DPP v Black

1. The offender, Julius Black (a pseudonym), pleaded guilty to, and is to be sentenced for, the following sexual offences perpetrated against three children between 1968 and 1994.

SCC 108 of 2023 (i) Count 5 (CC2022/12448): between 31 December 1992 and 1 January 1994, sexual intercourse with a person under 10 years, contrary to s 92E(1) of the Crimes Act 1900 (ACT) (as was previously in force), carrying a maximum penalty of 17 years of imprisonment (Ms G).

SCC 271 of 2022 (ii) Count 6 (CC2022/5840): between 31 December 1972 and 1 January 1975, indecent assault on a female, contrary to s 76 (as was previously in force) and in conjunction with s 66B of the Crimes Act, carrying a maximum penalty of 5 years of imprisonment (Ms K). This is a course of conduct charge. (iii) Count 7 (CC2022/5848): between 31 December 1968 and 1 January 1977, indecent assault on a female, contrary to s 76 (as was previously in force) and in conjunction with s 66B of the Crimes Act, carrying a maximum penalty of 5 years of imprisonment (Ms C). This is a course of conduct charge.

2. The sentencing proceedings were completed on 5 February 2025. In circumstances where it was accepted that a period of imprisonment would be imposed, with the consent of the Director, the matter was adjourned for a further period to permit the offender to attend to his physical health needs to the extent that he could, before being taken into full-time custody.

Agreed facts

SCC 271 of 2022 – Ms K and Ms C

3. The offender is the uncle of Ms K and Ms C, the victims in Counts 6 and 7. He resided with his parents, Mr and Mrs H, into his adult years at a residence in Ainslie, ACT ('the Ainslie premises').

Count 6 – Ms K

4. Ms K was born on [redacted].

5. When she was about eight years old, Ms K lived with her grandparents, Mr and Mrs H, at the Ainslie premises for a period of time. She had come to live there with her two brothers after staying at Marymead children's shelter for a time. The offender was also living there.

6. There were three bedrooms in the Ainslie premises: one was her grandmother’s, one was her grandfather’s and one was the offender's.

7. Ms K used to sleep in her grandmother’s bedroom, which was towards the back of the house. She slept on a mattress on the floor. Her grandmother slept in the bed.

Incident 1

8. Her grandmother used to fall asleep in her chair in the lounge room, before later coming to bed. One evening, her grandmother sent Ms K to bed and stayed in the lounge room.

9. The offender came into her bedroom and put a hand over Ms K’s mouth. Ms K could hear him breathing, because the offender breathed heavily. The room was dimly lit and the bedroom door was shut.

10. The offender put a hand down Ms K's underpants and touched her vagina, for about 5 to 10 minutes. Ms K was wearing a flannelette nightgown and underpants. At one stage he made a shushing sound. Ms K was too scared to say anything.

11. Ms K laid there terrified and the offender left the room.

Incident 2

12. On another occasion, Ms K’s grandmother sent her to bed early.

13. The offender entered Ms K’s bedroom. The offender told Ms K to be quiet and made a shushing noise. Ms K froze and was terrified.

14. The offender put his hand in Ms K's pants and inserted a finger into her vagina, causing Ms K to experience pain. Ms K was terrified. The incident lasted for 5 to 10 minutes.

Incident 3

15. On at least seven subsequent occasions, the offender entered Ms K's bedroom, told Ms K to be quiet and pulled her underpants down her thighs but not fully off. The offender then touched Ms K's vagina with his hands and then performed cunnilingus on her. The cunnilingus would last for about 10 minutes. Ms K was terrified.

16. It did not occur nightly; only when her grandmother would fall asleep in the lounge room.

17. These incidents ceased when her grandmother moved their bedroom to the dining room. She put her bed in the dining room and Ms K slept with her there.

18. Later, Ms K and her brothers moved into a premises in Kingston with Ms K's mother and her mother’s boyfriend.

19. After this, whenever Ms K visited her grandparents she made sure she was not left alone with the offender.

Uncharged

20. When the offender and Ms K were alone in a room together, the offender would make Ms K grab his genital area. The offender would grin. The offender would also grab at his genital area and point at it while smiling.

Disclosures

21. The first time Ms K spoke to anyone about what had occurred was when she told Mr J, at about the age of 16. She subsequently married Mr J.

22. Ms K told her mother who was not supportive of Ms K doing anything about it and was concerned about the embarrassment to the family.

Count 7 – Ms C

23. Ms C was born on [redacted].

24. The offender is Ms C's mother's youngest brother. Ms K is her cousin.

25. Ms C often visited and stayed over at the Ainslie premises when she was a child. For some periods of time, she lived with her grandparents at the Ainslie premises.

Incident 1

26. On an occasion around Easter time, when she was about three years old, Ms C was at the Ainslie premises. There was a lot of family there, including family who were visiting from Victoria.

27. The offender was sitting in a brown armchair in the corner of the lounge room and sat Ms C on his lap, with her bottom on his crotch area. She was wearing tartan pants and a white skivvy, which was unusual as Ms C did not wear pants very often. She was wearing white Bonds underwear.

28. The offender put his hands down her pants and put two fingers in her vagina. It was uncomfortable and painful. The accused then smelled his fingers and made Ms C smell them by holding his fingers to her nose.

29. Other family members were in the room, possibly playing pool at the pool table which had been set up in the lounge room.

30. Ms C distinctly remembers this incident because a photograph was taken of her later that day standing in front of the offender's bedroom window.

Incident 2

31. On several occasions between when she was 3 to 10 years old, the offender would put Ms C on his lap and put his right hand inside her underpants and put his fingers into her vagina. She was usually wearing dresses.

32. It was often painful for Ms C. The offender had yellow stained fingers because he was a heavy smoker, and would make Ms C smell his fingers and rub them across the top of his lip.

33. On one occasion after the offender put his fingers into her vagina, there were red and brown stains on Ms C's underwear when she went to the toilet.

Incident 3

34. On one occasion when Ms C was about four or five years old, she was playing with her sister and Ms K in the yard at the Ainslie premises. There were tents in the yard, possibly due to a family event.

35. The offender grabbed Ms C as the three girls went past the tent. The tent was a large white tent with a number of single beds inside.

36. Her sister and Ms K hid in the bushes waiting for Ms C. When Ms C did not come, Ms K was concerned and went to the tent where Ms C and the offender were. Ms K pulled the tent flap back and saw the offender had Ms C on a bed with her pants down. Ms C's legs were dangling off the end of the bed. The offender was performing cunnilingus on Ms C.

37. Ms K went back and hid in the bushes with Ms C’s sister because she didn't know what to do. Ms C does not recall the incident.

Incident 4

38. On one occasion between when Ms C was about 3 to 10 years old, the offender laid Ms C down on one of the beds at the Ainslie premises. The bed had a floral bedspread. The offender undid his pants, took his penis out of his underwear and rubbed his penis between Ms C's legs.

Uncharged conduct

39. The offender would often move his tongue towards Ms C and laugh, a gesture she later understood to be mimicking cunnilingus. SCC 108 of 2023 – Ms G

Count 5

40. The victim was born on [redacted]. In late 1990, the victim and her mother resided in the same apartment complex as the offender. The victim's mother and the offender commenced an intimate relationship but remained in separate residences. The relationship ended in late 1991 and the victim and her mother moved to a residence in Kingston. The victim’s mother and the offender subsequently reconciled and on 14 May 1993 they got married.

41. The offender, the victim’s mother, and the victim moved to a residence in Giralang. On one occasion when the victim was between two and three years of age, the offender was sitting on the couch in the lounge room and asked the victim to sit on his lap. This occurred during the daytime while the television was on. Nobody else was around at the time. The victim's mother was in hospital due to her pregnancy and the victim was left in the care of the offender.

42. The offender took the victim’s hand and put it on his penis on top of his clothing. The offender was wearing pants with an elastic waistband. The victim could feel the offender's penis becoming erect. The offender then placed the victim’s hand on his penis inside his pants. The victim could feel that the offender’s penis was erect. The offender then pulled his penis out to show her that it was erect. The offender looked at the victim and placed his hand up her dress and put his finger or fingers inside her vagina. The offender moved his finger or fingers around. The victim felt pain. The offender put the victim down and walked away. The victim believes the incident lasted a total of about five minutes.

43. The victim’s mother and the offender separated in late March 1994 and the offender returned to the ACT. In September 1994, the victim and her mother moved to a new address in Junee, NSW. The victim asked her mother questions regarding whether the offender would be able to find her at their new residence. The victim also asked her mother questions such as “do you love me?”. The victim told her mother that “Bluey” or “Daddy Bluey”, which was the victim’s nickname for the offender, had put his “woo-hoo there” gesturing between her thighs. The victim’s mother asked when this happened and the victim stated, “Baby [redacted]”, which the victim’s mother understood to mean when she was giving birth to her son, [redacted].

44. On 4 November 1994, Dr Marsden examined the victim, noted scarring to her hymen and referred the victim to Dr Maloney. The victim’s mother had reported that the victim had stated she was quote “hurt in the bottom” by “Daddy Bluey”, “like a needle” while on his lap. On 17 November 1994, Dr Maloney examined the victim and observed that her hymenal edge was “intact clockwise from about two o’clock to eight o’clock, but severed from eight o’clock through to two o’clock”. The area of severing involved “scarring with a synechiae, drawing part of the hymen out onto the vulva itself”. The victim’s mother told Dr Maloney that the victim described the “needle” as “like what the boys have got”. The victim’s mother further stated that the victim said it had occurred once when the victim’s mother was in hospital. The victim’s mother was in hospital a number of times between 1993 and 1994, in relation to her pregnancies and the births of two children born in May of 1993 and May of 1994.

Victim impact statements

45. Several victim impact statements were before me. I must consider the effect upon the victims of the offending: ss 33(1)(f) and 53(1)(a) of the Crimes (Sentencing) Act 2005 (ACT).

46. The victim impact statements were profoundly sad. The statements collectively and powerfully captured the debilitating, lifelong effects of sexual offending perpetrated against children. The statements recorded the great harm that the offender has directly and indirectly caused. The statements gave detailed voice to the devastation wreaked by sexual offending against children; on victims and the family members trying to support them.

47. A common theme across the descriptions of harm caused to the victims was the erosion of their ability to trust people which continued through their lives, as well as the shame and guilt they felt because of the offender’s actions. The emotional and psychological burdens cast upon the victims because of the offender’s actions was substantial.

Ms C

48. The victim recorded that she has Complex Post-Traumatic Stress Disorder which has had a debilitating effect across many areas of her life. She experiences “intrusive memories, flashbacks, triggers and nightmares” as well as constant hypervigilance and difficulty regulating her emotions. The victim expressed difficulty trusting people which has led to strained personal relationships. She feels constant shame, guilt and self-blame. In addition, the necessity to seek treatment for the psychological impact upon her has been an ongoing financial burden.

Mr J – victim’s husband

49. The victim, Ms K, died in 2024. Her husband of 39 years provided a victim impact statement on her behalf, describing the harm the offending caused to his beloved wife. He wrote that she found it difficult to trust and communicate with men which negatively affected her social life and her ability to work. Mr J recounted that the victim avoided family functions and was distrustful of other people. The level of general distrust generated by the offending caused Ms K to be in a state of constant worry about the safety of their children. Mr J considered the offending against her to be responsible for her physical and mental ill health, as well as profoundly influencing the health of her relationships with her family.

50. Powerfully, Mr J recorded that the discovery by his wife that the offender had gone on to offend against other children had caused her to feel enormous guilt about being unable to come forward earlier to report the conduct perpetrated by the offender against her.

Ms G

51. The victim set out the physical, mental and emotional toll the offending has taken on her; she described living in survival mode her entire life. She described the emotional “barricades” she has faced, and that she has never been able to fully trust other people and their motives. The victim listed the multiple ways in which the offender’s actions have shaped the way that she saw herself. The offender’s actions have had a significant impact upon her life.

Ms W – victim’s mother

52. The mother of Ms G also provided a victim impact statement. It revealed the devastating effect of the offending on Ms W and her daughter which sadly included significant damage to the relationship between them. Ms W wrote of the shame, guilt, worthlessness and self-blame she felt for not being able to protect her child from the offending, which led her to doubt herself as a mother. Ms W continues to suffer knowing that she cannot take the pain away from her daughter. She has isolated herself and felt alone and unsupported. Ms W described always feeling unsafe and consequently she and the victim moved several times. She has nightmares and bad memories of the events in the aftermath of the offending. Ms W described what she perceived to be the unfairness in the offender being able to go on to enjoy his own life, while she and her daughter have been left shattered by his actions.

53. I recognise the courage demonstrated by the victims to speak publicly about a private pain long kept secret. I want to acknowledge the great sadness that clearly accompanied the task for Mr J of giving voice to his late wife’s suffering. Grief is difficult enough without having to contemplate the harm done to a loved one in their lifetime.

54. Each statement demonstrated that the harms caused to the victims by the offender are felt as acutely now, decades later, as they were in the immediate aftermath of the conduct; such is the complex and pervasive effects of sexual offending against children.

55. No sentence I impose can gift to the victims the life they may have led, had the offender not offended against them as he did. It need hardly be said that any shame or guilt in relation to the offending conduct is not for the victims to carry. Shame and guilt are burdens for the offender alone to bear. The victim impact statements greatly assist me to appreciate the nature and extent of the harm caused by the offender and in turn, to recognise it in the sentence I impose.

Nature and circumstances of the offending

56. A consideration of the nature and circumstances of the offending requires an assessment of the objective seriousness of the conduct. The applicable maximum penalties, being the “yardstick” against which to assess the objective seriousness of the offending (Markarian v R [2005] HCA 25; 228 CL at [31]), reflect the seriousness with which sexual offending against children and young people must be treated.

57. So much was captured by the following observation in R v Gavel [2014] NSWCCA 56; 239 A Crim R 469 at [110]: This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].

58. A review of the authorities from this jurisdiction revealed the following factors to be relevant in an assessment of objective seriousness for offences of this nature: (a) The nature of the sexual intercourse or indecent assault: OH v Driessen (No 2) [2015] ACTSC 354 at [42], R v Tully (No 3) [2014] ACTSC 275 at [7], R v Bek (No 2) [2019] ACTSC 324 at [7] at [19], Director of Public Prosecutions v Myers (a pseudonym) [2023] ACTSC 142 at [37]. (b) The age and vulnerability of the victim: R v Goboly [2016] ACTSC 322 at [61]- [62], citing R v Sulemanov [2007] VSCA 288 at [20], R v Bek (No 2) at [7], Myers at [34], Director of Public Prosecutions v van de Zandt (No 3) [2023] ACTSC 359 at [22]-[23]. (c) The circumstances of the offending; whether it was brazen, opportunistic or planned: R v Tully (No 3) at [7] and DPP v KC [2023] ACTSC 213 at [8]. (d) Whether the offending involved a breach of trust; i.e., if it was committed by virtue of the offender’s trusted position in the victim’s life, such as that of a family member or trusted adult: R v Goold (No 1) [2016] ACTSC 95 at [11], van de Zandt at [24], DPP v KC at [8], R v BC (No 4) [2021] ACTSC 119 at [41] and at [127] citing R v BJW [2000] NSWCCA 60; 112 A Crim R 1 at [20], R v Naing [2023] ACTSC 210 at [37]. (e) The duration of the offending: R v Palmer [2017] ACTSC 357 at [22]. (f) Whether there was overt violence or coercion, humiliation or degradation: R v Goold (No 1) at [11], OH v Driessen (No 2) at [42], Myers at [34]. (g) The harm caused to the victim: R v Middleton (No 2) [2020] ACTSC 123 at [76], Myers at [34].

59. Common to all the offending was that the offender was in a position of trust in relation to each victim. The conduct engaged in by the offender represented a gross breach of that trust. The offences occurred in places the victims were entitled to feel safe and secure; either in the home of their grandparents in the case of Counts 6 and 7 or in the family home in the case of Count 5.

60. It is useful to recall the observation in R v BJW at [20]-[21] (cited with approval in R v MC (No 2) [2019] ACTSC 61 at [14] and [71]): The maximum penalties the legislature has set for such offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A CrimR 151 at 154. In R v Hudson (unreported) CCA, 30 July 1998 at 3 Sully and Ireland JJ with whom Spigelman CJ agreed, said: “Recognition is also given to the fact that children in a family situation are virtually helpless against sexual attack by the male parent and that children have a right to be protected from sexual molestation within the family and that this can only be achieved by the courts imposing sentences of a salutary nature.” Similarly, a child aged 13 or younger is virtually helpless in the family unit when sexually abused by a step-parent. All too often the child is afraid to inform upon the step-parent; see generally R v Bamford (unreported) CCA, 23 July 1991 per Lee CJ at CL at 5. The younger the victim the more serious is the criminality; see R v PWH (unreported) CCA, 20 February 1992.

61. I am satisfied beyond reasonable doubt that at the time the offender committed the offences he was motivated by his own sexual gratification. Count 6: indecent assault on a female, course of conduct – Ms K

62. This is a course of conduct offence encompassing three incidents with the third incident made up of multiple occasions. The first incident involved touching the victim’s vagina for 5 to 10 minutes, the second incident involved digital penetration of the victim’s vagina and the third incident involved 7 separate occasions of the offender performing cunnilingus upon the victim. Each of these incidents lasted for less than or around 10 minutes. The victim was between 7 and 10 years of age at the time of each incident.

63. The offending was planned and predatory; the offender waited until his mother was asleep before he entered the victim’s bedroom and told her to be quiet. The conduct engaged in caused pain to the victim. There was no additional violence or coercion inflicted in the commission of the offence, though this was likely unnecessary because of the victim’s young age.

64. The features of the conduct see it properly characterised as a very serious example of the offence.

Count 7: indecent assault on a female, course of conduct – Ms C

65. This is a course of conduct offence encompassing four incidents. The first incident involved digital penetration of the victim’s vagina when she was three years old. This incident involved a degrading and humiliating act when the offender, after digitally penetrating the victim, made her smell his fingers. This offending was brazen, having occurred while other family members were present in the room. The second incident again involved several occasions of digital penetration while the victim was on the offender’s lap. The victim reported seeing red and brown stains on her underwear afterwards. The third incident involved an act of cunnilingus over a 10-minute period in the family backyard. It too was brazen offending, the offender able to be easily discovered, indeed as he was by another victim in this matter, Ms K. The fourth incident involved the offender rubbing his penis between the victim’s legs. The victim was very young at the time, between 3 and 10 years old.

66. The features of the conduct see it properly characterised as a very serious example of the offence.

Count 5: sexual intercourse with a person under 10 years of age – Ms G

67. The victim was very young, between the age of two and three years old when the offending occurred. She was acutely vulnerable because of her age, unable to truly comprehend the conduct or physically remove herself from the offender as she was in his sole care and custody. The offender exploited the trust extended to him by the victim’s mother in leaving the victim in his care.

68. The offending involved digital penetration of the victim’s vagina.

69. The offending was relatively brief and did not involve any overt violence though the victim’s tender age extinguished the need for overt violence, manipulation or coercion.

70. Physical and psychological harm caused to victims of this type of offending can be presumed. In this matter, physical harm was confirmed by the contemporaneous medical reports which recorded the harm caused to the victim’s genitalia while psychological harm was comprehensively recorded in the victim impact statement to which I have referred.

71. The features of this offence see it properly characterised as a serious example of the offence.

Subjective circumstances

72. The material before the Court included an Intensive Correction Order Assessment Report (ICOAR) and a Pre-Sentence Report (PSR), each dated 2 September 2024 and authored by the same employee of ACT Community Corrections.

73. The reports recorded that the offender is 74 years old. He has a history of frequent contact with the criminal justice systems as a juvenile and as an adult. His parents are dead and he has no contact with his family, including his siblings and his two sons. He has been single for 30 years. He has limited friends and associates. He reported spending a large amount of his time at home working on home renovation projects. The offender resides in an ACT Housing property and relies on aged pension payments. He left school at 14 years of age following sporadic attendance due to being in hospital or “in trouble”. He reported a difficult upbringing; his father had been a prisoner of war and was often drunk and abusive. He stated that he and his siblings would often stay with other family members and that he was physically abused and made to steal or beg on behalf of the adults charged with his care. He also disclosed having been sexually assaulted by “lots of” neighbours and family members.

74. The offender advised he has a history of illicit substance abuse and alcoholism though reported he has been abstinent for a number of years. He described his mental health as stable. He has ongoing physical health issues including chronic lung issues, a previously broken nose and facial bones, and reduced vision due to a glass eye. He relies on the use of a mobility scooter.

75. The offender did not recall the offences occurring, noting he would have been heavily under the influence of alcohol and cannabis at the time. He informed the report author that he believed the victims had been “coached”, observing that “people do make things up”.

76. The offender was assessed as having a “below average risk” of sexual re-offending. The author of the pre-sentence report considered that engaging in a program addressing sexual offending would be of benefit to the offender, as well as employing strategies to address his attitude to the offending.

77. The offender was found suitable for an Intensive Correction Order.

The offender’s mental and physical health

78. Reports from a neuropsychologist, Dr Sally McSwiggan, dated 18 July 2024, and a geriatrician, Dr Mary Kulh, dated 18 August 2024, were tendered on behalf of the offender.

Dr McSwiggan

79. Dr McSwiggan conducted a clinical neuropsychological interview with the offender. In her report, she described the offender’s background and upbringing in similar terms to the PSR and ICOAR, however, noted that the offender’s father was sexually abusive toward him which the offender reported left him without a “moral code for many years”. Further, she noted that he has a history of severe and chronic respiratory conditions, and that he has raised cholesterol, gout and limited mobility.

80. The offender again described his mental health as relatively stable. Dr McSwiggan did not consider that the offender presented with any symptoms consistent with a major mental illness. He did not have any cognitive or executive functioning issues. Dr McSwiggan considered the offender would meet the criteria for a previous Substance Use Disorder (alcohol and cannabis) in long remission and for Paedophilic Disorder.

81. In contrast to the offender’s statements to the author of the PSR and ICOAR, the offender admitted in the clinical interview that he engaged in unlawful sexual contact with his nieces and stepdaughter based on his sexual arousal and attraction towards them. The offender recognised that minors cannot consent to sexual activity. The offender identified that his alcohol consumption at the time impacted upon his sexual boundaries. Dr McSwiggan considered that the offender’s “expressions of remorse and regret directed towards the victims demonstrated insight into the impact of his offending from his victims’ perspective”.

82. The offender was assessed by Dr McSwiggan as being of very low risk for sexual re-offending with the major risk factor identified as “an emotional identification with children”. Dr McSwiggan considered he would comply with any community-based orders.

83. Dr McSwiggan gave oral evidence on 5 February 2025 and confirmed the detail of the report she prepared.

84. In cross-examination, Dr McSwiggan confirmed she had not been provided with a copy of the PSR or ICOAR. Dr McSwiggan agreed that the offender’s comments in those reports as to his belief about the victims being coached revealed that he was engaging in victim blaming behaviour and attempting to minimise his offending. She agreed his comments to the report authors were inconsistent with her assessment as to his remorse.

85. Dr McSwiggan stated that while the offender’s comments tempered her assessment of the extent of his remorse, they did not alter her conclusions regarding his very low risk of re-offending. Dr McSwiggan explained that this was because remorse was not a significant factor in the assessment of that risk, being largely based on ‘static’ factors that were not susceptible to change.

Dr Kulh

86. Dr Kuhl provided a detailed account of the offender’s personal background. The offender has a significant history of asthma and smoking and was diagnosed with chronic obstructive pulmonary disease (COPD) in 2000. He remains independent; he manages his own finances and does his own grocery shopping. The offender is under the care of respiratory physicians at Canberra Hospital who he consults at least once annually.

87. The offender has poor lung function which has not significantly deteriorated over the last 24 years. He does not require home oxygen. He has been admitted to hospital with infective exacerbation of his COPD almost annually. He has recurrent episodes of gout. He fractured his right humerus in 2023 after falling off his scooter and had a right clavicle fracture in 2008 which required surgery. Dr Kuhl considered the offender likely has osteoporosis. Dr Kuhl noted the offender is overdue for a colonoscopy screening and in 2013 had multiple colonic polyps and caecal polyps removed. He has a family history of bowel cancer. He has a prosthetic left eye and has undergone right cataract extraction and insertion of a lens. He has intermittent arthritic pain. He underwent transurethral resection of his prostate in 2020. He takes medication for high cholesterol. He underwent surgery for a hernia repair in 2011.

88. Dr Kuhl undertook a respiratory examination of the offender, observing widespread respiratory wheeze and reduced chest expansion. She assessed the offender for cognitive and mental impairment, considering he was “borderline” for significant cognitive impairment which would require reassessment to determine any deterioration.

89. Dr Kuhl assessed the offender as surviving for another five years “at the most”, though noted this was difficult to estimate given he has already survived beyond what would be expected given his diagnosis of severe COPD. She considered that if he developed a severe respiratory infection his life expectancy would be markedly reduced.

90. In terms of the offender’s future medical care, Dr Kuhl considered that as the offender remained independent, he does not yet require a residential aged care facility. She recommended regular vaccinations, access to a general practitioner, annual lung function assessments, being in an environment away from cigarette smoke, not participating in physically challenging activities, and access to a modified disability accessible bed and bathroom.

91. Dr Kuhl considered imprisonment could result in undiagnosed respiratory decompensation during an acute respiratory tract infection, and a risk of unnoticed exacerbation of his chronic lung condition, with an overall increased risk of death from respiratory complications.

92. Dr Kuhl considered the offender would generally be vulnerable in the prison population due to his mobility issues, respiratory limitations and the risks associated with a fall considering his previous fracture traumas.

Capacity of the Alexander Maconochie Centre to accommodate the offender

93. The prosecution tendered an email received on 10 September 2024 from a representative of ACT Corrective Services regarding the management of the health of sentenced prisoners.

94. The prosecution provided the report of Dr Kuhl to the author of the email and sought a response regarding the capacity of the Alexander Maconochie Centre (AMC) to accommodate detainees with poor physical health such as was described for the offender.

95. The email reads: Mr [Black]’s reported medical status would not currently prevent him from residing in any accommodation area (block style or cottage) within the AMC and we currently have other detainees mobilising with similar mobility aids such as the 4 Wheel Walker. The accommodation units have suitable flat seamless flooring and handrails which could be fitted within his cell in the shower and the toilet if required. Mr [Black] can be provided with a wheelchair when attending the health centre or other appointments within the AMC. It is noted motorised scooters are not currently used within the AMC. The AMC would require confirmation for the rationale for the use of a hospital bed, however, that could be done through an Occupational Therapy (OT) assessment which would look at considerations including use of an appropriate foam wedge to ensure an elevated bed position and the use of a pressure rated mattress to reduce pain when laying down. Mr [Black]’s medical conditions would be treated by Justice Health Services through their Doctor and Complex Care Team Registered Nurse.

96. Ms Natalie Veenstra, Acting Assistant Commissioner for Service Improvement and Community Operations at ACT Corrective Services, gave oral evidence on 5 February 2025.

97. Ms Veenstra outlined that when a detainee first enters custody at the AMC, among other things, they are subject to a health assessment by “Justice Health” within two hours of arrival. The health assessment involves a “look at a range of medical histories” and the subsequent provision of advice “on anything relevant to placement and living conditions of that detainee”. Ms Veenstra explained that further assessments will be undertaken if recommended by Justice Health, such as an occupational therapy assessment.

98. In cross-examination, Ms Veenstra confirmed that ACT Corrective Services are also able to refer a detainee to the “Specialist Interventions Unit” for the purpose of undertaking further assessments if necessary. Ms Veenstra identified that the AMC presently and historically housed detainees who require mobility aids and that there is the potential to arrange bedroom and bathroom facilities which cater to individual need.

99. Ms Veenstra confirmed that Justice Health staff are onsite each day until 9:30pm to facilitate ongoing monitoring of detainee health. There are overnight procedures which include an on call medical practitioner. Further, the AMC have procedures in place which guide the transfer of detainees to hospital as required.

100. Ms Veenstra explained that the recognised “significant risk” faced by “sex offenders” results in such detainees often being placed “under a protection regime which offers an additional layer of protection against mainstream detainees”. She confirmed that being in this protected detainee category would not restrict a detainee’s access to facilities which accommodate mobility issues.

101. In cross-examination, Ms Veenstra stated that if a critical medical incident occurred and Justice Health are delayed or unable to physically attend the prison, ACT Corrective Services will arrange for a detainee to be transferred to hospital.

102. On the material and the evidence in the proceedings I am satisfied that the offender’s mobility requirements can be accommodated at the AMC. Further I accept that his physical health needs will be assessed upon his entry to the AMC with a view to identifying his treatment needs including with respect to his COPD. Impact of the offender’s health

103. In CX v The Queen [2017] ACTCA 37, the Court of Appeal considered an offender who presented with advanced age and/or significant health issues and observed: 39. An offender’s age and physical and mental condition are relevant to the sentence imposed, including the nonparole period: s 33(1)(m) Sentencing Act. Imprisonment may be a greater burden because of ill health suffered by an older offender. However, a sentence (including the nonparole period) must appropriately reflect a variety of sentencing purposes, including those that relate to the objective culpability of the offender’s conduct: R v Smith (1987) 44 SASR 587; 589–590 per King CJ; Holyoak v The Queen (1995) 82 A Crim R 502, 507–508; R v Walsh [2009] NSWSC 764. 40. In GS v The Queen [2016] NSWCCA 266, the appellant had been convicted of sexual offences against children aged six and nine years. The Court dismissed his appeal against a total sentence of eight years imprisonment with a five year nonparole period. The appellant had argued that there was a significant likelihood that he would die before the expiration of his nonparole period. Gleeson JA (with whom Fagan and N Adams JJ agreed) said at [94]: ...I am mindful that the need for general deterrence should be viewed in the light of the applicant’s age and ill health and the real risk that he will spend the remainder of his life in custody. However, the applicant’s offending, particularly considering the breach of trust which it involved, is of such a degree of seriousness that, taking into account all the circumstances, I do not regard the 2014 sentences as plainly unreasonable or unjust. And Fagan J observed at [99]–[100]: ... It is a common feature of historical sexual offences committed by older men against very young children that, by the time the victim has reached maturity and is able to summon the courage to make complaint to authorities, the offender will be advanced in years. By the time he is brought to justice he may be quite elderly, or ill-health of later years may have caught up with him. The necessity for the courts to impose penalties which reflect the community’s abhorrence of these crimes and which otherwise fulfil the purposes prescribed in s 3A Crimes (Sentencing Procedure) Act 1999 (NSW) restricts the degree to which sentences can be mitigated on account of the age and/or frailty of the offender. This was considered at length in Holyoak v R (1995) 82 A Crim R 502 at 507 – 508, again in R v DB [2001] NSWCCA 320 at [17], [18] and more recently in Wright v R [2016] NSWCCA 122 at [95] – [97], a case of an elderly historical sex offender who sought to adduce fresh evidence of deterioration in his medical condition following the passing of sentence at first instance. (emphasis added)

104. In The Queen v RLP [2009] VSCA 271 at [39], the Victorian Court of Appeal summarised principles relevant to the appellant’s “advanced years and ill health” as follows: 1․ The age and health of an offender are relevant to the exercise of the sentencing discretion. 2․ Old age or ill health are not determinative of the quantum of sentence. 3․ Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody. 4․ It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody. 5․ Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous. 6․ Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender. 7․ Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence

105. In Jackson v R [2020] NSWCCA 230, the Court observed the following at [5] and [74]- [76]: 5. The sentence must reflect the objective seriousness of the offence and, in the case of an older offender, it may be the case that, in order to reflect the objective seriousness of the offence, a sentence may unavoidably extend for all or most of the offender’s life expectancy: Goebel-McGregor v R [2006] NSWCCA 390 at [128]; Barton v R [2009] NSWCCA 164 at [22]-[24]. The sentence imposed must remain one that is commensurate with the seriousness of the criminality involved and is one that accords with the general moral sense of the community: R v McLean at [45]. … 74. The advanced or more advanced age of an offender is relevant to sentencing in a number of ways. I refer to two only. First, it may render imprisonment more onerous than for someone younger. 75. Secondly, it may be relevant, in fixing an appropriate sentence, that the offender should have an opportunity for rehabilitation in the community at the conclusion of the sentence. Where the effect of a sentence is that it is unlikely that an offender will have any meaningful life after its conclusion, this may be an important consideration in the sentence to be imposed. There are other bases for consideration of the elderly nature of an offender, but it is unnecessary to list them. 76. The age of the applicant was considered by the learned sentencing judge. Ultimately, it is necessary for the sentencing judge to impose an appropriate sentence. The serious nature of the offending conduct requires significant general deterrence. (emphasis added)

106. I have had regard to the principles extracted above. I am satisfied that the offender’s advanced age and substantial ill health will make the service of a period of imprisonment harder than if he were a younger, well man. While it is clear that the offender will receive a level of treatment and care, I acknowledge that it is unlikely that a period of full-time imprisonment will improve his physical health, noting the nature of his conditions and the assessments made as to his life expectancy. These are factors to take into account. But as the authorities demonstrate, the sentence imposed must nonetheless properly reflect the gravity of the offending and the purposes of sentencing of significance for offending of this kind.

Degree of responsibility for the offending

107. The report of Dr McSwiggan confirmed that the offender does not have a mental impairment. The offender explained his offending to her by reference to his “hazardous” alcohol use and his “chaotic and abusive childhood with sexual boundary violations”.

108. The offender was an adult at the time he offended. The offending being what it was, there can be no doubt that the offender engaged in the conduct with knowledge of its significance.

109. The offender was exposed to sexual and physical abuse as a child, he experienced a disrupted education and began interacting with the criminal justice system from an early age. Counsel for the offender submitted that the offender had a disadvantaged childhood of the kind contemplated by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. I am satisfied that he did. The offender’s disadvantaged childhood must be given “full weight”: Bugmy at 595 [44]. The material suggested that the offender’s alcohol use and his blurred sexual boundaries were precipitated by the abuse he suffered as a child. The offending conduct is explained to an extent, by that experience. His moral culpability is accordingly reduced to some degree. As I will later explain, such a finding in this matter, does not necessarily result in a substantial reduction in the sentence imposed.

Remorse

110. To the PSR and ICOAR author, the offender did not remember the offences and said he would have been heavily under the influence of alcohol and cannabis at the time. He expressed a view that the victims had been “coached” and did not express any regret, stating instead “something may have happened, but people do make things up”.

111. Conversely, as I have already recorded, Dr McSwiggan was of the view that the offender was remorseful and had insight into his offences. Dr McSwiggan agreed that her conclusion as to the offender’s level of remorse was tempered by the comments attributed to the offender in the PSR and ICOAR noting they came within two months of her assessment, reflecting inconsistency in the offender’s attitude.

112. The offender has accepted responsibility by virtue of his pleas of guilty. The comments attributed to him in the PSR and ICOAR provide a basis for caution in assessing the extent to which the insights offered to Dr McSwiggan by the offender were genuine. I am satisfied that the offender has expressed some remorse though not to the extent that he has truly reckoned with the gravity of his conduct or with the harm that it undoubtedly caused.

Rehabilitation

113. The offender’s age and physical ill-health have the likely effect of mitigating any risk of re-offending, notwithstanding the finding I have made with respect to remorse. A substantial period of time has passed since the offending conduct occurred and there is no evidence before me that he has reoffended in similar circumstances. The offending was facilitated by the offender exploiting his ready access to the child victims. The nature of the offender’s current social and familial connections no longer affords him such access. As concluded by both Dr McSwiggan and the PSR and ICOAR author, notwithstanding the caution I am satisfied is warranted with respect to his expressions of remorse, I accept that the offender presents a low risk of re-offending.

Criminal history

114. The offender has an extensive criminal history though his most recent offence was committed in 2006 when he was convicted for drink driving. The majority of the charges are from the 1960s, 1970s and 1980s, and relate to driving offences, assault, drunkenness, indecent manner and offensive behaviour.

Time in custody

115. The offender has spent one day in custody in relation to these offences and I will backdate the sentence to be imposed accordingly.

Guilty pleas

Counts 6 and 7

116. The offender entered pleas of guilty to Counts 6 and 7 in the Supreme Court after the matter had been committed for trial. The pleas were entered on 3 January 2024, at a pre-trial hearing for Ms K to give evidence due to her terminal illness. The plea was entered before the victim was required to give evidence.

117. The prosecution accepted there was some utilitarian value in the pleas. Considering the timing of the plea, consistent with Blundell v The Queen [2019] ACTCA 34 at [11]-[12] and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103, I will reduce the sentence by 10 per cent.

Count 5

118. The offender entered the plea of guilty on the morning the trial was to commence. It is properly regarded as a plea “on the steps of the court” and would ordinarily attract a discount between 5 and 10 per cent: see DPP v Padreny [2024] ACTCA 4 at [51]-[53].

119. There was some utilitarian value to the offender’s plea. The plea saved limited court resources to an extent. The plea spared the victim from having to give evidence and from being subject to cross-examination, an experience which, given the nature of the charges, was likely to be at the very least, upsetting. The prosecution submitted any utility to the plea is minimal and the discount afforded should reflect this.

120. In light of those considerations, I will reduce the sentence by 5 per cent in recognition of the plea of guilty.

Sentencing practice

121. I must sentence the offender in accordance with s 34A of the Crimes (Sentencing) Act, that is “in accordance with sentencing practice, including sentencing patterns, at the time of sentencing”.

122. Noting this requirement, I acknowledge the well-recognised limitations of comparable sentences. They illustrate the possible range of sentences available but do not define that range: R v Pham [2015] HCA 39; 256 CLR 550 at [29]. A consideration of comparative sentencing outcomes is not a pursuit of strict mathematical equivalence, rather it is to promote consistency in the application of relevant principles: Hili v The Queen [2010] HCA 45; 242 CLR 520.

123. With those principles in mind, I have had regard to the following outcomes from this jurisdiction which were drawn to my attention by the prosecution: DPP v KC, R v CX (No 2) [2016] ACTSC 325, R v XT [2016] ACTSC 335, R v MC (No 2) and Van de Zandt. In addition, I have had regard to Middleton (No 2) and R v Hunt [2016] ACTSC 52.

Totality

124. Sentencing for several offences as is the case here, requires an appropriate sentence for each offence to be fixed and then questions of accumulation or concurrence, as well as totality, to be considered: Zdravkovic v Queen [2016] ACTCA 53 at [64]. I must avoid any suggestion that multiple offences will result in a discount: Mill v The Queen (1988) 166 CLR 59 at 63; O’Brien v The Queen [2015] ACTCA 47.

125. There is no factual overlap between the offences and accordingly, there is strength to the prosecution submission that “concurrency should not factor to any great extent in the sentences”. This is not a matter where the sentence imposed for one offence could be said to comprehend the criminality of another. There is a need to recognise the separate nature of the offences and of the harm occasioned to each victim. I bear in mind the following observation of the Court of Appeal in R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32 at [92]: A sentence should not be ‘crushing’ in that it induces a sense of hopelessness and destroys prospects of rehabilitation, or too severe as a result of accumulation (noting the severity of a sentence may increase at a greater rate than the increase in its length) R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16]-[17]. Determination

126. The purposes of sentencing are set out at s 7 of the Crimes (Sentencing) Act. There can be no question in this matter that a substantial period of imprisonment is warranted.

127. While I have accepted that the offender’s childhood circumstances operate to reduce his moral culpability to some degree, I do not consider that this is a case where such a finding should result in a substantial reduction in the sentence to be imposed. The offending represented a grave breach of trust, it was premeditated and in the case of two of the victims, it was a deliberate course of conduct. The offending came at a profound and painful cost to each victim, with every aspect of their lives effected by what the offender did to them. The offending occurred when the victims were young children and as a result, it has cast a dark shadow over almost their entire lives. This is a case where the need to give effect to general deterrence, to punish the offender, to denounce the conduct and to recognise the harm suffered by the victims, must predominate.

128. Sensibly, there was no dispute that the s 10 (of the Crimes (Sentencing) Act) ‘threshold’ was crossed and periods of imprisonment were warranted for each offence. No other outcome would properly capture the gravity of the offending.

129. While the offender was assessed as suitable for an intensive correction order such an outcome would be inappropriate. A period of imprisonment served by of an intensive correction order would fail to reflect the gravity of the offending. Counsel for the offender submitted that a partly suspended sentence would be a just and appropriate outcome. I do not agree.

130. The imposition of a partly suspended sentence need not reflect the approach required to set a non-parole period, in terms of the relationship between the total period of imprisonment imposed and the period after which it is suspended.

131. In light of the predominate sentencing considerations, whether under a partly suspended sentence or arising from the need to fix a non-parole period, the period the offender would be required to serve in full-time imprisonment before his release into the community, would be the same. Anything less would be unduly lenient and risk achieving the purposes of sentencing, as well as fail to reflect the community’s “abhorrence” of the offender’s crimes.

132. Additionally, the level of uncertainty which attends to the genuine nature of the offender’s expression of remorse and in turn, his insight into the gravity of his conduct, is a nagging concern. It is a matter which requires consideration before the offender is released into the community and can be appropriately scrutinised by the parole authorities when the offender becomes eligible for release.

133. The offender is elderly and unwell; he does not have a long life ahead of him. I have already acknowledged that his age and physical ill health will make prison more difficult for him. These considerations cannot overwhelm the sentencing task and lead to a sentence (including a non-parole period) that fails to reflect the criminality of his conduct.

134. The offender has a chronic illness for which there is no cure. The five-year life expectancy determined by Dr Kuhl is not guaranteed. I acknowledge that the sentence I impose will have the effect of the offender spending a substantial portion of the time he has left to live, or possibly all the time he has left to live, in prison. This is a necessary consequence of a just and appropriate outcome which fulfills the purposes of sentencing in this matter.

135. The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37], Taylor v The Queen [2014] ACTCA 9 at [19], and O’Brien. I have had regard to those principles. The non-parole period is the period that justice requires the offender to serve in custody, being the minimum period of actual incarceration having regard to the objective seriousness of the offending, the offender’s subjective circumstances, the purposes of sentencing including punishment, denunciation and rehabilitation: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [57]. I will impose a non-parole period toward the lower end of the ‘usual’ range in this jurisdiction in recognition of the offender’s age, ill-health and life expectancy as well as his low risk of re-offending.

136. The starting point for Count 5, sexual intercourse with a person under 10 years, is 5 years of imprisonment reduced to 4 years and 9 months of imprisonment for the offender’s plea of guilty.

137. The starting point for Count 6, indecent assault on a female, is 3 years of imprisonment reduced to 2 years, 8 months and 11 days of imprisonment for the offender’s plea of guilty.

138. The starting point for Count 7, indecent assault on a female, is 3 years of imprisonment reduced to 2 years, 8 months and 11 days of imprisonment for the offender’s plea of guilty.

Orders

139. I make the following orders: (1) On the count of sexual intercourse with a person under 10 years (CC2022/12448), the offender is convicted and sentenced to 4 years and 9 months of imprisonment commencing on 17 March 2025 and ending on 16 December 2029. (2) On the count of indecent assault on a female (CC2022/5840), the offender is convicted and sentenced to 2 years, 8 months and 11 days of imprisonment commencing on 17 March 2029 and ending on 27 November 2031. (3) On the count of indecent assault on a female (CC2022/5848), the offender is convicted and sentenced to 2 years, 8 months and 11 days of imprisonment commencing on 6 July 2030 and ending on 16 March 2033. (4) The total sentence imposed is 8 years of imprisonment commencing 17 March 2025 and ending 16 March 2033. The non-parole period will commence on 17 March 2025 and end on 16 April 2029.

I certify that the preceding one hundred and thirty-nine [139] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: O Ferguson Date: 18 March 2025