 3 is granted;

2. The appeal is dismissed.

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Endnote

Amendments

22 May 2024 - Typographical amendment to coversheet

Decision last updated: 22 May 2024