EXTRACTS FROM NSW DISTRICT COURT JUDGE PHILLIP
MAHONY’S REMARKS ON SENTENCE
On 23 May 2015, the offender entered pleas of guilty to the following Counts
on the Indictment: Counts 2, 3, 4, 5, 6 and 9.
Each of the Counts were offences pursuant to s 66C(2) of the Crimes Act
1900, namely, that the offender had sexual intercourse with RK, a child then
above the age of 10 and under the age of 14 years, namely, 12 or 13 years of
age, in circumstances of aggravation, namely, RK being under the authority of
the offender.
All of the offences took place between 1 April 2004 and 1 March 2005. The
offender is the step-father of the complainant, RK, who is now 24 years of age.
The offender has also asked that the following offences be taken into account
on a Form 1: Counts 1, 7, 8 and 10. Each of those offences are pursuant to
s 61M(1) of the Crimes Act 1900, being aggravated indecent assaults which
took place during the same period of time.
The maximum penalty for the relevant offences at the relevant time, were as
follows:
 Section 66C(2) – sexual intercourse child under 16 (under authority) – 10 years
imprisonment. There was no standard non-parole period for those offences
which occurred between December 2003 and March 2005.
 Section 61M(1) – aggravated indecent assault – 7 years imprisonment. At the
relevant time, the standard non-parole period prescribed for those offences
was 5 years.
The pleas of guilty were entered on the first day of the trial of the offender.
However, the offender had at first been committed for a number of different
offences, and negotiations that took place over a significant period of time, led
to the present Indictment, and the pleas of guilty resulted from discussions that
had taken place during the week before the trial was due to take place. In
those circumstances, the Crown has conceded that the offender is entitled to a
utilitarian discount on sentence in respect of the pleas of guilty entered to each
of the offences of 15%.
Circumstances of the offending
The Agreed Facts may be fairly summarised as follows. The complainant, RK,
was born on 29 May 1991. Her parents separated when she was very young
and her mother married the offender on 19 January 1997.
In 2000, the family moved to Old Bar, New South Wales. The offender worked
as a youth worker at Juvenile Justice and DOCS, however, in 2003, his
employment with DOCS was terminated. He became depressed and started
drinking heavily. He did obtain casual work involving labouring, fencing, and
concreting.
The circumstances surrounding each of the offences are as follows:
Count 2 – In the middle of 2004, the offender and RK were watching television
and the offender told RK to go to bed, which she did. She was later awoken by
the offender, who pulled her towards the edge of the bed and inserted one
finger into her vagina for two or three minutes. RK felt pain during this time.
Count 3 – The offender then performed cunnilingus on RK.
Count 4 – In Spring 2004, the offender took RK to Tabbimoble, New South
Wales, to a farming property owned by his family. Other members of the
offender’s family had travelled to Western Australia. The offender and RK were
staying at a caravan on the property, which contained only one bed. They
stayed for between 10 and 14 days, during which, sexual intercourse and
indecent assaults occurred on most nights. Counts 4, 5 and 6 occurred during
this period. On one night, the offender inserted his penis into the vagina of RK
while he was laying on top of her for a couple of minutes. RK recalled there
was a lot of blood and that her vagina was sore.
Count 5 – Involved an occasion where the offender had taken RK to a local
pub to have a meal. On their return to the caravan, RK told the offender that
her vagina was sore. The offender inserted his penis into her vagina while he
was on top of her for two to three minutes.
Count 6 – After watching a movie in the caravan, the offender inserted his
penis into the vagina of RK whilst he lay on top of her. That lasted for a couple
of minutes. RK was 13 years old at the time of that offence.
Count 9 – Following their return home, the offender had penile/vaginal
intercourse in the bedroom of the family home.
The conduct involved in the indecent assaults, which comprise the four counts
on the Form 1, were as follows:
Count 1 – Offence pursuant to s 61M(1) of the Crimes Act 1900 - In December
2003 or January 2004, the offender and RK were in the lounge room watching
cricket on the television. Whilst watching television, the offender touched RK’s
breasts and vagina. She was 12 years old at the time.
Count 7 – Offence pursuant to s 66C(2) of the Crimes Act 1900 - In January
2005, the offender and RK travelled to Sydney to watch a cricket match. They
were staying at the offender’s mother’s house in Auburn, and shared a bed.
Whilst in bed, the offender placed his hands on RK’s breasts and vagina, and
then inserted his finger into her vagina.
Count 8 – Offence pursuant to s 61O(1) of the Crimes Act 1900 - After the
conduct in Count 7, the offender then had RK masturbate him until he
ejaculated.
Count 10 – Offence pursuant to s 66C(2) of the Crimes Act 1900 - On their
return home, on one occasion the offender and RK had penile/vaginal
intercourse on the lounge room floor. RK was 13 years old at the time.
The sexual assaults against RK ceased in March 2005. Later that year, RK left
the family home and went to stay with her maternal grandfather. On
7 December 2014, RK met with the offender at a club in Old Bar. She
confronted the offender about the abuse she endured as a child and recorded
the conversation without the offender’s knowledge or consent.
On 10 December 2014, the offender attended the Port Macquarie Police
Station and made admissions based on limited details. On 12 January 2015,
he attended Taree Police Station and was placed under arrest and cautioned.
He participated in an electronically recorded interview and made admissions to
having a sexual relationship with his step-daughter between 2003 and 2005,
indicating “I knew I had done the wrong thing”, and “I want to make reparation”.
The offender has been in custody since 23 May 2016.
The sentence hearing
The sentence hearing took place on 5 August 2016.
The report of Ms Lucas set out the family and social history of the offender. He
spent his early childhood in Greece and arrived in Australia at age 5. He was
exposed to domestic violence, as his father was violent towards his mother,
and to the offender when he intervened on his mother’s behalf. He had a
somewhat troubled youth, experimenting with drugs and alcohol, and felt
socially anxious. He left home at age 18 and found work on the far north coast
of New South Wales. He first married at age 27 and has one daughter of that
marriage. He separated from his first wife after 3 years and married for the
second time in 1997. At the time of that marriage, the complainant RK was 5
years of age, and he adopted a parental role with her. He and his second wife
then had two further children as referred to above. He described the marriage
as “very good”. His wife had suffered breast cancer and underwent
mastectomies in 2013 and 2014.
After first leaving school, the offender worked in semi-skilled positions,
however, he returned to TAFE to obtain an Associate degree in sociology, and
then worked as a youth worker with the Department of Juvenile Justice, and
Department of Community Services. After losing his employment in 2003, he
became very depressed and his alcohol intake increased dramatically.
He had recently undergone 18 psychological treatment sessions with Dr
Sendah, focussing on his symptoms of anxiety, depression and the factors
involved in his sexual offending behaviour. He had been prescribed
Fluvoxamine for his mood disorder, and Valium for anxiety.
Under the heading “Psycho-sexual history”, Ms Lucas reported that the
offender had not been the victim of child sexual assault himself, described
himself as having an average sex drive, and denied paedophilic or hebophilic
(sic) attraction.
The offender had told the author of the report that he did not know why he
committed the offences, however, he advised the period of the offending
occurred around the time of his loss of valued employment and increased
substance abuse. He had not disclosed the offending behaviour to anyone
prior to the time of handing himself into police, however, he said his disclosure
had been precipitated by the meeting with the victim who had tried to blackmail
him.
The offender reported that the offending had weighed heavily on his
conscience, but he had never found the “right time” to tell his wife. The author
opined that whilst admitting the offending and recognising the wrongness of his
actions, the offender did not impress as fully comprehending the reasons
behind his offending, or the factors which may have contributed to it. She noted
that he advised he was truly sorry for his actions and that his contrition
appeared sincere. However, during the assessment he presented with
significant levels of “victim-stancing”, or focussing on his own losses, whilst
minimising the harm caused to the victim. The author opined that developing
empathy for the victim would be considered a primary criminogenic need for
the offender.
The author noted that the offender was highly motivated to engage in
treatment. On assessment, she opined that he was suffering from PostTraumatic Stress Disorder and a Major Depressive Disorder.
The author also assessed the offender as being a relatively low risk for
re-offending sexually in the future. In coming to this opinion, Ms Lucas took into
account numerous factors including the offender’s long-term intimate
relationship with his wife, and the fact that he did not identify high levels of
sexual preoccupation or hypo-sexuality. The author did note, however, the
limitations of actuarial risk assessment for intra-familial sex offender
populations.
It was recommended that the offender re-engage with a specialist treatment
provider to address relevant factors to strengthen his relapse prevention. This
could be done both while he was in custody and also upon his release into the
community under the supervision of the Department of Community Corrections.
Lifting of suppression order
At the conclusion of the sentence hearing, the Crown applied for the lifting of a
suppression order made previously under the Court Suppression and
Non-Publication Orders Act 2010. The Crown informed the court that the
grounds for making the order in this case was pursuant to s 8(1)(d), namely:
“(d) The order is necessary to avoid causing undue distress or embarrassment
to a party, or witness in criminal proceedings involving an offence of a sexual
nature (including an act of indecency).”
The Crown submitted that the complainant no longer sought to rely on that
ground and consented to the suppression order being lifted. Thus, s 578A of
the Crimes Act did not apply to the proceedings, as the complainant consented
to the suppression order being set aside – see s 578A(4).
Counsel, on behalf of the offender, informed the court that the application was
not consented to, but otherwise submitted that the object of the Court
Suppression and Non-Publication Orders Act 2010 was to protect the victim of
sexual assault and witnesses to be called.
In view of the consent of the complainant to the lifting of the order, I set aside
the order previously made pursuant to s 7 of the Court Suppression and NonPublication Orders Act 2010.
Crown submissions
In a detailed written outline of submissions, the Crown outlined general
principles of sentencing behind the purposes of sentencing as prescribed in s
3A of the Crimes (Sentencing Procedure) Act 1999 (“C(SP)A”). Those
principles are uncontroversial and, to the extent that they are relevant, are
referred to below.
The Crown also set out general principles that apply in sentencing offenders for
sexual offences against children, referring to a number of well known
authorities. The Crown submitted that children are entitled to grow up free from
defilement by sexual predators and free from the risk of psychological upset,
confusion and difficulties in later life, caused by such conduct, referring to R v
Dent (unreported, NSWCCA 14 March 1991). That such damage may be
profound is beyond argument. More recently in R v Gavel [2014] NSWCCA 56
at [110], the court stated:
“This court has observed that child sex offences have profound and
deleterious effects upon victims for many years, if not the whole of their lives:
R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably
give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R
v G [2008] UKHL 37, Baroness Hale of Richmond (at [49]) referred to the ‘long
term and serious harm, both physical and psychological, which premature
sexual activity can do’. The absolute prohibition on sexual activity with a child
is intended to protect children from the physical and psychological harm taken
to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157.”
The Crown submitted that the objective seriousness of the offending here was
within the mid-range, if not above. None of the offences required consent,
because of the age of the victim. Therefore, aggravating circumstances which
may be present in sexual offences which required consent to be proved, such
as infliction of pain and deprivation of liberty, were not relevant to the
assessment of objective seriousness of offending here.
The Crown further submitted that it was imperative that any subjective
considerations concerning the offender did not cause inadequate weight to be
given to the objective circumstances of the case, relying on R v Dodd (1991)
57 ACrimR 349.
The Crown submitted that the criminality of the conduct here involved conduct
that took place over a period of 16 months, between December 2003 and
March 2005, when the victim was 12 and 13 years old. The offender was in a
position of trust to the victim and the breach of trust involved was a separate
concept which could be taken into account as opposed to being “under
authority”, although the court should be careful to avoid the possibility of double
counting. The Crown submitted that a breach of trust was more serious where
the breach was a family member, due to the helplessness of children against
sexual attacks by parents, relying on R v DJM [2013] NSWCCA 101.
The Crown further submitted that the age of the victim, namely 12 or 13 years
old, was a matter that could be taken into account both in relation to the
objective seriousness of the offences and as an aggravating feature,
notwithstanding that it was an element of the charges for which the offender
was being sentenced.
The Crown submitted that the following aggravating features should be taken
into account on sentence pursuant to s 21A(2):
(i)
That the offences occurred in the home of the victim,
pursuant to s 21A(2)(eb), pursuant to Atkar v R [2015]
NSWCCA 123 per Wilson J at [63].
(ii)
That the offender abused his position of authority,
pursuant to s 21A(2)(k). This was relevant in relation to
the matters taken into account on the Form 1. It was in
fact an element of Counts 2-6 and Count 9.
(iii)
That the victim was vulnerable pursuant to s 21A(2)(l).
The Crown submitted that where the age of the
complainant is significantly below the maximum provided
by the particular offence, that is a factor which may be
taken into account, relying on RJA v R [2008] NSWCCA
137.
The Crown acknowledged the following mitigating features could be taken into
account pursuant to s 21A(3):
(i)
Lack of criminal record, pursuant to s 21A(3)(e).
(ii)
The good character of the offender, pursuant to s
21A(3)(f). However, the Crown submitted that character
should be given little weight as a mitigating factor where
the offending conduct was for sexual offences against a
young victim.
(iii)
The offender’s plea of guilty, pursuant to s 21A(3)(k).
Given that the plea of guilty was foreshadowed in
advance of the first day of the trial, the Crown conceded
that the offender would be entitled to a discount of 15%.
Notwithstanding that the offences occurred between December 2003 and
March 2005, and the offender was being sentenced in 2016, the Crown
submitted that the delay between the offences and sentence are of little weight
in the present matter, because of the way it was caused by the offender
remaining silent in the hope that the offences would not be discovered.
Therefore a reduced sentence for that reason was inappropriate, relying on R v
Spiers [2008] NSWCCA 107.
The Crown further submitted that the mental illness of the offender would not
be relevant here to the assessment of culpability, as it must have been
established that such a condition contributed to the commission of the
offences, relying on R v Hammond [2008] NSWCCA 138 at [30] to [36]. Whilst
the report of Ms Lucas opined that the offender was suffering from a
depressive disorder at the time of the offences, that report did not show how
the depressive disorder contributed to the commission of the offences.
The Crown submitted that, given there were multiple serious offences, some
accumulation of sentences was necessary in order to “strike a balance
between the principle of totality and the sentences to be imposed for individual
counts” – R v Bavadra (2000) 115 ACrimR 152. Referring to the High Court’s
decision in Pearce v R (1998) 194 CLR 610, an appropriate sentence had to
take into account questions of accumulation, concurrence or totality. The
Crown conceded that it was an appropriate case to set an aggregate sentence
in accordance with s 53A, in accordance with the approach set out by the Court
of Criminal Appeal in JM v R (2014) 246 ACrimR 528.
The Crown submitted that the Court would have regard to the content of the
detailed Victim Impact Statement, but not as an aggravating feature. In respect
of whether special circumstances should be found pursuant to s 44 of the
C(SP)A, the Crown submitted that any non-parole period must reflect the
criminality in the objective seriousness of the criminal conduct here. In the light
of the gravity of the offences for which the offender was being sentenced, the
Crown submitted that applying the statutory formula would provide sufficient
time for his supervision on parole.
The Crown also provided the court with a comparative case analysis, by
reference to several comparable cases. The Crown acknowledged that each
case depended on its own circumstances and the comparable cases were
merely a guide for the court.
The Crown also relied on sentencing statistics published by the Judicial
Commission as a general guide. The Crown acknowledged that caution was
required in the use of such statistics.
Submissions of the offender
Learned Counsel on behalf of the offender submitted that there was one
course of criminal conduct involved, which meant that the case was
appropriate for aggregate sentencing pursuant to s 53A of the C(SP)A.
In assessing the objective seriousness of the offending for the offences
pursuant to s 66C(2), it was submitted that that section took in a wide range of
criminal conduct. There was obvious aggravating features here, namely, that
the offender was the step-father of the victim and that she was under his
authority. However, it was submitted that this was not the worse type of offence
pursuant to that section. For example, there was no bodily harm established to
the victim. Similarly, there was no deprivation of her liberty, and no threat of
violence.
It was submitted there was a causal link between the age of the complainant
and the degree of exploitation involved. It was an element of the offending that
the victim was between 10 and 14 years of age, whereas the victim here was
12 or 13 years of age at the time of the offences. That age may be considered
above mid-range, although 12 years of age was clearly mid-range.
Learned Counsel conceded that the offender’s position of authority and the
victim’s vulnerability were clearly aggravating features.
Learned Counsel submitted that the upper range of objective seriousness for
offending pursuant to s 66C(2) may involve, for example, sexual assault
following a home invasion. All the objective circumstances here, including the
aggravating features, it was submitted, meant that the objective seriousness of
the offending here fell below the mid-range for offences pursuant to s 66C(2),
although not at the lower end of the range. The offender submitted that the
court must be careful to avoid, in assessing the objective seriousness, double
counting of factors.
It was further submitted that the Victim Impact Statement was not relied upon
by the Crown to aggravate the harm suffered to the victim. It was, however, a
matter that the court would take into account in the sentencing process.
Counsel submitted that the mitigating factors here were the offender’s lack of
criminal antecedents and his previous good character, whilst acknowledging
that good character was given less weight in offences of this type.
Counsel submitted that the court would have regard to the offender’s contrition,
remorse and his voluntary disclosure of the offending to the police. With
respect to that disclosure, the Agreed Facts disclosed that a meeting took
place between the offender and the victim at a club at Old Bar on 7 December
2014, some 10 years after the offending conduct. The victim had recorded their
conversation. Counsel submitted that there was no threat by the complainant to
report the matter to the police, and that she requested an amount of money
from him. Three days later the offender reported the matters to the police at
Port Macquarie. Counsel submitted that in the absence of any threat by the
victim to report the offender to the police, the court would accept that part of
the report of Ms Lucas where she reported that the offender had considered
clearing his conscience for some time before he did so by making his
statement on 12 January 2015. In those circumstances, the offender was
entitled to a discount for his voluntary disclosure, relying on Panetta v R [2016]
NSWCCA 85 per Adams J at [33] – [34], and [48], pursuant to the principle in R
v Ellis (1986) 6 NSWLR 603.
It was submitted that at the very least, the offender materially assisted the
police and expedited the matter by himself reporting the matters to the police.
Further, there was a likelihood that the offences could not have been proved
beyond reasonable doubt without the disclosure, and admissions made by the
offender. Any Crown case would have had to rely entirely on the evidence of
the victim, and given the effluxion of time, there would have fertile ground for
her cross-examination. It was further submitted that the disclosure by the
offender and his full admissions not only expedited the matter, but made his
prosecution less burdensome for the community. The discount for this
assistance had to be quantified in accordance with s 23 of the C(SP)A.
The offender’s disclosure also gave weight to the mitigating factors of remorse
and contrition here. This was supported by the fact that after meeting with the
victim, the offender first spoke to his wife, which was indication of his remorse,
namely, that he fully disclosed the matter to his wife. That led to an initial
period of separation, but that she now continues to support him, whilst
acknowledging his serious offending and the serious effect of that offending on
her daughter, together with the concern she has for her daughter’s wellbeing.
With respect to the offender’s rehabilitation needs and likelihood of
re-offending, Counsel submitted that notwithstanding the comment by the
psychologist that his focus was on his own needs rather than that of the victim,
he had, by his actions, acknowledged the seriousness of his wrongdoing and
the serious detrimental effect on the victim. His criminal conduct was borne of
his drug and alcohol abuse which escalated, together with his depression and
anxiety, upon his losing his employment in 2003. There was no suggestion of a
causal link between his mental health and the offending conduct. However, if
the court accepted that the offences occurred at a time of considerable
stressors, because of his loss of employment, the court would be more
optimistic of his prospects of rehabilitation and his limited risk of re-offending if
those issues were resolved.
The offender had expressed a willingness to participate in relapse prevention
and any counselling that was specifically aimed at sex offenders.
Counsel referred to the hardship suffered by the offender’s family. It was
acknowledged that this was not to an exceptional level, however, it was
significant and therefore was another consideration to take into account. His
wife had suffered a serious disease which was set out in the medical evidence.
The family had also been ostracised from the community and the offender’s
wife had no family support and was suffering from financial hardship.
Counsel also submitted that there was a likelihood that the offender would face
hardship in custody. He was presently in protection and would remain so
following sentence. He was located at the Mid-North Coast Correctional
Facility, and the family would suffer significant hardship if he was moved from
that place.
Counsel submitted that the court would also take into account the offender’s
background. In the past he had been a well-respected and contributing
member of the community. He was always in employment and cared for his
family, even by doing manual labour once he lost his employment. He was also
a member of the church community, but lost his way because of his drug and
alcohol problems which led to his offending behaviour. It was submitted that he
was therefore capable of once again being a contributing member of society,
particularly with the assistance of rehabilitative services.
Counsel submitted that upon release from gaol, the offender would have the
support of his wife and would also have the interests of his son at heart. He
had a number of employment opportunities that were available to him. Counsel
submitted that the Court should make a finding of special circumstances
pursuant to s 44(2) of the C(SP)A because of his voluntary disclosure, the
hardship to his family, the fact that it was his first time in custody, and the
benefit to the community of the offender’s prolonged period of supervision on
parole.
Counsel was provided with an opportunity to make further written submissions
in support of the offender to be filed within 7 days of the sentence hearing. The
submission set out the following propositions and authorities:
(1)
“That the ages of victims and the range of criminality of the offenders
may vary greatly, rendering a wide range of sentences appropriate,
relying on R v McClymont, unreported, 17 December 1992, NSWCCA
per Gleeson CJ.
(2)
Factors relevant to assessing the objective seriousness of offending
included:
(i)
How the offences took place, over what period, with what
degree of coercion, use of threats of pressure, and any
immediate effect on the victim, relying on R v AJP (2004)
150 ACrimR 575 at [25]; MLP v R (2006) 164 ACrimR 93
at [22]; R v PGM (2008) 187 ACrimR 152, all of which
refer to offences under s 66A of the Crimes Act 1900.
(ii)
The most significant matter which determines where a
particular offence is to be placed in the spectrum of
offences of this kind, is the degree to which the offender
is seen to have exploited the youth of the victim, relying
on R v Sea, unreported, 13 August 1990 NSWCCA per
Badgery-Parker J at [4].
(iii)
One of the relevant matters in assessing objective
seriousness is the number of aggravating features
present. Generally speaking, the more circumstances of
aggravation are present, the more serious the offence,
relying on Maxwell v R [2007] NSWCCA 304 at [26]; R v
Huynh [2005] NSWCCA 220 at [30], which authorities
refer to offences pursuant to sections 112 and 113 of the
Crimes Act.”
In reply, the Crown confirmed that the Crown did not rely on the Victim Impact
Statement as a circumstance of aggravation on sentencing. The Crown
confirmed that the objective seriousness of the offending was, in the Crown’s
submission, within the mid-range of offences pursuant to s 66C, if not above
the mid-range. The Crown further submitted that the fact that the offender
would be a protected inmate did not mean that he would serve his time
necessarily in more onerous conditions than the rest of the prison population.
Finally, the Crown submitted an Ellis discount was not available in the present
case, but, if it was, any such discount would be of a very small percentage. The
meeting that took place on 7 December 2014 between the victim and the
offender, came after a period of estrangement between them. The victim had
recorded the conversation in which she asked the offender for money. It was
conceded that there was no overt threat to report him to the police, however, “it
was in the background”, for example, the victim had said to the offender in
respect of her request for money, “I think it is the easier of the two options”.
That conversation was referred to during the ERISP interview of the accused.
In the same interview, he had told police that she had asked for a sum of
money for him to “keep my silence”. The victim had then told him:
“I’m going to give you seven days or I’m going to go to the police.”
The Crown submitted in the light of that evidence, that on 10 December 2014
when the offender went to the police, it was not necessarily free or voluntary. It
was highly likely at that point in time, that the offending conduct would have
been discovered, and that must have been in the offender’s mind.
Further, the Crown submitted that the offences could be proved beyond
reasonable doubt, relying on the evidence of the victim. The Crown would have
access to the tape recording made by her, which would not have assisted the
offender in defending any charges. For those reasons, the Crown submitted
that the Ellis discount was not available.
Determination
Section 3A of the C(SP)A 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.”
The objective seriousness of the offending, in respect of each of the six counts
pursuant to s 66C(2) of the Crimes Act, has to be assessed, having regard to
the fact that they took place over a period of almost one year, when the victim
was 12 or 13 years of age, and was under the authority of the offender, he
being her step-father. The offending in each case constituted a gross breach of
trust, and, whilst there is no evidence of overt coercion or the use of threats,
the offending in each case involved exploitation of the tender years of the
victim. There was physical harm done to the victim, for example, in respect of
Counts 4 and 5, when she told the offender that her vagina was sore. That the
victim suffered profound psychological damage is beyond argument, as was
evidenced by her Victim Impact Statement. However, that is not relied upon by
the Crown as an aggravating factor. She was clearly vulnerable. Further, the
offences had occurred in the home of the victim, and in a caravan where the
victim was staying with the offender during holidays.
Counsel for the offender conceded that the offender’s position of authority and
the victim’s vulnerability were clearly aggravating factors. That the victim was
12 or 13 years at the time of the offences, where one element of the offence is
that the victim was between 10 and 14 years of age, does not lessen the
objective seriousness of the offending here. The victim was within the
mid-range of ages for the offence.
Whilst there were a number of circumstances of aggravation as defined in
s 66C(5), not relevant to the offending here, having regard to all of the
circumstances and the aggravating matters set out above, the objective
seriousness of offending here fell within the mid-range of offending pursuant to
s 66C(2), in respect of each of the six offences contained in Counts 2, 3, 4, 5, 6
and 9 of the Indictment.
I have had regard to the maximum sentence of 10 years imprisonment for the
offences pursuant to s 66C(2) as a guideline in the sentencing process.
I have also taken into account the matters on the Form 1, being Counts 1, 7, 8
and 10. I note the maximum penalties for those offences. The objective
seriousness of the offending in respect of Counts 1, 7 and 8 was well below the
mid-range of offending for those offences, however, Count 10 constituted
serious offending and was within the mid-range of offending pursuant to
s 66C(2).
I have certified that I have taken those matters on the Form 1 into account, and
there must be some accumulation on sentence, having regard to the
seriousness of the criminal conduct involved in those offences.
I have also had regard to the Victim Impact Statement read to the court by the
complainant’s mother. It sets out the impact that these offences have had on
the victim’s physical and emotional state, and was a poignant exposition of the
extent of the trauma suffered by the victim. I note that there is no medical
evidence against which to assess the victim impact statement, however, it is a
matter of common sense that the offences have had a substantial impact on
the victim. I have therefore taken the victim impact statement into account, but I
make it clear that I have done so not to aggravate the offender’s culpability.
I have taken into account the fact that the offender lacks any criminal record
and is otherwise of good character. However, I accept the Crown’s submission
that good character should be given little weight as a mitigating factor in the
circumstances here.
I also take into account the offender’s plea of guilty, which was given on the
first day of the trial. I accept the Crown’s submission that the appropriate range
would be a utilitarian discount of between 10 and 15%, and given the Crown
concession that the offender would be entitled to a discount of 15%, I will
discount the sentence accordingly.
I do not propose to provide a discount for any delay between the offences and
sentence here, on the basis that any delay was caused by the offender
remaining silent in the hope that the offences would not be discovered, until he
was confronted by the victim in December 2014.
Nor do I accept here, that the offender’s moral culpability was diminished by
way of his mental illness. The evidence of Ms Lucas did not establish a causal
link between any depressive illness and the offending. Rather, the offender’s
depressive state caused by the loss of his then employment, together with his
abuse of alcohol and illicit drugs, merely provided an explanation of the
background to the offending. Nor does the fact of the mental illness of the
offender diminish the importance of general deterrence in sentencing here. A
clear message has to be sent to the community condemning the criminal
conduct involved in the offences here.
The offender made a voluntary disclosure of his offending to the police, but
only after being confronted by the victim. The circumstances in which he
reported the matters to the police, three days after that confrontation, are
consistent with a threat by the victim to report the matter to the police within
seven days, as submitted by the Crown. In those circumstances, the disclosure
was not entirely voluntary. Rather, it was made in the shadow of impending
detection rather than an unprovoked and guileless surrender. However, it did
amount to material assistance to the police in prosecuting the matters, and
allowed his sentencing to be expedited, notwithstanding the effluxion of time.
Having regard to the matters set out in s 23(2) of the C(SP)A, given the extent
of the assistance and the saving of community resources, I assess that the
offender is entitled to a further utilitarian discount of 10% on sentence. He will
therefore be entitled to a total 25% utilitarian discount on sentence in respect of
his plea of guilty to each of the offences, and his disclosure and assistance to
the police. I am mindful that pursuant to s 23(3), any lesser penalty imposed for
assistance to law enforcement authorities must not be unreasonably
disproportionate to the nature and circumstances of the offences.
Both of those matters also indicate some remorse and contrition on the part of
the offender here. However, as outlined in the report of Ms Lucas, the offender
has been more focussed on the consequences to himself of his offending than
that of the victim.
As set out above, the offender sought a finding of special circumstances
pursuant to s 44(2) of the C(SP)A because of his voluntary disclosure, the
hardship to his family, the fact that it was his first time in custody, and the
benefit to the community of the offender’s prolonged period of supervision on
parole. I have already taken his voluntary disclosure into account in allowing a
further utilitarian discount on sentence. The evidence does not establish
exceptional hardship to his family, and the fact that it is his first time in custody
does not warrant a finding of special circumstances. Further, I am not
persuaded that the offender will serve any sentence in more onerous
conditions than the rest of the prison population. The evidence established that
he is a protected inmate and will continue in that category. Special
circumstances have not been made out here pursuant to s 44(2) of the
C(SP)A. He will, during his sentence, be eligible for a number of rehabilitative
programs, specifically designed for sex offenders. Further, any sentence here
will provide sufficient time for his supervision to ensure his return to the
community. He is supported by his wife, and has, in all the circumstances,
good prospects of rehabilitation without the need for a finding pursuant to s
44(2).
I am satisfied, having considered all possible alternatives, that no penalty other
than imprisonment is appropriate for the offences. I also note that the offender
has been in custody since 23 May 2015.
I intend to proceed to sentence the offender by way of an aggregate sentence
pursuant to s 53A of the C(SP)A, which provides as follows:
S 53A Aggregate sentences of imprisonment
(1) A court may in sentencing an offender for more than one offence, impose
an aggregate sentence of imprisonment with respect to all or any 2 or more of
those offences instead of imposing a separate sentence of imprisonment for
each.
(2) A court that imposes an aggregate sentence of imprisonment under this
section on an offender must indicate to the offender, and make a record of, the
following:
(a) The fact that an aggregate sentence is being imposed,
(b) The sentence that would have been imposed for each offence (after
taking into account such matters as are relevant under Part 3 or any
other provision of this Act) had separate sentences been imposed
instead of an aggregate sentence.
(3) Subsection (2) does not limit any requirement that a court has, apart from
that subsection, to record the reasons for its decisions.
(4) The term, and any non-parole period, set under this Division in relation to
an aggregate sentence of imprisonment is not revoked or varied by a later
sentence of imprisonment that the same or some other court subsequently
imposes in relation to another offence.
(5) An aggregate sentence of imprisonment is not invalidated by a failure to
comply with this section.”
I note that any aggregate sentence must be “just and appropriate” to the totality
of the offending behaviour – see Mill v The Queen (1988) 166 CLR 59 at [63].
In R v Van Ryn [2016] NSWCCA 1, the court had regard to the following
summary of the correct approach to the assessment of sentence for multiple
offences, with proper regard to the totality of the criminality involved:
“[228] Street CJ described the principle of totality in sentencing in R v Holder;
R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:
The principle of totality is a convenient phrase, descriptive of the
significant practical consideration confronting a sentencing judge when
sentencing for two or more offences. Not infrequently, a straightforward
arithmetical addition of sentences appropriate for each individual
offence considered separately will arrive at an ultimate aggregate that
exceeds what is called for in the whole of the circumstances. In such a
situation, a sentencing judge will evaluate, in a broad sense, the
overall criminality involved in all of the offences and, having done so,
will determine what, if any, downward adjustment is necessary,
whether by telescoping or otherwise, in the aggregate sentences in
order to achieve an appropriate relativity between the totality of the
criminality and the totality of the sentences.”
The court went on to emphasise the need to maintain public confidence in the
administration of justice when sentencing for multiple offences, and also
referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168
ACrimR 41 at [27]:
“There is no general rule that determines whether sentences ought to be
imposed concurrently or consecutively. The issue is determined by the
application of the principle of totality of criminality: can the sentence for one
offence comprehend and reflect criminality for the other offence? If it can, the
sentences ought to be concurrent otherwise there is a risk that the combined
sentences will exceed what is warranted to reflect the total criminality of the
two offences. If not, the sentences should be at least partly cumulative,
otherwise there is a risk that the total sentence will fail to reflect the total
criminality of two offences. … Similarly, where they are part of a single episode
of criminality with common factors, it is more likely that the sentence for one of
the offences will reflect the criminality of both.”
(See also R v Caldwell [2016] NSWCCA 55)
Having regard to the principles of sentencing referred to above, and in
particular those of totality and proportionality, I propose to aggregate the
sentences to be imposed, having first assessed the indicative sentences to be
imposed in respect of each count. It is clear that the aggregation of sentences
pursuant to s 53A must reflect some accumulation of the indicative head
sentences – R v Rae [2013] NSWCCA 9, and JM v R, supra, per R A Hulme J
(with whom Hoeben CJ at CL and Adamson J agreed) at [39]
The Court is required to indicate the sentence that would have been imposed
for each offence had separate sentences been imposed instead of an
aggregate sentence. This provides transparency in the sentencing process –
see McIntosh v R [2015] NSWCCA 184 at [135]. It is clear that in indicating the
sentences, there is no requirement to specify non-parole periods unless the
offence is one for which a standard non-parole period is prescribed – see
McIntosh v R, supra at [142], JM v R, supra at [8].
The indicative sentences I would have imposed for each offence are as follows:
Count 2 – Sexual intercourse with a child above the age of 10 years and under
the age of 14 years, namely 12 or 13 years of age, in circumstances of
aggravation, namely being under the authority of the offender pursuant to s
66C(2) – 1 year and 6 months imprisonment.
Count 3 – Sexual intercourse with a child above the age of 10 years and under
the age of 14 years, namely 12 or 13 years of age, in circumstances of
aggravation, namely being under the authority of the offender pursuant to s
66C(2) – 2 years and 6 months imprisonment.
Count 4 – Sexual intercourse with a child above the age of 10 years and under
the age of 14 years, namely 12 or 13 years of age, in circumstances of
aggravation, namely being under the authority of the offender pursuant to s
66C(2) – 3 years imprisonment
Count 5 – Sexual intercourse with a child above the age of 10 years and under
the age of 14 years, namely 12 or 13 years of age, in circumstances of
aggravation, namely being under the authority of the offender pursuant to s
66C(2) – 3 years imprisonment
Count 6 – Sexual intercourse with a child above the age of 10 years and under
the age of 14 years, namely 12 or 13 years of age, in circumstances of
aggravation, namely being under the authority of the offender pursuant to s
66C(2) – 2 years and 3 months imprisonment
Count 9 – Sexual intercourse with a child above the age of 10 years and under
the age of 14 years, namely 12 or 13 years of age, in circumstances of
aggravation, namely being under the authority of the offender pursuant to
s 66C(2) – 2 years and 3 months imprisonment.
Sentence
I sentence you as follows:
(1)
You are convicted of each of the offences in Counts 2, 3, 4, 5, 6 and 9
pursuant to s 66C(2) of the Crimes Act 1900, namely that you had
sexual intercourse with RK, a child then above the age of 10 years and
under the age of 14 years, namely, 12 or 13 years of age, in
circumstances of aggravation, namely, RK being under your authority.
(2)
The sentence I impose pursuant to s 53A of the C(SP)A is a non-parole
period of 6 years to commence on 23 May 2016 and to expire on
22 May 2022.
(3)
There will be further term of 2 years imprisonment commencing on 23
May 2022 and expiring on 22 May 2024. The total term will be 8 years
imprisonment.
I have certified that I have taken into account the matters on the Form 1.
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.
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