R v AM

Cases Cited: Alseedi v R [2009] NSWCCA 185
Bugmy v R [2013] HCA 37
DC v R [2023] NSWCCA 82
Dungay v R [2020] NSWCCA 209
EG v R [2015] NSWCCA 21
Hall v R [2021] NSWCCA 220
Hesketh v R [2021] NSWCCA 262
R v Brown [2023] NSWDC 477
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381
R v McNaughton (2006) 66 NSWLR 566
R v Olbrich (1999) 199 CLR 270
R v Storey [1998] 1 VR 359 at 369
R v Wright (1997) A Crim R 48
Van der Baan v R [2012] NSWCCA 5

Category: Sentence

Parties: Crown: Rex
Offender: AM

Representation: Counsel:
K MacKenzie (Crown
R Baldeo (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Morrisons (Offender)

File Number(s): 2023/00245226

JUDGMENT

1. The offender is to be sentenced with respect to three offences following a trial in which the offender was found guilty.

2. The offences for which the offender is to be sentenced are as follows:

3. Count one – sexual intercourse with a child under the age of 10 years contrary to s 66A(1) of the Crimes Act 1900 (NSW);

4. Count two – sexual intercourse with a child between the age of 10 and 14 under authority contrary to s 66C(2) of the Crimes Act 1900 (NSW);

5. Count three – sexual intercourse with a child between the age of 10 and 14 under authority contrary to s 66C(2) of the Crimes Act 1900 (NSW).

6. The maximum penalty for count one is life imprisonment with a standard non-parole period of 15 years. The maximum penalty for counts two and three is 20 years imprisonment with a standard non-parole period of nine years.

7. The maximum penalties for the offences act as a sentencing guidepost or reference point. Section 54A(1) of the Crimes (Sentencing Procedure) Act 1999 (CSPA), provides that the standard non parole period is that which is included in the table of provisions. Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence that falls within the middle range of objective seriousness taking into account only the objective factors affecting the relative seriousness of the offence. Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account. The fixing of a non-parole period is only one aspect of the task when determining what is an appropriate sentence.

8. Admitted on behalf of the Crown were the following:

9. Exhibit C1 – Facts on sentence;

10. Exhibit C2 – Criminal History – New South Wales;

11. Exhibit C3 – Criminal History – Victoria;

12. Exhibit C4 – Custodial History;

13. Exhibit C5 – Victim Impact Statement.

14. Admitted on behalf of the offender were the following:

15. Exhibit O1 – Report of Kris North (Forensic Psychologist) dated 11 April 2025;

16. Exhibit O2 – Email from Kris North dated 27 May 2025;

17. Exhibit O3 – Letter from VM dated 7 May 2025;

18. Exhibit O4 – Letter from DM dated 7 May 2025;

19. Exhibit O5 – Letter from PM dated 6 May 2025.

Findings of fact

7. In making relevant findings of fact for the purposes of sentencing I must not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, to the extent that facts in favour of the accused are to be taken into account on sentencing it is sufficient if those circumstances are proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27]; R v Storey [1998] 1 VR 359 at 369.

8. The Crown prepared a proposed summary of facts from the evidence at trial. The offender, in written submissions, provided an alternative summary of the facts. My findings of fact for the purposes of passing sentence are as follows, consistent with the guilty verdicts.

9. The victim (CLP) was born on 17 December 2007. The offender was born on 23 December 1976. The victim's mother (TL) had four children from previous relationships, including CLP.

10. The offender met TL in the second half of 2015, and shortly after the commencement of the relationship (September 2015) TL became pregnant. At the time TL and her four children were living in a house in Warilla.

11. Count one (sexual intercourse with a child under 10 years (DV)) occurred whilst the family were living at their Warilla house. The date range for count one is between 17 November 2015 to 1 May 2016. CLP turned eight on 17 December 2015.

12. CLP had no recollection of the detail relating to count one beyond the fact that the offender inserted his penis in CLP's vagina. She had no recollection of where in the house it occurred or what she was doing at the time.

13. In May 2016, whilst TL was pregnant, the family moved from their Warilla house. Whilst CLP and her siblings lived with relatives, the offender and TL lived in a caravan park.

14. In July 2016, TL and the offender’s first child DL was born. Their second child KL was born in August 2017. In 2019, KL was diagnosed with leukaemia at which time TL, the offender, CLP and her siblings went to Sydney and lived at Ronald McDonald House. Several months thereafter TL and the offender separated, resulting in CLP and her siblings residing separately with relatives. During the period KL was receiving treatment in Sydney, the home in which they were living at the time was burnt down and a further rental was secured in Erowal Bay.

15. Sometime after Christmas 2019, TL, the offender, CLP and her siblings, together with the couple's two children, moved into the Erowal Bay house.

16. Count two (sexual intercourse with a child between 10 and 14) occurred whilst living at the Erowal Bay house, the date range for this count being between 2 October 2019 and 30 November 2020. CLP turned 12 in December 2019.

17. CLP was asleep in her bedroom, which was occupied by her alone. The offender patted her on the shoulder to wake her up before removing the blanket coverings. The offender moved CLP so that her head was against the wall. He pulled down CLP's pyjama pants and thereafter inserted his penis into her vagina, moving it back and forth. When finished, the offender walked out of the room and returned to a shipping container located in the backyard where he often spent time alone. CLP then pulled up her pants and went back to bed.

18. Count three (sexual intercourse with a child between 10 and 14) also occurred whilst the family were living at the Erowal Bay residence. The date range for this count is the same as for count two.

19. On the morning the offence occurred the offender asked CLP if she would like to go four-wheel driving in the bush. Shortly thereafter the offender, with CLP in the front passenger seat, drove a four-wheel-drive belonging to TL to a bush area, adjacent to tennis courts, at the end of the street where the family were residing. After driving a distance along a bush track the vehicle became bogged. The offender got out of the vehicle and walked around to the passenger side where the vehicle was bogged. CLP opened the front passenger door and stood on a sidestep of the vehicle facing outwards. The offender pulled CLP's pants down and pushed her backwards so that she was lying on the seat with her body from the waist down hanging off the seat. The offender then inserted his penis into CLP's vagina, moving his penis back and forth. After finishing, the offender pulled his pants up and walked away. CLP pulled her pants up and sat back on the seat and closed the door. The offender then unbogged the vehicle before driving home via the local shops.

Victim Impact Statement

20. The victim impact statement of CLP was read out by her support person. CLP stated what the offender had done had changed her perspective on life. She will at times wake up thinking the offender is in her room and experiences flashbacks. CLP stated that the offender had deprived her of a childhood she deserved. CLP experiences feelings of guilt when her siblings ask her where the offender is, although ultimately, she realises that it is not her fault that he is no longer around. CLP described on some days she felt like she had “been buried in a hole” and trapped suffering dark emotions and thoughts.

Criminal History

21. The offender’s criminal history in New South Wales commences in 2003 where it records an offence of dispose of property – theft serious indictable offence. There is a further offence of prostitute solicit client within view of prescribed premises. Several years later the offender was convicted of minor property offences and common assault. Shortly thereafter the offender was convicted of driving whilst disqualified and possess prohibited drug.

22. There is a hiatus in the offender's record for a period of approximately 10 years before there are further serious driving offences as well as custody of a knife in a public place. The offender was convicted of further serious driving offences including driving during disqualification period in 2015 and 2016. In 2017 he was convicted of contravene prohibition restriction of AVO. The following year there were further offences of possess prohibited drug and possess equipment for administering drugs. There are further serious driving offences in 2020 of driving during disqualification period and with illicit drug present. There is a further offence of driving illicit drug present in 2023 and dishonestly obtain property by deception.

23. The records in Victoria reveal a single offence of unlicensed driving in 2023.

Subjective Evidence

Report of Kris North – forensic psychologist

24. The offender was assessed by Kris North in March 2025 by an audiovisual link whilst in custody. The psychologist had available the indictment, Crown case statement, criminal history as well as previous psychologist notes and the transcript of trial.

25. The offender was born to Argentinian parents who migrated to Australia prior to his birth. Both parents were now deceased, having died within weeks of each other in 2021. The offender described his father as being strict and tough during childhood and indeed was subjected to harsh physical discipline during his youth. He reported that he was “flogged” by his father during his adolescence when he disclosed sexual abuse by a family friend. He maintains contact with several siblings who had been supportive throughout the trial.

26. The offender left school whilst in year 11, having commenced using drugs and had run away from home. He completed an apprenticeship and maintained stable employment in his twenties. He moved to the United States when family offered him an opportunity to maintain his abstinence from drugs. He claimed to have been clean for the five years in the United States before returning to Australia. He continued to work in various labouring and unskilled occupations including a period managing his own business. This was despite ongoing drug use issues.

27. The offender reported having been sexually abused by a priest at school in year 5, the abuse occurring on multiple occasions. He was subjected to further sexual abuse from the age of 11 or 12 by a friend of his father with the abuse occurring for up to five years. The abuse was significant and at times involved objects being inserted. As previously noted, his father reacted violently when he reported this abuse to him. Unsurprisingly, the experiences of sexual abuse led to the offender using illicit substances from a young age and running away from home in his mid-teenage years.

28. The offender reported first using cannabis at the age of 11 and, by the age of 15 or 16, the offender was using ecstasy, cocaine and heroin. The last of these drugs was of particular concern in his twenties when he relapsed on multiple occasions. The offender engaged in various residential treatment programs which ultimately led to total abstinence between the age of 25 and 30 whilst living in the United States. However, he was deported at the age of 34 for overstaying his visa by two days and subsequently relapsed into heroin and methamphetamine use upon his return. With the assistance of a buprenorphine treatment program, he abstained from heroin for a period of approximately 15 years. However, he continued to use methamphetamine on and off until the time of entering custody in 2023.

29. The offender reported struggling with intrusive memories relating to the sexual abuse since late childhood as well as issues of trust, sexual identity and maintenance of healthy relationships. The psychologist noted that the offender was diagnosed with complex post traumatic stress disorder in 2017 by his treating psychologist with whom he engaged on and off for treatment until 2024. The psychologist’s notes recorded the offender at times presenting with nightmares and flashbacks relating to the history of sexual abuse in addition to avoidance behaviours and drug use. The offender had also been diagnosed with major depressive disorder and had been assisted with various treatments.

30. The offender told Kris North that he struggled with mood instability since childhood.

31. In his early thirties, the offender was admitted to the Sub-Acute Mental Health Unit at Nowra Hospital arising from episodes of drug induced psychosis. He also attempted suicide on several previous occasions through drug overdoses.

32. The offender referred to having been involved in various intimate relationships, the most recent being with TL. He referred to the stress relating to the diagnosis of leukaemia of one of his children which had impacted on his relationship with TL. The psychologist concluded that the offender’s substance abuse history was directly related to his trauma history and reflected a maladaptive means of avoiding unwanted memories and feelings relating to the past sexual abuse. The offender demonstrated clinically significant elevations in relation to anxious arousal, intrusive experiences, defensive avoidance, disassociation, somatic preoccupations, suicidality, insecure attachment, impaired self-reference and tension reduction behaviours. The psychologist concluded that the testing revealed the offender continuing to struggle with mental health issues relating to his history of complex trauma.

33. The offender was assessed posing a Level III average risk for sexual recidivism based entirely upon a review of the facts as detailed in the Crown Case Statement, which did not take into account the offender’s maintenance of innocence relating to the offences. Various modalities of treatment were recommended. Ultimately the offender was diagnosed with post traumatic stress disorder, major depressive disorder, opioid use disorder and stimulant use disorder.

34. In response to further questions posed by the Crown Kris North observed that the average risk of sexual recidivism, using the Static-99R manual, did not take into consideration the offender’s plea of innocence. Research had however consistently demonstrated that denial of the offences did not translate into an increased risk of reoffending. There may be other explanations for an offender denying the allegations. In determining the risk of reoffending additional information did not indicate any history of deviant sexual interests or behaviours and there was no prior history of sexual offending.

VM

35. VM is the offender’s older sister and they had always shared a “close and enduring bond". She described the offender as "compassionate, gentle and unfailingly kind". He was supportive of her and those around him. The offender resided with her sister and her son whilst on bail during which time it was readily apparent that he was attempting to make positive changes including maintaining his sobriety, contributing financially to the household and participating in daily chores. He clearly demonstrated a control of his life during this period. However, during the relationship with TL, he had spiralled into a “chaotic drug fuelled existence”.

DM

36. DM is the offender’s older brother and attested to their happy and supportive childhood. He spent considerable time with the offender, having shared similar interests, although acknowledged that the offender had considerable difficulties throughout his life with drug use. However, during periods when clean from drugs, the offender was productive and hardworking, having been employed in his property maintenance business. The offender had been a good uncle to his two children. DM also attested to the offender’s stabilisation whilst living with his sister. He was abstinent from drugs and working. DM had noticed a significant decline in the offender’s mental health since returning to custody. He would support the offender upon his release.

PM

37. PM is also the offender's older brother who attested to a close relationship and to “his character, values, and conduct". PM had become aware of the offender’s abuse as a child and noted that during this period the offender was more reserved. The offender had been a loving and doting uncle to his children and other nieces and nephews. He also attested to the offender’s work ethic, despite his battles at times with illicit substances. PM noted that the offender had been completely abstinent from drugs since he returned to custody in 2023 and remained abstinent upon his release. He considered that the offender had in effect turned his life around. He indicated he would be prepared to continue to support the offender whilst in custody and upon his release.

Submissions, findings and sentence determination

38. As the Crown observed in its submissions, while some forms of sexual activity may be regarded as more serious than others, there is no particular hierarchy of sexual acts. Rather, it is necessary to consider the context in which the offending occurred in assessing the objective seriousness.

39. The Crown contends that each of the counts are serious examples of the range of circumstances contemplated by the sections. The Crown notes with respect to each offence the relative youth of the victim, the offending involved penile vaginal intercourse, the offender was either staying or living in the house where the victim resided and that the offending was for the offender’s sexual gratification.

40. With respect to count 1, the offender notes that there was little evidence as to the circumstances of the offence beyond the act of sexual intercourse. Whilst the offender at the time was in a relationship with TL, there was no evidence of any significant relationship between the offender and CLP. The age of CLP was towards the upper end of the prescribed age range. It was acknowledged that the offence was committed in the home of the victim, being a discrete aggravating factor. It was submitted that count 1 fell below the mid-range of objective seriousness.

41. The victim was aged 8 at the time of the offence and self-evidently there was a significant age disparity with the offender who at the time was aged somewhere between 39 and 40. As the submissions for the offender noted, the victim was towards the upper end of the age range contemplated by the offence. I accept the offender’s submission that at the time of the offending, whilst the offender was staying in the home of TL, there was no relationship of substance with CLP. The offence did occur in the home of the victim where she was entitled to feel safe. There is little evidence as to the circumstances beyond the act of sexual intercourse for the purpose of assessing objective seriousness. I am satisfied that the offence falls towards the mid-range of objective seriousness.

42. With respect to count 2, the victim was aged 11 or 12, between the mid and lower range of ages contemplated by the section. Again, there was a significant age disparity between the victim and the offender. The offending involved sexual intercourse with CLP whilst in her bed in the bedroom where she resided. The offence did occur in the home of the victim where she was entitled to feel safe. I accept that the offending was relatively short and there was no evidence of planning. I similarly find this falls towards the mid-range of objective seriousness.

43. With respect to count 3, again it is submitted by the offender that the offending was largely unplanned and opportunistic, and that the victim would have been at the age of 12, at the approximate midpoint of the prescribed age range. It is again submitted that this offence is below the mid-range of objective seriousness.

44. As with the other offences, there is a significant age disparity between the victim and the offender. The victim was aged 12 at the time being towards the middle of the age range for the offence. I accept, given the circumstances leading to the offending, that it was largely unplanned and opportunistic and involved the act of penile vaginal intercourse. I similarly find that this offence falls towards the mid-range of objective seriousness.

45. The Crown contends that the offender’s criminal history is a discrete aggravating factor (s 21A(d) of the CSPA). Whilst the offender concedes that his prior criminal history disentitles him to leniency which might otherwise be afforded, it is noted that the offences for which he is to be sentenced are in stark contrast to his previous offending primarily involving driving offences, drug possession and property related matters. It was submitted on behalf of the offender that his prior criminal record could not be given such weight as to lead to a disproportionate sentence, and ultimately his criminal history would not lead to an overall increase in the sentence.

46. As conceded by the offender, his criminal history disentitles him to leniency, although I am not satisfied that it is a discrete aggravating factor as submitted by the Crown. Ultimately, the principle of proportionality requires that the sentence should not exceed what is proportionate to the gravity of the crime having regard to the objective circumstances: R v McNaughton (2006) 66 NSWLR 566; Van der Baan v R [2012] NSWCCA 5. I have borne in mind these principles when considering the offender’s prior criminal record in determining an appropriate sentence. I accept the offender’s submission that there is some significance in the fact that the offender’s prior criminal history is primarily drug-related and property offences as well as driving offences. His previous offending must be considered in the context of the offender’s subjective circumstances (exposure to significant childhood trauma leading to drug use and mental disorders) as disclosed in the psychologist report and further reinforced by the letters of support from the offender’s siblings.

47. The Crown quite properly concedes that a mitigating factor is that the offences were not planned, or part of an organised criminal activity (s 21A(3) of the CSPA).

48. I have considered the respective submissions of the Crown and the offender as to the various mitigating factors including the offender’s subjective evidence.

49. I accept the history provided by the offender to Kris North that he was raised in a strict household and was, at times, subjected to harsh discipline from his father, although the offender’s siblings generally attest to a loving and supportive home environment during his early childhood years.

50. I accept however that the offender was subjected to sexual abuse, initially by a priest, and later by a friend of the family, during his most formative years. I accept that the latter abuse continued during the offender’s early teenage years, being a time when the offender would, most likely, be significantly impacted by such adverse experiences. I accept that it is unsurprising in these circumstances that the offender resorted to the use of illicit substances to deal with the abuse to which he was subjected. I further accept that this led to a further decline in his mental health and an increased reliance upon other drugs of dependence.

51. I accept the offender suffers from post traumatic stress disorder and major depressive disorder, and that the offender has suffered from these conditions since his youth. The opinions of Kris North in this respect are further supported by the fact that the offender has been seeking treatment for these conditions from a psychologist between 2017 and 2024. I am satisfied that these conditions directly arise from the sexual abuse to which the offender was subjected during his childhood.

52. The offender contends that his life “has been shaped by childhood trauma". In submissions reference was made to the importance of focusing upon the effect of such a background on the offender and its “ability to compromise the person's capacity to mature and learn from experience", citing Bugmy v R [2013] HCA 37 at [43]. Reference was made to the observations of N Adams J in Dungay v R [2020] NSWCCA 209 that it is unnecessary to establish a causative link before the application of Bugmy requiring a sentencing judge to give full effect to the history of childhood deprivation.

53. Whilst the offender fairly conceded that his childhood trauma may not lead to reduction in moral culpability, it should be given full weight as part of the process of instinctive synthesis in determining an appropriate sentence. I accept that the offender’s exposure to sexual abuse as a child has profoundly impacted his development and his decisions in life, including resorting to illicit substances. I further accept that this abuse has also led to the offender suffering various disorders to which reference has already been made. I have taken these matters into account in determining an appropriate sentence.

54. The offender contended that the mental health conditions from which he suffered justified separate and discrete moderation of the role of general deterrence. That submission was not pressed in further written submissions following the sentencing hearing. However it was submitted that the matters referred to at 5 3 above meant that full weight should be given by a moderation to the role of general deterrence that would otherwise apply. Further custody was likely to weigh more heavily on him and there is a risk he would experience an escalation in symptoms relating to depression and anxiety including an increase in suicidal ideation.

55. The Crown contends that no connection has been made between his substance use issues or post traumatic stress disorder in relation to the sexual abuse offences for which he is to be sentenced. His mental health diagnosis was not connected to his sexual offending such that it should be considered a factor of mitigation. Further, the Crown referred to the observations of Hunt CJ at CL in R v Wright (1997) A Crim R 48 at [51] that “if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation [of deterrence] need not be great”.

56. In DC v R [2023] NSWCCA 82, Yehia J (with whom Rothman and Wilson JJ agreed) observed at [74] that “[a] reduction in moral culpability results where an offender’s mental health (or impaired intellectual functioning) has contributed to the commission of the offence.” Her Honour noted that it was unnecessary to demonstrate causation such as that determined in a civil case. However, her Honour further observed that moral culpability or the weight to be afforded to general deterrence may be reduced “[w]here the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way” (at [75]). Her Honour further observed at [76] that “the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question”.

57. There is no evidence that the offender’s underlying mental health disorders are linked, whether directly or indirectly, with the offender’s offending. In the circumstances, I am not satisfied that the offender’s moral culpability ought to be reduced by reason of his underlying mental health conditions such that it moderates to any significant degree the weight to be given to general and/or specific deterrence. The offender’s subjective circumstances do require some modest moderation to general deterrence.

58. However general deterrence and denunciation still have a role to play in respect to sexual abuse perpetrated on children. As Hoeben CJ at CL observed in EG v R [2015] NSWCCA 21 at [42] (with whom Harrison J and RA Hulme J agreed):

“General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment.".

59. I do accept that full-time custody will weigh more heavily on the offender given his underlying mental health conditions. I further accept that there is a real prospect the offender’s incarceration will lead to an escalation in his underlying symptoms arising from his mental health disorders. Indeed, this is consistent with the observations of the offender’s brother that the offender’s mental health has declined since his return to custody. Consistent with these observations, it is apparent that there has already been a deterioration in the offender’s mental health since his return to custody.

60. The offender contends that he is unlikely to reoffend and has good prospects of rehabilitation. The Crown submits that the offender’s prospects of rehabilitation are low given he has maintained his innocence and his refusal to admit guilt which demonstrates a lack of insight into his behaviour and is an obstacle to rehabilitation. Further, the offender has had numerous opportunities to address his underlying substance abuse issues and access to counselling given his criminal history.

61. The forensic psychologist retained by the offender assessed the offender as posing a Level III average risk for sexual recidivism whilst noting that this was based upon a review of the facts as detailed in the Crown case statement. Those facts are generally consistent with the guilty verdict and fact findings for sentence.

62. It is difficult to make a definitive finding on the offender’s risk of reoffending on the material available. The offender has not previously been convicted of any like offences. He has maintained his innocence. I note the opinion of the psychologist that, using the Static-99R manual, the offender had an average risk of reoffending. However, I accept the submission made on behalf of the offender, relying on the supplementary opinion of Kris North, that the absence of prior convictions for similar offences, and the absence of any deviant sexual interests, leads to a finding that the offender is unlikely to reoffend. I further accept that a lengthy period of imprisonment will act as a significant deterrence from any further such offending.

63. The evidence as to the offender’s prospects of rehabilitation pulls in different directions. I accept the statements of the offender’s siblings that it is apparent in recent years, particularly since his separation from TL, that he has remained generally abstinent from illicit substances, has been working full-time and was leading a relatively stable life. However, there have been previous relapses after periods of abstinence.

64. A significant step towards rehabilitation is an acceptance of guilt and a willingness to address the underlying issues leading to the offending. As the Crown in my view correctly observes the offender’s lack of insight into his behaviour is an obstacle to his rehabilitation. However, as Giles JA said in Alseedi v R [2009] NSWCCA 185, there can be rehabilitation without confession and offenders found guilty after a trial are not all but automatically deprived of a finding of good prospects of rehabilitation unless they then acknowledge their guilt. Positive steps which the offender has taken to address his underlying mental health and drug abuse issues provides some modest optimism with respect to his rehabilitation.

65. The courts have consistently recognised the harm inflicted on children that are victims of sexual abuse. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 the Court observed at [110]:

“… 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].”

66. The significant impact on children and the trauma of sexual abuse on them is now statutorily enshrined in s 25AA of the CSPA. CLP’s victim impact statement further reinforces the harm suffered by the victim arising from the offender’s abuse.

67. Considering the other purposes of sentencing provided in s 3A of CSPA, the sentence which the Court intends to impose will ensure that the offender is adequately punished for the offences and will make the offender accountable for his actions.

68. I am satisfied a finding of special circumstances is justified which will meet the further purposes of sentencing in promoting the rehabilitation of the offender. It is readily apparent from the offender's siblings’ letters of support that the offender, prior to his return to custody, was taking positive steps towards his own rehabilitation and to address his underlying mental health and drug related issues. The offender should be given every opportunity in the community to continue this journey with the support of his siblings. I am also satisfied that a more extended period on parole in the community will assist to address his underlying mental health issues by obtaining appropriate treatment of the type which he was receiving prior to his return to custody.

69. I am satisfied that the s 5 threshold has been crossed and that no sentence other than imprisonment is appropriate. I am satisfied that this is an appropriate matter for the Court to invoke s 53A of the CSPA and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been made.

70. With respect to count 1, sexual intercourse with a child under the age of 10 years, an appropriate indicative sentence is 8 years imprisonment with an indicative non-parole period of 5 years.

71. With respect to count 2, aggravated sexual intercourse with child above 10 years and under 14 years under authority, an appropriate indicative sentence is 5 years imprisonment with an indicative non-parole period of 3 years 6 months.

72. With respect to count 3, aggravated sexual intercourse with a child above 10 years and under 14 years under authority, an appropriate indicative sentence is 5 years imprisonment with an indicative non-parole period of 3 years 6 months.

73. In determining the aggregate sentence, it is necessary to ensure that the overall sentence is just and appropriate in that it reflects the totality of the offending behaviour: Hall v R [2021] NSWCCA 220 at [53] - [63] (per RA Hulme J with whom Leeming JA and Campbell J agreed). The Court must be mindful of the "crushing" effect of a long total sentence which has the potential of inducing a feeling of hopelessness and destroying any expectation of a useful life after release: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15] - [17] per Spigelman CJ, Whealy J and Howie JJ; R v Brown [2023] NSWDC 477 at [90].

74. It is also necessary, when determining the aggregate sentence, particularly where the offences involved similar criminal conduct, that there is not double punishment. As Bell P (as he then was) observed in Hesketh v R [2021] NSWCCA 262 at [54] where there is underlying factual commonality across the offences for which the offender is to be sentenced it is important not to impose punishment that is disproportionate to the overall criminality involved in the offences: R v Brown [2023] NSWDC 477 at [91].

75. There will need to be some accumulation reflected in the aggregate sentence given the offences occurred over several years when the victim was aged between 8 and 12 years. However, I note that each of the offences were committed against the same victim.

76. In all the circumstances, an appropriate aggregate sentence is 10 years imprisonment with a non-parole period of 6 years 5 months.

77. The offender was in custody from the date of his arrest on 2 August 2023 until released on bail on 4 July 2024, being a total of 338 days. The offender was again remanded in custody following the guilty verdict on 28 February 2025 and has remained in custody until the date of sentencing (5 June 2025), being a total of 98 days. Accordingly, the offender has spent a total of 436 days in custody and the sentence is to be backdated reflecting this period.

Orders

78. I make the following orders:

79. The offender is convicted of the offences.

80. The indicative sentences are set out above. I impose a total aggregate sentence of 10 years imprisonment commencing 25 March 2024, to expire on 24 March 2034.

81. I impose a non-parole period of 6 years 5 months, to expire on 24 August 2030. The earliest possible date for release is 24 August 2030.

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