HJWG v R

Judgment 1McCLELLAN CJ at CL : The applicant pleaded guilty to 4 charges of sexual assault committed against his daughter. They were: (1)Count 1 - between 11 August 2004 and 10 August 2005 - assault and commit act of indecency complainant under 10 years, namely 7 (Section 61M(2) Crimes Act ). The maximum penalty for this offence is ten years imprisonment. There is a standard non-parole period of 8 years. (2)Count 2 - between 11 August 2004 and 10 August 2006 - sexual intercourse with a person under the age of 10 years, namely 7 or 8 (Section 66A Crimes Act ). The maximum penalty for this offence is 25 years imprisonment. There is a standard non-parole period of 15 years. (3)Count 3 - between 11 August 2006 and 10 August 2008 - assault and commit act of indecency, in circumstances of aggravation, namely under authority (Section 61M(1) Crimes Act ). The maximum penalty for this offence is 7 years imprisonment. There is a standard non-parole period of 5 years. (4)Count 4 - between 11 August 2006 and 10 August 2008 - assault and commit act of indecency, in circumstances of aggravation, namely under authority (Section 61M(1) Crimes Act ). The maximum penalty for this offence is 7 years imprisonment. There is a standard non-parole period of 5 years. 2The sentencing judge imposed the following sentences: (1)Count 1 - imprisonment for 1 year and 10 months and 15 days commencing 3 December 2009 with a non-parole period of 1 year 1 month 15 days. (2)Count 2 - imprisonment for 9 years commencing 3 December 2011 to 2 December 2020 with a non-parole period of 6 years from 3 December 2011 to 2 December 2017. (3)Count 3 - imprisonment for 4 years 6 months commencing 3 June 2010 to 2 December 2014 with a non-parole period of 2 years 8 months 11 days. (4)Count 4 - imprisonment for 4 years 6 months commencing 3 December 2010 to 2 June 2015 with a non-parole period of 2 years 8 months and 12 days. 3Accordingly the aggregate term of imprisonment was 11 years with an effective non-parole period of 8 years. The sentencing judge made a finding of special circumstances and provided a ratio of non-parole period to the head sentence of 72.72%. 4The relevant facts have been summarised by the applicant. "The applicant is the natural father of the complainant, MGS. The complainant was born on 11 August 1997. In 2001 the marriage of the applicant and the complainant's natural mother broke down. The parents remained living under the same roof until the beginning of 2007. In 2007 the applicant moved out to other accommodation but continued to have regular access with the complainant on an informal basis. On 4 January 2009 the applicant brought the complainant back home to her mother following an access visit. The mother observed the complainant was visibly upset. The mother said to the applicant, 'Do you want to run this one by me?' The applicant responded, 'Ooh yeah, it's a biggie, you better take a seat.' The applicant said, 'You have more power than ever, eighteen months to two years ago my head wasn't right and I touched MGS inappropriately.' On 12 January 2009 the complainant attended the Penrith Joint Investigation Response team office at Emu Plains and participated in an electronically recorded interview. Count 1 - The complainant disclosed an incident which occurred when she was around 7 years of age. She stated that the incident occurred at the parents' shared premises at Blaxland. The complainant stated that one evening she went to the bedroom of the applicant where he was reading a book and the television was on. The complainant stated that a television advertisement came on depicting 2 adults kissing in the front seat of a motor vehicle whilst they were being 'watched' by their children who were shocked. The complainant stated that she asked the applicant if she could 'practice' with him. The applicant agreed and a short time later the applicant kissed the complainant on the mouth and put his tongue inside her mouth. The complainant stated that this was 'gross' and tried to keep her tongue away from the applicant's tongue. Count 2 - A further incident was described as occurring when the complainant was 7 or 8 years. The complainant said that she and the applicant were having a shower together and they were both naked. The complainant stated that the applicant started talking about the complainant going out and being raped. The applicant then inserted a finger into the complainant's anus. She states that it 'went right up' and 'really hurt.' Count 3 - During the record of interview the complainant disclosed another incident when she was aged 9 or 10. She stated that she was on an access visit to the applicant's home at Lawson. One morning she lay next to the applicant whilst they watched a children's program on television. The applicant started to rub the complainant's back, then after a while moved his hand to her bottom. He rubbed his hand on the inner cheek of the bottom. He did not penetrate her anus. The complainant stated that the applicant then rubbed his fingers up and down around the complainant's vagina but did not penetrate the vagina. Count 4 - The complainant stated that while Count 3 occurred she asked the applicant if she could touch his penis. He replied, 'Yes, by all means.' The applicant told her to 'squeeze it really hard' . The complainant placed her hand on the applicant's penis and squeezed. The complainant told police she wanted to touch his testicles. She told police that just after that occurred the applicant said he was going to have a nap. The applicant told the complainant she could touch his testicles. The applicant put the complainant's hands on his testicles and said, 'Don't worry you can feel them.' The applicant kept the complainant's hands on his testicles for 2 seconds. Counts 3 and 4 were alleged to have occurred between 11 August 2006 and 10 August 2008 when the complainant was 9 or 10 years old." 5The applicant was aged 54 at the time of sentence. He left school at Year 10 and has worked as a director and producer of television. He gave evidence at the sentencing hearing when he expressed remorse for his actions. 6The applicant has been assessed for his static and dynamic risk factors and has been placed in the low range of risk for sexual reoffending. He participated in a community based sex offender treatment program prior to being sentenced. That program was conducted by the Rev Dr Peter Powell who assessed his risk of reoffending as being in the low range but was assessed as likely to benefit from psychotherapy and treatment. 7The applicant raised four grounds of appeal.