R v Alfred

Introduction

1. The agreed facts are extensive and based primarily on what the offender told police. What follows is a summary. I note that in the agreed facts terms such as "consent" and "agreement" are used. To be clear, a child aged under 16 cannot lawfully agree to sexual intercourse. Consent obtained by a parent with care and control over a child is not true consent and can never justify any sexual activity with a child. To his credit the offender does not now suggest otherwise.
2. On 28 March 2020 the offender made admissions to his partner Sarah Green to committing sexual acts with his children. He told Sarah Green that he had something he really wanted to get off his chest and that he wanted to tell her his deepest desires. He said that the notorious destruction of Malaysian Flight 17 triggered something in him and he felt he had to give the children the most pleasure they could receive in life.
3. He told her that he had been battling a sickness for 30 years and that he "had a demon that takes control of his brain, he can't stop". He described licking children as being "the elixir of life" and the "fountain of youth".
4. He said he did what he did out of love and education. He said he always asked for permission and on a few occasions when Rose Green had asked him to stop and he had done so. The offender said he would like to penetrate her when she was ready, but not before she turned eight years old. The offender said his preferred "age group" was between eight and eleven years old. He said he had seen the complainants licking each other's vaginas and that he had told them that it was okay.
5. On 30 March 2020 Sarah Green spoke to the offender again and had an open discussion about the "naughty game". She tried to explain the consequences of his actions and Googled 'chemical castration'. Initially, Sarah Green did not call the police as she wanted the offender to recover. The offender did not want to seek treatment. She spoke to Rose Green and asked if she wanted Daddy to keep playing the game, the complainant responded, "No, not so much". The offender apologised to Rose Green for what he was doing to her and got down on his knees saying, "Daddy is sick, it's something I have to do". He told the complainant, "Mummy knows about the naughty game and it is okay".
6. At about 5am on 1st April 2020 Sarah Green called 1800RESPECT and told them what had been happening. Police arrived at about 7.30 and the offender was arrested for unrelated offences. Rose Green was interviewed soon after the arrest. I have already recounted some of the things she said.
7. Following his arrest and court proceedings interstate he came to New South Wales.
8. On 6 August 2020 Ivy Brown disclosed to the Child Abuse Unit that when she was four years old she spent the night in the offender's unit and slept naked with him in his bed; she could not recall if anything happened to her.
9. On 11 September 2020 the offender attended Wollongong Police Station. He was arrested for sexual offences against his daughters based primarily on his confessions to Sarah Green, with some corroboration, I suspect, from what had been said by Rose Green. He then participated in an electronically recorded interview.
10. During this interview with police, he told them of his actions towards his daughters and stepdaughter. He stated he knew what he was doing and he had succumbed to his demons, and he got what he wanted. The events, he said, occurred after drinking large amounts of alcohol and prescription medication. He said, "I believed I was educating the girls and letting them know about sexual pleasure…. I loved them in a way like all fathers should do. I loved Rose Green like she was my own. I'm the only father she has ever known… I'm sad they will grow up without their father's love and support. I told them I'm sorry."
11. The offences summarised below are based on the admissions made on 11 September 2020.

Count 1 - Indecent assault, person under 16 (DV).

1. The offender made admissions during his interview to touching Ivy Brown on the vagina while they shared his bed. He told police that one night between 9 June 2014 and August 2015 he moved her underwear to the side and looked at her vagina, and later he touched her vagina and clitoris with his hand. Ivy Brown was between four and five years old at the time.

Offences Involving Rose Green and Violet Alfred

1. In April 2019 the offender and Sarah Green were living in a small town in New South Wales. Following a domestic dispute Sarah Green took her son from another relationship and went to her mother's home. She left the offender to care for the complainants and their young son.
2. The offender was then a sole parent to three children from April 2019 to the end of October 2019 when Sarah Green returned to the family home. He sexually abused both Rose Green and Violet Alfred during the period April 19 to October 2019, there are also matters that occurred interstate.

Sequence 2 - Sexual intercourse child under 10 (DV) - Rose Green - cunnilingus

1. Between April 2019 and May 2019 the offender had a lengthy conversation with the complainants Rose Green and Violet Alfred about what sexual consent means. Following this conversation he approached Rose Green and said, "I'd like to lick your vagina" she 'agreed' and the offender took her to his bedroom and licked her vagina and clitoris with his tongue.
2. The offender stated the complainant seemed to enjoy this experience and the next time the complainant "instigated it herself".

Form 1 - Sequence 4 - Sexual intercourse with child under 10 (DV) - Rose Green -cunnilingus- Form 1 relates to sequence 9.

1. Between April 19 and October 2019 the offender approached Rose Green and asked for consent to lick her vagina. She agreed and the offender licked her vagina and her clitoris. Violet Alfred witnessed him doing this.
2. The offender told police licking Rose Green's vagina occurred on a regular basis. He could not recall every incident. He estimated this act occurred at least ten times during the seven-month period that Sarah Green was living away from home. The complainant Rose Green was between six and seven years old at the time.

Sequence 5 - Sexual intercourse with child under 10 years (DV) - Violet Alfred - cunnilingus

1. Following the incident in sequence 4 the offender asked Violet Alfred if she would like a turn. She 'agreed' and the offender stated he licked her vagina as well. The offender stated she seemed to enjoy this. The complainant was between two and three years old at the time.
2. The offender explained that the girls would call these acts the "secret game" and would regularly request to play this with him. The offender stated that he asked the complainants not to tell anyone about the "secret game" as "Daddy will die in gaol if you tell anyone". The offender told police he deeply regrets saying those words to his daughters as he believed that they would have had a strong impact on them.

Sequence 9 - Sexual intercourse with child under 10 years - Rose Green - fellatio

1. On one occasion between April 19 and October 2019 the offender said that Rose Green agreed to perform fellatio on him inside the main bedroom of the family home. She did so and he ejaculated onto the bedsheets or into a tissue. He told police he was unsure of exactly how many times this type of incident occurred. He believed Rose Green did not appear to enjoy this experience. She was aged between six and seven at the time.

Form 1 - Sequence 10 - Sexual intercourse child under 10 (DV) - Rose Green - fellatio - Form 1 relate to sequence 9

Form 1 - Sequence 3 - Sexual intercourse child under 10 (DV) - Rose Green - cunnilingus - Form 1 relate to sequence 9

Sequence 16 - Sexual act, child under 10 (DV) - Rose Green - masturbation

1. The offender stated on another occasion between April 19 and October 2019 Rose Green performed fellatio on him again, in the master bedroom of the family home. He did not ejaculate.
2. He then stopped performing fellatio and licked her vagina and clitoris.
3. He then masturbated to ejaculation onto either a towel or a tissue. She was between six and seven years old at the time.

Form 1 - Sequence 6 - Sexual intercourse with a child under 10 (DV) - Violet Alfred - cunnilingus

Form 1 - Sequence 11 - Sexual intercourse with a child under 10 (DV) - Violet Alfred - fellatio

1. The offender said that on one occasion between April 19 and October 2019 the complainant Violet Alfred asked to play the "naughty game". The offender said, "We really shouldn't" but then agreed, "Let's play then" and licked the complainant's vagina and clitoris for a while. The offender said Violet Alfred "just wanted to make me happy" so she performed fellatio on him and he ejaculated. She was between two and three years old at the time.
2. The offender was unsure if Rose Green was present when this occurred and could not remember whether these incidents were the only times the complainant had performed fellatio on him.

Sequence 17 - Sexual intercourse with child under 10 (DV) - Rose Green - rubbing of penis on outer aspects of vagina

1. The offender gave details of another occasion between April 19 and October 2019. When Rose Green was laying on his bed he rubbed the tip of his penis around the outer aspects of her vagina, he then ejaculated on her genitalia.
2. He told police he had never penetrated her vaginal orifice with his penis because he did not want to cause any physical damage to her. She was between six and seven years old at the time.

Sequence 18 - Sexual intercourse with child under 10 (DV) - Rose Green - rubbing of penis on outer aspects of vagina

1. On one other occasion between April 19 and October 2019 the offender performed the same act of rubbing the tip of his penis around the outer aspects of the complainant's vagina in the main bedroom of the family home. She was between six and seven years old.

Sequence 7 - Sexual intercourse child under 10 (DV) - Violet Alfred - rubbing of penis on outer aspects of her vagina

1. Between April 19 and October 2019 the offender, in the main bedroom, rubbed the end of his penis around the outer aspects of Violet Alfred's vagina. He ejaculated on the outside of her genitalia. She was between two and three years old at the time.

Interstate

1. After Sarah Green moved back to the family home the offending became less frequent as he didn't have access to the children as often. He made admissions to Sarah Green about committing further sexual offences against Rose Green on two occasions. He denied committing any offences against Violet Alfred while he was interstate. He said he was more attracted to Rose Green.

Indecent assault of a child - sexual act with a child- sexual intercourse with a child

1. I must give effect to basic principles of sentencing law set out in the Crimes (Sentencing Procedure) Act and common law. One important principle is that the sentence of imprisonment should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime, considered in the light of its subjective circumstances.
2. I start with a premise, every act that involved the sexual exploitation of a child is serious. "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": see Clarkson v R [2011] VSCA 152; R v Gavel [2014] NSWCCA 56.
3. This is one important reason for the high maximum penalties and high standard non-parole periods fixed for such matters.
4. It is accepted that damage caused by a sexual offence with a child can be profound. The impact is even more serious when a relationship such as father/daughter or father/stepdaughter exists. The possibility of very substantial harm being sustained is one of the reasons the legislature enacted substantial maximum penalties.
5. While the actual effects of child sexual abuse depend on many factors and the symptom constellations can vary, it is accepted that such acts interfere with the development of children and may be with them forever. They take away from a right of every child to have support and love and the Courts do not underestimate the degree of disruption to family life that can follow from such acts and their subsequent disclosure.
6. The diversity of abuse experience means that the outcomes of child sexual abuse will be diverse: The social dynamics and impacts of institutional child sexual abuse, Dianna T Kenny PhD Professor of Psychology, The University of Sydney, Judicial Officer's Bulletin, September 2017, Volume 29 No 8.
7. Further, when assessing the objective seriousness of sexual intercourse offences against children the actual character of the act involved is important. While no one type of intercourse is of itself more or less serious than the other, the nature of the intercourse can be of significance because it is often the degree of physical contact involved, the time over which the acts occurred and whether any harm, hurt, injury, physical or psychological, resulted. Other matters that bear on the assessment, include the age difference, the relationship between the people and the relationship and the age relevant to the range encompassed by the offence; the younger the child the more serious the offence; R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [42] (Latham J); RJA v R (2008) 185 A Crim R 178 at [13].
8. I look at the nature of the penetration, the extent of the penetration, additionally I look at the time over which the acts occurred. In particular here, of course, the relationship of the perpetrator to the child is of particular relevance.

Indecent assault - Ivy Brown

1. I have to consider the actual character of the assaults: R v Van Ryn [2016] NSWCCA 1. And the degree of physical contact involved: Corby v R [2010] NSWCCA 146 at [72]:

• Ivy Brown was very young.
• There was a grave breach of trust as the offender was her father.
• He was caring for his daughter on an access visit.
• She was effectively in her own home, the home of her father, where she should have been, and felt, safe.
• That she was asleep or unaware of the offence is not a mitigating factor as a sleeping child is additionally vulnerable; R v JP [2015] NSWCCA 267 at [79].

1. I could not find beyond reasonable doubt that the offender caused pain to the child's vagina during the incident for sentence or at all.

Rose Green

1. So far as Rose Green was concerned the offender was her father and the only parent caring for her when the offences were committed. Accordingly, the offences involved a significant breach of trust: R v BA [2014] NSWCCA 148 at [33]: LS & MH [2020] NSWCCA 148 at [147]. The offences were committed in her home. The offender used his position as parent to commit the offences, his rationalisation of his offending and his threat that he would die in gaol if she disclosed, indicates manipulation and could be additionally potentially damaging to a young girl.
2. Sequence 4 was committed in the presence of the younger sister, leading to the commission of the offences against the younger sister. It is an aggravating feature in which is directed to protecting children from the deleterious effect of witnessing serious crimes: s 21A(2)(ea) Crimes (Sentencing Procedure Act 1999; Arvinthan v R [2022] NSWCCA 44 at [36] & [39].
3. The offences involved some penetration by an adult penis of the outer aspects of the genitals. There was at least one occasion, sequence 17, where there was ejaculation on the child' genitals. The offences involved a high degree of sexual exploitation of his stepdaughter. There was also a high degree of emotional manipulation. I can only find that the acts occurred for his sexual gratification. The absence of force is not a mitigating factor, as force would make this offending more serious.
4. The offending was repeated and sustained over a period, it involved thought, planning and justification, it was not disinhibited behaviour.

Violet Alfred

1. Violet Alfred was introduced to sexual offending when she witnessed her father performing sexual acts on Rose Green. Again, she was manipulated and pulled into the secret game. Again, she was aware of the comment, "Daddy would die in gaol". As with Rose Green the incidents were not isolated, they occurred on many occasions, but I sentence for the particular offence. She was encouraged to perform fellatio (sequence 11). There was some penetration of her genitalia with an erect male penis and ejaculation on the child's body. She was extremely young. Each offence involved a serious breach of trust. As the offender was her father, that compounds that breach. They were committed in her home and she was subject to a range of sexual offending.
2. The offending was repeated and sustained over a period, it involved thought, planning and justification, it was not disinhibited behaviour.

Forms 1

1. There are matters on Forms 1. I will take them into account when I determine the appropriate penalty for the offence to which they relate; Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146; and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. I would not "in any sense" impose sentences for these offences, Attorney General's Application No. 1 at [68], but they do operate to increase the sentence that would otherwise be appropriate. I do so as part of my instinctive synthesis of all the matters required to be taken into account on sentence. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1, Application No. 1 at [39] - [42]. In cases such as here that increase can be substantial; Attorney General's Application No. 1 at 18.

Maximum penalties and standard non-parole periods

1. Count 1, an offence pursuant to s 61M(2), as it then was, of the Crimes Act 1900, carried a maximum penalty of ten years imprisonment with a standard non-parole period of eight years. Section 66A offences carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The s 66DC offence, sequence 16, involving Rose Green, carried a maximum penalty of seven years imprisonment.
2. Those penalties are important guides to the exercise of my discretion. I am required to give content to the standard non-parole period. I am required, as I have sought to do, to assess the objective seriousness of the offending without reference to matters personal to the offender, and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39; Tepania v R [2018] NSWCCA 247 [103] to [120]. However, as the High Court in Muldrock made clear, neither can I engage in a staged process of sentencing; at [28]. The process of comparing and contrasting the actual offence with an abstract one is not necessary nor is it necessary to identify features of the offence which were or were not take into account when considering the role of the standard non-parole period: s 54B(6) Crimes (Sentencing Procedure) Act ;Tepania v R.

Indecent assault

1. The indecent assault matter carried at the time a maximum penalty of ten years, the standard non-parole period was eight years. The ratio between that maximum and the standard non-parole period was the subject of criticism. In BT v R [2010] NSWCCA 267 RS Hulme J described the relativity between the maximum and the standard non-parole period as "absurd. Nevertheless, an eight year standard non-parole period was prescribed by the legislature and the courts were required to give effect to it: R v NJK [2011] NSWCCA 151 at [40].
2. I note that the recent changes to the legislation of sexual acts have more rational sentencing regime. When I sentence for the s 66DC matter seven years imprisonment must be taken into account as a maximum. There is no standard non-parole period.

Child Sexual intercourse offences

1. Section 66A is one of the most amended sections in the Crimes Act: Sentencing Trends and Issues no. 44, Judicial Commission Monograph, July 2015, P Poletti, P Mizzi, H Donnelly. The increase in the maximum penalty to life imprisonment was made in 2009. An increase in the maximum penalty is a signal to the Court that sentences should increase; Muldrock v The Queen, (2011) 244 CLR 120 at [31]. While actual life is reserved for the worse category of case, the fixing of life as a maximum reflects Parliament's attitude on behalf of the community as to the seriousness of the offence. Careful attention to maximum penalties and, where applicable, standard non-parole periods is required.
2. That being said, not every matter has to be or can be fitted into categories, as human behaviour and human characteristics are too varied. I have to synthesise competing features and attempt to translate the complexity of the human condition and human behaviour to the mathematics here of units of punishment usually expressed in time: Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14.
3. Ultimately, I have to identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to the appropriate sentence; Muldrock; Markarian; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45.

The guilty plea

1. I will be imposing an aggregate sentence. Each indicated sentence will be reduced by 25% because of the utilitarian value of the plea of guilty, s 25D Crimes (Sentencing Procedure) Act. That includes, given its particular circumstances, the matter where the plea was entered this morning. I will take care that the process of accumulation does not erode that benefit.
2. Each guilty plea has aspects other than their strictly utilitarian value that must be taken into account. There have been practical indications of remorse. The value of a guilty plea or guilty pleas that avoids young children being exposed to court and having their sexual experience, their terrible experiences, poured over and reviewed should not be undervalued: R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at [3]. A guilty plea, particularly one of involving revelations that may never have come to light, vindicates the children and their experience. Each child was saved the trauma associated with being compelled first to remember and then repeat to police in court what was done to them.
3. However, care needs to be taken in not double-counting matters in mitigation, particularly when as here I must synthesise factors which go hand in hand with required common law or statutory deductions.

Disclosure of unknown guilt.

1. That brings me to the topic of the offender's disclose of his guilt. This strictly, was not a matter where there had been voluntary disclosure of involvement in serious crimes of which the police had no knowledge. Here, New South Wales Police were aware that sexual crimes of some sort had been committed before Alfred came to them and made his admissions on 11 September 2020.
2. But, there are four important caveats to that strict proposition that cannot be ignored. The first, is that his admissions to his partner and his revelations to her formed the basis of for his arrest and the police investigation that had occurred prior to 11 September 2020. Secondly, Ivy Brown had disclosed in her August 2020 interview, at worst, inappropriate behaviour, not a crime. Thirdly, the other children had made no specific complaint of anything other than very suspicious and sexually orientated behaviour, which may have been corroborative. Fourthly, his admissions provided the very good reason for them not being further interrogated or interviewed by specialists about what occurred
3. Offenders must be encouraged to come forward and confess crimes that may otherwise not be resolved by the courts. This is an important public policy consideration. If a conviction follows upon a plea of guilty that is in itself the result of voluntary disclosure of guilt or particulars of offending by the person concerned, the courts are required to extend leniency to them. If it is unlikely that guilt would have otherwise been discovered and established, a considerable element of leniency should properly be extended by the sentencing judge: R v Ellis (1986) 6 NSWLR 603 at 605. "Thus, according to Ellis, the degree of leniency to be shown for the disclosure of unknown offences will vary according to (1) the likelihood that the offences would have been discovered by the authorities; and (2) the likelihood that the offences could have been proven beyond reasonable doubt in a court without the disclosure" Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [12]
4. The Ellis factor is not to be rigidly or mechanically applied. Sentencing is not a mathematical exercise: McKinley v R [2022] NSWCCA 14 at [40]- [41].
5. I have had regard to what was said by Basten J in R v Windle [2012] NSWCCA 222, and the case referred to me this morning of R v SS [2021] NSWCCA 56 and submissions of Crown and Mr Steward in relation to this point. Here the reduction in penalty for the detailed disclosures made to police, and the fact that the initial disclosure was made by him and not discovered by others or by complaint, must be significant.
6. While the Crown accepts the offender's specific admissions to police in his interview assisted the authorities they submit this is not a case where his offending was not unknown to authorities because at the time of his arrest there was evidence of the admissions to his partner. While I give that submission some weight, as I have sought to do, I do not believe it seriously derogates from the requirement that I give the offender a substantial reduction in sentence for public interest reasons. This prosecution is based upon what he said to police. He chose to make the admissions to his partner knowing once he did the facts might come out. Without his admissions, first to his partner and then in detail to police, there is a very real possibility that there would have either been considerable delay in bringing the matter to court or that what he did to his victims would remain unpunished. Nor would the many aggravating features or details relied upon by the Crown have come to light. There must be a significant reduction here.
7. While these offences may have come to light at some time in the future their discovery and prosecution would not have occurred in the current timeframe if Alfred had not he had come to his wife and then gone to the police: R v Ellis; DBW v R [2007] NSWCCA 236. While it is possible the children would have disclosed after they grew up, or got older, and the offender left their lives, this is by no means certain. And it is by no means certain they would or could have retained in their memory sufficient details for prosecutions to succeed at all, let alone prosecutions to be resolved in the number and detail of the matters presently before the Court.
8. Section 23 of the Crimes (Sentencing Procedure) Act applies to Alfred's disclosures. This is a case where a quantified discount should be given: Panetta [2116] NSWCCA 85; Howard v R [2019] NSWCCA 109; AG v R [2016] NSWCCA 102; R v AA [2017] NSWCCA 84; CMB v Attorney General for New South Wales [2015] HCA 9. Once it is accepted that such assistance falls within 23(1) it necessarily falls within the other subsections of s 23, in particular s 24. I am required to make explicit the nature and extent of any reduction of the sentence from that which would otherwise have been imposed absent the assistance.
9. Section 23 considerations relevantly include here the significance and usefulness of the assistance, the truthfulness, completeness and reliability of the information provided, the nature and extent of the offender's assistance, the timeliness of the assistance and whether the assistance concerns the offences for which the offender is being sentenced.
10. I have not been asked to, nor could I, parse possible offences that might have resulted from the disclosures to Sarah Green supported possibly by what was said by Rose Green. It seems appropriate here to apply the discount equally to each indicated offence because the particulars of each of them were supplied by the offender.

Amount of the deduction

1. The principles applying to determining assistance are summarised fully by the Court of Criminal Appeal in cases such as R v XX (2017) 266 A Crim R 132; [2017] NSWCCA 90.
2. There is no fixed tariff, although in SZ v Regina [2007] NSWCCA 19 the Court made it clear that a combined discount for pleas of guilty and assistance should not normally exceed 50% and that discounts exceeding 50% should be reserved for very exceptional circumstances.
3. The reduction here needs to be sufficiently significant so that it might encourage those persons who have committed crimes of a similar nature to come forward and confess, notwithstanding police are unaware of either the crime or the details and circumstances of their involvement or the extent of their involvement: McKinley v R at [56]-[57]. Here, while in many ways exceptional, the requirements of s 23(4) also apply.
4. Taking all of those matters into account, however, apply an additional reduction of 25% for that considerable assistance.

Record

1. The offender has a criminal record for drug matters and a domestic violence offence, but otherwise no matters indicate, other than the now admitted crimes, that he is not entitled to some leniency. He has been in custody since his arrest on 11 September 2020.

Victim Impact Statements

1. I have had the benefit of Victim Impact Statements prepared on behalf of his child victims. The Victim Impact Statements in relation to Ivy Brown was prepared and written by her aunt. A Victim Impact Statement must relate to any personal harm suffered by the victim as a direct result of the offence. Some of the matters went beyond what is set out in ss 26 and 28 of the Crimes (Sentencing Procedure) Act and Regulations by adopting an advocacy role and making personal comments.
2. I will take into account the undoubted harm this offence caused, but I will focus primarily on the agreed facts and the matters that were raised.
3. At some point Ivy Brown and the other young girls may become aware of these proceedings and what was done to them. It appears at the moment they do not know what their father has done in any detail or what the consequences to him will be. There may be a day of reckoning, but that involves a degree of speculation. It could not be assumed anything other than that there will be negative aspects to any revelation of these proceedings: see WM V R [2020] NSWCCA 9.
4. Turning briefly to the admissible portions of what was said and read to me today by Ivy Brown's Aunt. She told me that Ivy Brown is now a 12-year-old with hopes and aspirations for the future. Sadly, she still struggles to develop and maintain peer relationships and has been the butt of cruel jokes and bullying at school. She finds it difficult to self-regulate her emotions and she questions herself constantly. She has expressed suicidal thoughts. She also says that she wishes she had a Dad, it would be nice to have his support. But she also blames her dad for everything that is wrong in the world, and she felt things would have been very different had she had a normal father. Her trauma and hurt has been compounded by the traumatic death of her mother last year.
5. She has family support and they all have hopes for her future but there is a long way to go.
6. So far as Violet Alfred and Rose Green are concerned, reports were prepared by a psychologist Ms Cook. Ms Cook notes her serious concerns for Rose Green's future and psychological wellbeing. At present Rose Green continues to deny or avoid discussing the experience, however, careful consultation and planning is underway. Ms Cook believes that if Rose Green continues to believe or think that she was responsible for the abuse it will be difficult for her to process her trauma and that she will bear an enormous emotional burden. She notes a real risk of Rose Green experiencing sad feelings, and that she could be distracted from having happy thoughts. This may become unmanageable if, long-term, she internalises sadness and trauma. She is at high risk of experiencing future problematic behaviour and externalising behaviours. It is critical that Rose Green be afforded a caregiving environment where she feels safe, emotionally validated and, in particular, does not feel responsible for the feelings and actions of an adult. She requires consistent, emotionally entuned care.
7. Ms Cook also has serious concerns so far as Violet Alfred is concerned, regarding the consequences of her experience of sexual abuse subject of the charges. Information gathered during her interview highlighted Violet Alfred's
8. fear of her father That fear could impact on her experience of abuse and her current sense of safety. She notes engagement in problematic sexual behaviours and she fears that there will be significant and adverse impacts on the way she connects with other children and adults. Violet Alfred still has experiences of feeling unsafe and sadness. Ms Cook draws my attention to general and documented consequences of offences such as these; increasing the risk of future mental health issues and difficulties forming trusting and safe relationships.
9. It is critical that each child victim be professionally assisted and not subject to additional stresses that might turn up the volume and increase the risk of future trauma. If at any stage they come to read this judgment it is critically important that each of them understands - they did nothing wrong. They did not consent to any act, they were manipulated and controlled by someone who was not concerned for their interests; only his own. The only person responsible for Alfred being in gaol and being unable to be a father to his children is Alfred.

COVID

1. Alfred has spent his time in custody during the COVID pandemic. I have had no specific evidence of the impact of the pandemic restrictions on him, but I have heard more than enough evidence over the past two years about the present procedures in gaol. Some of those procedures can be found on the Corrective Services website so I and everyone in the community can be aware of them. There have been more lockdowns; there is greater risk of being placed in quarantine, less access to programs, less access to work. Alfred because of the nature of his offences can never get early release to parole; should those emergency provisions ever be implemented. He has and will continue to be subject to COVID measures, measures about which he has no control including what cell he is in, who he mixes with and lockdowns and quarantines and the like; matters I must take into account.

Subjective case

1. Alfred's subjective case is provided in a letter he wrote to me today, in a report from Ms Duffy, a report from Dr Furst and personal references. Most of what is set out in those documents is uncontroversial.
2. He was born in 1979. He has worked as a truck driver and a musician. He grew up locally. His parents separated and he was raised by his mother and stepfather. He reports a strict but not violent upbringing. His nan, his rock, died in 2021. His mother and stepfather remain supportive. It seems he was a slow learner at primary school and he only went to Year 9 at High School. After he left school he has done some TAFE training but primarily has worked as a truck driver. This type of work continued until 2013 but it ended due to his problematic drinking. He was preparing to set up his own business when these matters came to light.
3. He has been in two relationships. The first, for four years, with his now deceased partner, the mother of Ivy Brown. The second was with Sarah Green, the mother of the two other complainants. She brought a boy to the relationship and, of course, Rose Green. They had two children, Violet Alfred and the young boy.
4. Alfred reports being a heavy drinker but has been able to abstain for periods, including when he was a full-time dad, but he went back to drinking. There was a diagnosis of Adult Attention Deficit Disorder and a Major Depressive Disorder, for which he received Seroquel and Dexamphetamine.
5. He reports that in gaol he has turned to Buddhism to provide some support and to keep him on an even keel. His referees have seen him change from particularly, his going from an initial denial of the impact of his offending to acceptance of the harm he has caused. They say that the man they knew was someone who would stand by them and that he was a generous and caring friend. They appeared genuinely shocked by the revelations but indicate that he appears dedicated to changing his life, helped by him embracing Buddhism.
6. Ms Duffy provided Alfred's personal history and the results of her testing. She noted underlying his substance addiction and intoxication were mental health issues and personality disorder, which she said diminished his capacity to exercise controls over his emotions and his behaviour: p 11. She noted he had numerous stresses and conflict.
7. She also noted some significant delusional ideas and fixations, particularly on his daughters and stepdaughter. She noted that a person's judgment can be affected by alcohol and stimulant use; alcohol can impair a person's capacity to control their impulses. She noted that this in a sense his fault as he did not disclose to his psychiatrist the level of his alcohol abuse. He had been cautioned about mixing medications with alcohol.
8. Ms Duffy notes a progression of increasingly distorted and unrealistic cognitions. She says Alfred fulfills the diagnostic criteria for a number of conditions, and that while his Static Risk assuagement for reoffending was low, there are a number of dynamic factors that must be addressed. She concluded: "His dynamic risk factors, mental health issues, difficulty in emotional and behavioural self-regulation, especially when affected by substances and his sexually deviant interests, need to be addressed in a comprehensive rehabilitation program. To his credit Alfred has expressed strong motivation to receive professional help and participate in programs to reduce his risk of offending:" p 11.
9. She then notes that he will be eligible post-sentence for sex offender programs. He would also benefit from the EQUIPS addiction and the RUSH programs. He will need post-release supervision and support while on parole, to facilitate his readjustment to the community in terms; of accommodation, employment and further psychological treatment, if necessary.
10. Dr Furst, a forensic psychiatrist, in his reports no indication of a major mental illness. He found that although Alfred was logical and lucid, what he did and his attempted rationalisations, indicated cognitive distortions. Dr Furst noted there were other emotional and personality deficits revealed by Ms Duffy's testing. In his opinion there is evidence of a recurrent depressive disorder, alcohol use disorder, borderline personality traits and a paedophilic disorder.
11. On risk assessment, Dr Furst finds that Alfred is at little risk of offending in the community generally, but risk will increase if he forms relationships on release and has access to young children. That risk can be moderated but much depends on whether his paedophilic disorder can be controlled. He recommends that Alfred would benefit from psychological input in custody and in the community to address his anxiety, depressive tendencies and dysfunctional personality: p 10. Alfred will need to participate in sex offender programs, such as HISOP. Those programmes would help him in gaining insight and in order to tackle the cognitive distortions that facilitate his offending.
12. Individual psychological treatment should be provided with the aim of improving his coping skills, adjustment issues, mood and anxiety. It would likely involve, as Ms Duffy recommends, cognitive behaviour therapy. He should be assessed by a psychiatrist working for Justice Health and he too recommends EQUIPS programs.

Remorse

1. In his letter to me today the offender expressed his sincere apology for his "disgraceful behaviour for which I am deeply ashamed". He says, "Since becoming a Buddhist I have learnt to meditate and reflect on the trauma I have caused the ones I love the most, my children". He recognises he has failed his children and his heart is broken by realising the permanent emotional scars he has caused his children, his wife, his family friends and the community. He says, "I regret my offending from the core of my being. I would gladly give my life to go back and change what I did". He then makes comments about his own use of methylamphetamine and alcohol.
2. I am prepared to accept that there has been acceptance of responsibility. This is demonstrated by the matters to which I have already referred. I am prepared to accept that he is now finally coming to terms with the harm he caused and the future risk, which he initially minimised.
3. I also accept the Crown caveat to this acknowledgment of harm: "Despite this apparent insight he committed repeated offences with three young victims. He rationalised his offending and involved his victims in his distorted justifications for committing serious offences on vulnerable victims in his care".

Alcohol and amphetamine use

1. Neither Ms Duffy nor Dr Furst say that amphetamine and alcohol use was in any way causal; nor were his underlying conditions.
2. I am prepared to accept that underlying mental health conditions, depression and anxiety, can cause people to drink and that if people mix prescription medication, amphetamines, and alcohol that they can be disinhibited. But alcohol and drug use do not excuse, cannot explain and do not mitigate this offending. Sometimes alcohol can provide a crutch and a false rationalisation for the offending. The best that can be said here is that if Alfred addresses his alcohol and drug problem disorders that will reduce, although it could never eliminate, the prospects of reoffending.

Moral culpability

1. I have to make an objective assessment of the seriousness of the crime and the matters causally related to it. All factors which bear upon the seriousness of the offence should be taken into account. They include factors personal to the offender, anything that might help explain what occurred, they can include at can include motivation, emotional stress.
2. Moral culpability, that is personal blameworthiness, has to be assessed and it can involve consideration of subjective factors, background, mental state, capacity intellectually, capacity to reason. The diagnosis of recurrent depressive disorder, alcohol use disorder and borderline personality traits warrant some amelioration of penalty. Nonetheless, having regard to what was done, any amelioration in this regard must be slight.
3. There remains a strong need, in matters such as this, and this matter in particular, to denounce these crimes. The offender remains an appropriate vehicle for general deterrence. There is no evidence of any significantly greater burden associated with him serving a custodial sentence than any other prisoners.
4. Any reduction in culpability, modest though it is, is largely counterbalanced by the need for community protection, given the offender's paedophilic disorder; Engert v R (1995) 84 A Crim R 67; Donald (a pseudonym) v R [2021] NSWCCA 198 at [116]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

Submissions

1. Mr Steward, for the offender, and Ms Keay, Deputy Senior Crown Prosecutor, provided helpful oral and written submissions. I have sought to address them and consider them in coming to my determinations. I was considerably assisted by having them in advance of today's hearing. I hope this judgment does justice to them.
2. The primary differences between them were not as to the seriousness of the offence but to; the weight that had to be given to the disclosure to police, the rationale for the offending put forward by the offender, the impact of alcohol and drugs, which I sought to resolve in this judgment.
3. As Ms Keay in her submissions pointed out, each offence involved a pernicious breach of trust. The offender's entrenched sexual attraction to young girls means that he remains at risk of reoffending, particularly if he forms another relationship on release. She pointed out that Dr Furst's reports there are dynamic factors which increase this risk; his paedophilic disorder, his emotional instability and the impulsivity and a tendency to drink when under stress. She says that given the penalties that must be imposed a finding of special circumstances is not warranted.
4. Mr Steward noted that given the constellation of factors and the difficulty anyone would have in understanding how someone could commit offences such as this, it would be impossible to parse out alcohol, intoxicants and underlying mental conditions, and that they must be given some weight. In my synthesis of relevant factors, I have to undertake I have sought to do so.
5. He noted the "extraordinary" level of co-operation here and said that in all the circumstances a finding of special circumstances should be made.

Other cases

1. I have had regard to the other cases to which I have been referred. There was a list provided by the Crown in their submissions: Ryan v R [2019] NSWCCA 200; BS v R [2021] NSWCCA 39; JJ v R [2019] NSWCCA 148; XX v R [2017] NSWCCA 90; TO v R [2017] NSWCCA 12. To which I add Facer v R [2019] NSWCCA 180: Gibbon v R [2019] NSWCCA 150 and BR v R [2015] NSWCCA 255.
2. The consistent application of principle must always be considered. The guidance offered by appellate courts in other decisions is always welcome. Past sentences can provide a yardstick, however, each case and every offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74] and [2015] HCA 39: (2015) 256 CLR 550. "Sentencing is a discretionary judgment and the mix of factors that must be weighed in determining an appropriate sentence will never be precisely the same as in a past case or cases:" Bell and Gageler JJ The Queen v Pham at [47],

Structure of sentence

1. Sentences and the reasons for them should be as transparent as possible. Everyone, whether victim, offender, court or community should know why a specific sentence was imposed. That said, sentences involve intuitive judgments. Different factors require different considerations; every offender and every sentence exercise has its individual features. Pragmatic decisions need to be made and the perspectives of the victims, the community and the offender considered.
2. When sentencing for multiple offences against, here, three victims the nature of the charges may compel concurrency or, on the other hand, particularly where the offences are separated in time or relate to multiple victims, accumulation. Care must be then taken to ensure the accumulation of several lengthy periods of imprisonment to not result in a disproportionate level of punishment. As Basten J pointed out in DPP (Cth) v Beattie [2017] NSWCCA 301 at [26]-[45] what is a proportionate sentence or what might be seen as crushing can depend on the perspective of the observer, whether they are the victim, the community, the appeal court or the offender.
3. Each count involved a discrete act of criminality; however, each count had some features in common and the purposes of sentencing apply to each and they can overlap. There must be some partial accumulation and the aggregation must be a just and appropriate measure of the criminality involved: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 307-308 per McHugh J; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.
4. A straightforward arithmetical addition of the sentences would arrive at an aggregate sentence that well exceeds what is called for in the circumstances. Here, there must be a significant level of accumulation but even though there are three victims some concurrency must also be allowed.

Special circumstances

1. It is important to note that studies reveal that offenders who receive parole supervision on release do better than those who do not, particularly when it comes to reoffending. It is also clear that Alfred must be monitored and any treatment he received in prison continued in the community. He will need help adjusting to normal community life and he will need assistance dealing with his alcohol and drug use, all are ordinarily a basis for a finding of special circumstances. But, and it is an important 'but', I have to fix a minimum period for which he should be imprisoned that properly reflects the gravity of his crimes and the other purposes of sentence. I cannot extend his sentence because of a need for monitoring and supervision.
2. Accordingly, here I will not be making a finding of special circumstances here.

Synthesis

1. In any sentencing exercise a judge must identify all relevant factors, discuss their significance, and make a value judgment. The aggregate and indicated sentences should reflect the seriousness of the offence and be proportionate to the crime or crimes and the offender. I start with these basic propositions; 1. children are entitled to be safe and feel protected when they are with their father or stepfather. 2. Severe sentences should be imposed in cases such as this because of the particular vulnerability of young children and the well-known long-term effects of child sexual abuse. 3. This is particularly important when the offender is in a position of trust: R v BJW (2000) 112 A Crim R 1 at [20].
2. In situations such as this each child was virtually helpless. A child has the right to be protected by their father, not from their father. When that right is taken away and twisted, where a child loses the protection that the law expects be given, where a child has lost that protection, the law can do little but attempt to vindicate their experience and punish the offender by exacting retribution on him. Severe sentences are required in the hope that others will learn not to do what should be unthinkable.
3. Courts can only protect others from sexual molestation within the family by imposing retributive sentences of a salutary nature and by removing the offender from the community for a lengthy period. But in most cases, including this one, the removal of the offender from the community can only be temporary. The offender must be returned to the community at some stage; he should not return to the community more likely to offend than when he went in.
4. Another way of protecting children is to encourage those who do offend against them to stop and come forward and admit their crimes. For that reason, particularly where there is a risk offending will remain undiscovered or may not be revealed by the victims for years, in some cases decades or not at all, significant reductions are required to encourage such revelations. That said, any lesser penalty that it imposed must not be unreasonably disproportionate to the nature and circumstances of the offending.
5. Alfred's underlying conditions can be assisted by treatment, but regardless his paedophilic disorder will remain a concern and that concern must be moderated.
6. Severe punishment is required. Retribution is required. There is a community expectation that offenders will suffer serious punishment for matters such as this and a proper sentence marks the Court's view of the seriousness of the crime and must let other wrongdoers know the retribution that will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203, at 205. There must also be some vindication for the victims here who may one day learn of these proceedings. They were gravely wronged by someone who was obliged to protect them.
7. I note, however, that his confessions, and the detailed confessions, are matters that go significantly to questions regarding general deterrence and can here reduce the need for specific deterrence: McKinnley [40-[45]; Lewins v R [2007] NSWCCA 189 at [18]. There must be some reduction, first because of the guilty pleas and, secondly, because it was Alfred's confessions, first to his partner and then the police, that enabled this prosecution to proceed with minimal input from Ivy Brown, Rose Green and none from Violet Alfred.
8. Unlike most cases where a memory returned, often under psychological therapy, each child can be assisted from this point. The volume can be turned down and the focus put on their individual recovery. They will never have to face the prospect of making police statements or giving evidence. They will never be faced with the possibility, all too common, that they were disbelieved or attacked in court for coming forward. But for Alfred's confessions to Sarah Green and then the police it is highly unlikely, extremely unlikely, that the details of what occurred would ever have been revealed. A significant reduction is therefore required, as I have already indicated.
9. I take into account the fact the offender entered early pleas of guilty. I have reduced each indicated sentence from what would otherwise be imposed by 25% in accordance with s 25D Crimes (Sentencing Procedure) Act. There is a further reduction of 25% for the s 23 Crimes (Sentencing Procedure) Act factors. Accordingly, each indicated sentence has been reduced by 50%. I have also taken care that any reduction not be eroded by the process of accumulation.

Ivy Brown

• Count 1: As it carries a standard non-parole period, I indicate a sentence of two years and six months, non‑parole period of one year ten months.

Rose Green

• Sequence 2: As it carries a standard non-parole period I indicate a sentence of four years six months and a non-parole period of three years four months.
• Sequence 9, taking into account the matters on the Form 1, as it carries a standard non-parole period, I indicate a sentence of six years and a non-parole period of four years six months.
• Sequence 16: I indicate a sentence of one year and six months.
• Sequence 17: As it carries a standard non-parole period, indicated sentence of four years and six months, non-parole period of three years four months.
• Sequence 18: As it carries a standard non‑parole period I indicate a sentence of four years six months, non-parole period of three years four months.

Violet Alfred

• Sequence 5: As it carries a standard non‑parole period, I indicate a sentence of five years with three years nine months.
• Sequence 11: taking into account the matter on the Form 1, as it carries a standard period non‑parole I indicate a sentence of six years, non-parole period four years six months.
• Sequence 7: As it carries a standard non parole period, I indicate a sentence of four years six months, non-parole period three years four months.

Aggregate sentence

1. There will be an aggregate sentence.
2. Having considered principles relating to; assistance, early guilty pleas, accumulation, concurrency and totality the aggregate sentence is one of 11 years.
3. There will be a non-parole period of eight years three months. It will commence on 11 September 2020 and expire on 10 December 2028. The balance of the sentence of two years and nine months is to commence upon the expiration of the non-parole period, 11 December 2028. The sentence will expire 10 September 2031.
4. You will be eligible for consideration for release to parole at the expiration of the non‑parole period, that is 10 December 2028. Total effective sentence therefore is one of 11 years, a non-parole period of eight years and three months. The plea of guilty and the assistance has led to a 50% reduction in the otherwise appropriate sentence so, for transparency, my starting point was 22 years imprisonment.
5. I have to warn you that you will be subject to the High Risk Offenders Act and that means that if you do not co-operate with authorities the government may take action to extend your time in custody or place additional conditions on you after the expiry of your sentence.
6. Dr Furst's and Ms Duffy's reports to go with the warrant.
7. Sequence 1 is withdrawn and dismissed.
8. I thank everyone for their assistance.

Amendments 21 October 2022 - Removal of detail. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2022