SEE ATTACHMENT IN RESPECT OF 25% DISCOUNT FOR EACH SENTENCE AS ENTERED ON JUSTICELINK ON THE DATE OF SENTENCE
HIS HONOUR: The offender, Mark Borri, stands for sentence in respect of a number of offences. I intend first of all to give a short summary. There are a total of 26 counts to which he has pleaded guilty, 15 involving acts of indecency and 11 involving acts of sexual intercourse. The period over which they occurred was from 17 April 2002 to 21 October 2012, although the context evidence contained in the agreed facts indicates an earlier starting point for his sexual misconduct.
There were four complainants, being: JG, in respect of whom there were three counts occurring between 17 April 2002 and 18 April 2004; GS, eight counts between 15 October 2002 and 16 October 2008; one count in relation to TS between 12 July 2006 and 13 July 2008; and 14 counts in respect of SS between 20 October 2008 and 21 October 2012. Accordingly, the period relevant to the charges is from 17 April 2002 to 21 October 2012, being a total of some ten and a half years.
JG, GS and SS were female children while TS was a male child.
The offender at the commencement of the period that I have referred to was 40 years of age and 51 years of age at the end of that period. He is now almost 60 years of age, having been born on 3 March 1961.
The eight counts in respect of GS were Counts 1 to 8 on the indictment, at which time she was aged ten to 15. There were five acts of indecency contrary to s 61M(1) of the Crimes Act 1900 and three aggravated sexual intercourse offences, aggravated on the basis that the victim was between the ages of ten and 14. Two of those offences were contrary to s 66C(2); one was contrary to s 66C(4).
In respect of JG, the three offences, being Counts 9, 10 and 11, occurred when she was aged 14 to 15. There was one count of incite to an act of indecency, she being under 16, contrary to s 61M(1), one count of an act of indecency contrary to s 61M(1), and one act of indecency towards her contrary to s 61N(1).
In respect of SS there were 14 counts, being Counts 12 to 25. She was during the period aged 12 to 15. There are six acts of indecency under authority contrary to s 61O(1); two offences of aggravated sexual intercourse, the victim being aged between ten and 14 contrary to s 66C(2); and six counts of aggravated sexual intercourse, the victim being aged 14 to 16 and under authority contrary to s 66C(4).
In respect of TS there is only the single offence, Count 26. TS was aged 12 or 13 at the time. The count is an act of indecency under authority contrary to s 61O(1).
All of the charges are contrary to the Crimes Act 1900.
I will, when dealing with the facts, indicate the maximum applicable sentence, and where appropriate, any standard non-parole period that is relevant.
The facts are agreed and are as follows.
[2]
FACTS IN RELATION TO GS
The victim GS was nine years of age when she moved from Sydney to the Port Macquarie area with her mother, PS.
The victim's grandmother, MS, resided in premises in Flinders Drive at Laurieton, her maternal aunt, SB, and SB's husband, Mark Borri (the offender), resided in the same street. The victim used to spend a lot of time at both premises as a child, nearly every weekend with her mother, but also on her own.
Sexual contact with the victim commenced at the grandmother's house when the victim was nine years of age and continued past her 16th birthday. The offender told her that what was happening between them was normal but that other people would not understand what they "feel and desire".
The first incident the victim recalls occurred when she was nine years of age at her grandmother's house. The offender took pictures of the victim and asked her to "act sexy". He later placed her hand on his crotch.
Later that night, the victim told her grandmother and aunt that the offender had made her put her hand on his lap. Nothing was done by the adults about her complaint.
The following day, the offender told her "You can't tell them that, they don't understand. Keep it between us". The victim never told anyone else.
[The above relates to context evidence.]
The first matter relevant to the sentence proceedings is:
Count 1 (Sequence 2) - indecent assault on a child under 16 contrary to s 61M(1) - Occurring between 15 October 2002 and 16 October 2003.
The complainant was ten years of age at the time. The maximum penalty provided by the legislation is seven years' imprisonment and there is a relevant standard non-parole period of five years, although that only applies from 1 February 2003.
I note now, in relation to that charge, that it is possible that it occurred before 1 February 2003, from the date range that was specified in the count. Accordingly, it may have happened at a time when the standard non-parole period did not apply, and as that is the case I will disregard for the purposes of sentencing the standard non-parole period as a guideline or guidepost, while of course being cognisant of the maximum penalty provided.
The offender and his wife had a bird called "Harley", which was kept in a large cage at the back of their house. The cage had double doors with a space between them so that the first door could be shut before opening the second door to ensure that the bird could not escape.
On one occasion when the victim was ten years of age, not long after she had had an ear operation, she went into the birdcage, followed by the offender. They were in the area between the two doors. The offender grabbed her from behind, touching her inner thigh, while pulling her towards him and grinding his erect penis against her buttocks. This continued for some time, as the birdcage area is secluded.
Count 2 (Sequence 3) - indecent assault on a child under 16 - s 61M (1) - Occurring between 15 October 2003 and 16 October 2004.
The complainant was 11 years of age. The maximum sentence provided is seven years' imprisonment and there is a relevant standard non-parole period of five years.
When the victim was 11 years of age, lying on her stomach and watching TV at her grandmother's place, the offender approached the victim and told her he would massage her upper thighs as she was chafing. He touched her genitalia on the outside of her shorts.
Count 3 (Sequence 7) - indecent assault on child under 16 - s61M (1). Maximum penalty, seven years; standard non-parole period, five years.
Count 4 (Sequence 24) - aggravated sexual intercourse with person 10 to 14 years, s 66C (2) - Occurring between15 October 2005 and 31 January 2006.
The complainant was 13 years of age. The maximum penalty provided is 20 years' imprisonment and there is no standard non-parole period.
Shortly after the victim's 13th birthday, she was at her grandmother's house, wearing the shorts she purchased as her birthday gift. She was lying on the floor. The offender approached her and squeezed her crutch and buttocks. He rubbed her genitalia on top of her clothing which made the victim aroused (Sequence 7).
He reached under her shorts and underwear and rubbed her clitoris with his index finger (Sequence 24). He stopped when he heard people coming into the house.
Count 5 (Sequence 9) - indecent assault on child under 16 - s 61M (1) - Occurring between 15 October 2005 and 16 October 2006.
The complainant was 13 years of age. The maximum penalty provided is seven years' imprisonment and there is a relevant standard non-parole period of five years.
On a different occasion in the lounge room of the grandmother's house when the victim was 13 years of age, she was wearing a shirt with a two-way zipper. The offender pulled down the zipper which exposed her breasts. Using both hands, he grabbed and squeezed her breasts before licking her breasts and nipples. He had stubble at the time. The victim pulled the zipper up as he stopped and walked away.
Count 6 (Sequence 25) - aggravated sexual intercourse with person ten to 14 years of age - s 66(2) - Occurring between 15 October 2005 and 16 October 2006.
The complainant was 13 years of age. Maximum penalty: 20 years' imprisonment.
In the computer room at the offender's house while standing behind the victim, the offender placed his hand inside the victim's pants and rubbed her genitalia and clitoris in a rough manner. He also grabbed her breasts over her clothing. The victim faked an orgasm so the offender would stop. He turned her to face him and cuddled her.
Count 7 (Sequence 27) - aggravated sexual intercourse with person 14 to 16 - s 66C(4) - Occurring between 15 October 2006 and 16 October 2007.
The complainant was 14 years of age. Maximum penalty: 12 years' imprisonment.
The victim was having a bath while staying at the offender's place. The offender walked into the bathroom and sat down on the tiled area of the bathtub. He rubbed her genitalia and clitoris for a short time. She was 14.
The offender frequently walked into the bathroom to look at the victim when she was showering.
Around this time, when the victim was 14 years of age, she told the offender that they had to stop the sexual behaviour as she was feeling guilty about what they were doing to her aunt, SB. The offender assured her, "I will leave SB, and we can be together when you turn 18". The victim felt the offender wanted to be in a relationship with her and would leave her aunt for her.
Count 8 (Sequence 17) - indecent assault on child under 16 - s 61M(1) - Occurring between15 October 2007 and 16 October 2008.
The complainant was 15 years of age. Maximum penalty: seven years' imprisonment, relevant standard non-parole period of five years.
The victim, still aged 15, was at her grandmother's house, lying on her back on the lounge. The offender parted her legs and lay on top of her. He was grinding his body against hers and she could feel his erect penis on her genitalia. He was kissing her neck and squeezing her breasts under her clothing at the same time. He stopped once he heard the flyscreen door open.
Around April 2009, when she was 16 years of age, the victim realised that what the offender was doing to her was wrong. The sexual contact ceased in April 2009. The last contact with the offender was when she was 19 years of age.
[3]
CONTEXT - HABITUATION OF SEXUALISED CONDUCT
The offender touched the victim in a sexualised manner on various occasions until April 2009, after she turned 16 years of age. Sexual contact and behaviour included:
1. When the victim was around ten years of age, on a boat with the offender and other relatives, she had to urinate in a bucket. The offender lifted her shirt to watch her genitalia as she urinated. His hand touched the top of her genitalia as he lifted her shirt.
2. The offender grabbed and squeezed her breasts regularly at various locations at her grandmother's or his house when she was 12 and 13 years of age.
3. He would walk up behind her and rub his penis against her bottom.
4. When the victim was 12 years of age, she told the offender that she had seen her mother having sex the previous night. The offender asked her to describe the details and to demonstrate. He "talked dirty" to her and said that her telling him about sex turned him on.
5. On another occasion, he asked her to talk to him about sex. He said to her, "Oh, look how hard you make me go" as he grabbed her hand and put it on his erect penis.
6. When the victim was 13 and having a sleepover at the offender's house, the offender walked out, naked, as she was watching a movie in the lounge room. He stood with his penis near her face, grabbed her hand and made her squeeze the base of his penis. She could feel his pubic hair.
7. The offender grabbed the victim's hand and put it on his penis as they rode a motorbike together when she was 14.
8. At 15 years of age, the victim and the offender were in his van at his garage. The victim straddled the offender and he "dry humped" her for about 10 minutes while he kissed her neck. The victim was upset and cried after the incident.
9. Around April 2009, the victim, having turned 16 years of age, went to a motorbike festival at Kew with her friend, NC. The offender took them in his van and set up a tent for them. The victim was sitting at the back of the van when the offender approached her and pulled her close to him. He rubbed his erect penis against her genitalia over clothing. He asked her "Is your pussy wet?" He said, "I want you to suck my cock". The victim refused, saying there were people around. This was the last sexual conduct between them.
[4]
COMPLAINT
On 7 September 2014, the victim told her mother that the offender had touched her commencing when she was nine or ten, and that it happened at the grandmother's house as well as the offender's. She also said, "It didn't go all the way".
The matter was reported to police and a detective spoke to the victim in October 2014. However the victim did not complete her statement at the time as she was going through a difficult time. She contacted the police and provided a statement in June 2019.
The victim's mother spoke to SB and her mother about it but both accused the victim of lying.
The victim's mother PS confirms they spent most weekends at the grandmother's house as she had a pool. The offender would take the victim to his house to get movies. He would also drop the victim off at school at times.
WS was in a relationship with the victim's mother from 2005 to 2016. He confirms the victim and the rest of the family spent most weekends with the offender and SB. The victim was always the only child at the family gatherings, and would spend a lot of time inside the house watching TV, or keeping herself occupied while the adults were outside. The offender would frequently disappear from the adult gathering and sit with the victim in the house watching TV.
The victim's friend NC who attended the Kew festival with the victim was told by the victim that the offender asked her to touch him.
[5]
ARREST
The offender was arrested on 26 June 2019 in relation to this matter and declined to participate in an interview as was his right.
[6]
FACTS IN RELATION TO JG
JG's father was married to the offender's sister for some five to six years. From when JG was ten until she turned about 15 or 16 years of age, the victim resided with her father and the offender's sister at Batemans Bay initially, and then at Laurieton from 2001 until her parents moved away when she was in Year 10.
The victim met the offender while she still resided in Sydney but contact with him increased when they moved to Laurieton. The victim frequented his house in Flinders Drive, where he lived with his wife SB. The offender was aware of the victim's age and what year she was in at school.
Count 9 (Sequence 23) - incite person under 16 to commit act of indecency -
s 61N(1) - Occurring between 17 April 2002 and 18 April 2003. The complainant was aged 14. Maximum penalty: two years' imprisonment.
The victim was 14 years of age when the offender offered to pay her to watch him masturbate. It happened on four or five occasions, although only one is the subject of a count, at his house and her place at Lakewood, while her parents were outside having a smoke.
The offender came into the lounge room holding his penis through his clothing and asked her to watch him masturbate in exchange for money. She agreed. He got his penis out and masturbated in front of her.
He would ask her to grab his penis and she would comply, placing her hand on it. He would ejaculate onto the floor or his hand. He would give her $50 or $100 and return outside to where the adults were.
Count 10 (Sequence 21) - indecent assault on person under 16 - s 61M(1) - Occurring between 17 April 2002 and 18 April 2003. Maximum penalty: seven years' imprisonment. Standard non-parole period of five years, but only from 1 February 2003.
At the victim's house at Lakewood, the offender approached the victim and grabbed her breasts through her clothing. He pretended it was a joke although the victim was very uncomfortable.
Count 11 (Sequence 22) - commit act of indecency towards person under 16 - s 61N(1) - Occurring between 17 April 2002 and 18 April 2004. The complainant was aged 14 or 15. Maximum penalty: two years' imprisonment.
The offender collected the victim from her house and drove her to his place in his station wagon. Once they arrived, he took her to the computer room on the pretext of asking her to show him how to use the equipment. Once there, he asked her to watch him masturbate in exchange for payment. She agreed.
He pulled his penis out of his pants and masturbated while saying sexual things to her. She does not recall touching him this time. He paid her $50. There was no one else home at this stage.
Similar incidents of the offender paying her to watch him masturbate, as have already been referred to, happened about five times.
[7]
COMPLAINT
The victim reported the matter to police on 16 August 2019.
[8]
FACTS IN RELATION TO SS
Ms TS had three children, MG, TS and SS. SS and TS are two victims in this matter.
When SS was about four or five years of age and residing at Lakeview Road, Lake Cathie, Ms TS started dating the offender. While SS remembers some early visits with her biological father, once Ms TS started dating the offender, they both told SS that he was her real father.
The relationship continued for many years. Not many people were aware of their relationship as the offender was married to and resided with SB. SS was led to believe that his wife, SB, was his sister who he resided with.
The offender worked as a carpet layer, working hours that saw him finish in the early afternoons. He drove a white Mitsubishi van at the time.
He would visit Ms TS's household regularly before work and in the afternoon. However, he almost never stayed the night. He also never visited on weekends. Ms TS and the kids were told to ignore him if they saw him in public to prevent anyone finding out about them.
The offender and the victim's mother, Ms TS, encouraged the children to shower with them, even when the children were teenagers, telling them that this was normal. As a result, the children did not question it. SS showered with them every day.
[9]
CONTEXT AND COMMENCEMENT OF SEXUAL TOUCHING
Sexual touching of SS commenced in the shower when SS was ten years of age. On various occasions, the offender would wash her with a washer and his hand and would touch her genitalia. It progressed to the offender and the victim's mother engaging in sexual foreplay in the shower in front of SS, telling her that such behaviour was normal. It then developed into touching SS and encouraging her to engage with them. Sexual misconduct continued past her 16th birthday.
Count 12 (Sequence 29) - aggravated commit act of indecency towards - s 61O(1) - Occurring between 20 October 2008 and 21 October 2009 at Lakeview Road, Lake Cathie. The complainant was 12 years of age. Maximum penalty: five years' imprisonment.
SS and the offender were in the bedroom. They were both naked, with SS sitting next to the offender, cross-legged. The offender started masturbating in front of her. The victim's mother was elsewhere in the house. SS was 12 years old and had just got home from school.
Count 13 (Sequence 30) - aggravated commit act of indecency towards - (masturbating himself) - s 61O(1). Maximum penalty: five years' imprisonment.
Count 14 (Sequence 35) - aggravated sexual intercourse, the victim ten to 14 years of age - (rubbing her clitoris) - s 66C(2). Maximum penalty: 20 years' imprisonment. Occurring between 20 October 2008 and 21 October 2009 at Lakeview Road, Lake Cathie. The complainant was aged 12 years.
The offender and SS had a shower when she returned from school. They went into the bedroom. The offender asked her to sit cross-legged next to him and started to masturbate himself; with the other hand he rubbed her clitoris. SS pressed her legs together and turned the other way. The offender's hand was still between her legs. He pulled her back towards him, telling her that this was natural and that all people should do it, "it's all an experience". SS kept telling him she did not want to do it, but he told her, "No, you will enjoy it, just try it at least".
She kept resisting, but he opened her legs and rubbed her clitoris again. Once he finished, she got dressed and left.
[The facts disclose two acts of rubbing her clitoris but only one of those is charged as Count 14. From the Crown's sentencing submissions at p 8 the act relied on is the second rubbing referred to at para 47 of the facts.]
Count 15 (Sequence 36) - aggravated incite to commit act of indecency - (telling her to masturbate him) - s 61O(1). Maximum penalty: five years' imprisonment.
Count 16 (Sequence 7) - aggravated sexual intercourse, victim ten to 14 years of age - (rubbing her clitoris) - s 66C(2). Maximum penalty: 20 years' imprisonment. Occurring between 20 October 2009 and 21 October 2010 at Magellan Place, Bonny Hills. The complainant was aged 13.
When SS was in Year 7, they moved to Magellan Place, Bonny Hills. The offender still visited in the same manner and would be there by the time SS returned from school.
On the day they moved into the house, the offender said, "Let's go and test out the showers". The house had two. They got into the main shower and the offender started to rub her clitoris. The offender told her to grab his penis which was erect at the time. She complied and masturbated him.
The victim's mother walked into the shower and took over masturbating the offender while he rubbed SS's clitoris and her mother's genitalia. SS walked out of the shower and they followed soon after.
By the time that SS turned 14 in 2010, the offender had started to stay later into the evening, sometimes having dinner with SS and her family. He would also come to the house in the early hours of the morning before work. He would sometimes stay weekends but still rarely.
COUNT 17 (Sequence 32) - aggravated commit act of indecency towards - (masturbating himself) - s 61O(1). Maximum penalty: five years' imprisonment.
COUNT 18 (Sequence 10) - aggravated sexual intercourse, victim 14 to 16 - (rubbing her clitoris) - S 66C(4). Maximum penalty: 12 years' imprisonment.
Occurring between 10 October 2010 and 21 October 2011 at the premises in Flinders Drive, Laurieton. The complainant was aged 14.
The offender drove SS to his house in Flinders Drive Laurieton. She was seated in the front passenger seat of his van. As they approached the house he told her to "Duck your head down, I have nosy neighbours, I don't want SB to find out". She complied.
He told her to run from the garage and into the house. Once inside the house the offender said, "Let's go and have a shower". After they had a shower they sat on the lounge. The offender started to masturbate himself and then using his other hand rubbed SS's clitoris.
He masturbated until he ejaculated. He used tissues to wipe his semen from SS's leg. They both got dressed and the offender let SS borrow a movie titled "The Horse Whisperer". They got back into his white van and he again told her to duck her head so the neighbours did not see her as he drove her home. She was 14 years of age at the time.
Count 19 (Sequence 11) - aggravated sexual intercourse, victim 14 to 16 - (Rubbing clitoris) - S 66C(4). Maximum penalty: 12 years' imprisonment.
Count 20 (Sequence 12) - aggravated sexual intercourse, victim 14 to 16 - (cunnilingus) - s 66C(4) Maximum penalty: 12 years' imprisonment.
Occurring between 20 October 2010 and 21 October 2011 at Magellan Place, Bonny Hills. Complainant aged 14.
SS was aged 14 years and was home at Magellan Place, Bonny Hills, after school with the offender. They had the customary shower and went into the main bedroom. SS sat on the bed while the offender stood over her. He used his hand to rub her clitoris. He then kneeled down and pulled SS's body towards him. He licked her clitoris for a period of time and said, "That was good, wasn't it? Did you enjoy that?" The victim said, "Omm". She got up and got dressed.
Count 21 (Sequence 15) - aggravated sexual intercourse, the victim 14 to 16 - (Cunnilingus) - S 66C(4). Maximum penalty: 12 years' imprisonment.
Count 22 (Sequence 16) - aggravated sexual intercourse, victim 14 to 16 - (digital/vaginal intercourse) - s 66C(4) - Maximum penalty: 12 years' imprisonment.
Occurring between 20 October 2010 and 21 October 2014 at Magellan Place, Bonny Hills. The complainant was aged 14 years.
SS and the offender were in the main bedroom after school. A tripod was set up at the end of the bed. The offender was naked and removed SS's clothes. She told him she did not want him to record them but he insisted saying he would delete it. She saw him press the record button and the red light came on.
SS was sitting somewhat upright at the end of the bed while the offender was laying on his front with his head between her legs. He licked her clitoris very firmly. He then penetrated her vagina with his finger which made her uncomfortable so she pulled away. He stopped the digital penetration but continued licking her clitoris, his unshaven face causing her pain.
The offender got up and stopped the camera. SS never saw the recording.
Count 23 (Sequence 33) - aggravated commit act of indecency towards - S 61O(1). Maximum penalty: 5 years' imprisonment.
Occurring between 1 December 2010 and 31 January 2011 at Magellan Place, Bonny Hills. The complainant was aged 14 years.
During an investigation into an unrelated matter relating to the victim's mother in 2014 police located and stored a number of recordings which were reviewed after these allegations came to light.
A disk dated 1 January 2011 contained footage of the offender and the victim's mother having sex in the main bedroom in different positions. The footage is six minutes in length. It was recorded by the victim, SS. Once they finished having sex towards the end of the footage the offender asked, "How did you go, (S)?". SS responded, "Yeah okay" and the offender said, "Good girl".
SS recalls the offender asking her to record him and her mother having sexual intercourse because the tripod does not get everything they want and SS could follow them with the camera. Both the offender and her mother encouraged her to do it, saying it would be fun.
Her mother told her to "follow our bodies, make sure both of us are in the frame at all times, zoom in and out to get close ups". The offender said, "get in close on us kissing and my penis going in and out of her vagina, you'll know what to do, just have fun with it".
As a matter of convenience, I will note that the victim's mother, TS, pleaded guilty to an offence arising from this incident and was sentenced on 17 September 2020 by his Honour Ellis DCJ at Port Macquarie. It was one of a number of offences that his Honour dealt with, being Count 3 on an indictment to which she had pleaded guilty. He allowed a 25% discount for the early plea and provided an indicative sentence, rounded down, of one year and one month. Parity of course is an issue when coming to deal with that particular matter.
Count 24 (Sequence 34) - aggravated act of indecency towards - (masturbating) - s 61O(1). Maximum penalty: five years' imprisonment.
Count 25 (Sequence 21) - aggravated sexual intercourse, victim 14 to 16, (fellatio) - s 66C(4). Maximum penalty: 12 years' imprisonment.
Occurring between 20 July 2012 and 21 October 2012 at Magellan Place, Bonny Hills. The complainant was aged 15 years.
Just before her 16th birthday, the offender asked SS to sit next to him in the main bedroom. He pulled his penis out and started masturbating. He told SS to hold his "balls".
He then told her to "give it a little kiss, just a little kiss". SS said she did not want to. He kept asking her to do so, so she quickly kissed his penis. He said, "That wasn't that bad, that alone just got you $100". SS said, "Whatever, just hurry up and finish".
The offender said to her, "Just put your mouth around it. Just try it. It's good experience for when you have a boyfriend". SS protested saying, "No, I don't want to, you have already taken firsts from me". He kept insisting and telling her it would be a good experience for her. So she gave in and put her mouth around his penis. He thrust his body towards her couple of times before SS took her mouth off his penis and said "That's enough".
The offender said to her, "That was so good, you are going to be so good at it when you get a boyfriend. You just know what to do". He masturbated until he ejaculated while she sat next to him.
He then asked her what she had meant by him taking her firsts away from her. She explained, referring to things such as first hand job and other things he had done to her. He said "it's all just experience. This is how all families should be, there's nothing wrong with what we do".
SS got her learner's driving permit on 22 October 2012. The offender bought her a 1998 Volvo, telling her, "This is paid for out of your working money", referring to the sexual assaults. This was only one of the gifts she received over the years. Her brothers referred to her as being "Daddy's little girl" due to the attention she received from the offender.
[10]
CONTEXT AND HABITUATION OF SEXUALISED CONDUCT
The offender touched the victim in a sexual manner on various occasions from the age of ten until her 16th birthday. Some of the sexual behaviours were witnessed by her brothers. The sexual conduct included:
1. At age ten or 11 causing her to insert her fingers into her mother's genitalia and licking them afterwards;
2. The offender having sex with her mother in front of the victim;
3. Showering with her mother and the victim (12 years of age at the time) regularly, touching her clitoris and masturbating himself;
4. Taking naked photos of SS;
5. Having cunnilingus with her when she was14 years of age in her own bed in the early morning;
6. Encouraging her to engage in sexual foreplay with him when he was with her mother, such as fondling his testicles or stroking his penis;.
7. At 16, simulating sexual intercourse with her by rubbing his erect penis over her genitalia/clitoris and threatening to penetrate her.
SS grew up thinking that the behaviour of the offender was normal behaviour as she had been regularly instructed.
[11]
COMPLAINT
In 2019, SS learned the offender was residing with a woman with a young daughter and became concerned for the daughter's safety.
On 25 May 2019, she told a friend of hers, a police officer, of her concern and that the offender had abused her numerous times. The friend reported the matter to other police. SS subsequently spoke to and provided a statement to police.
[12]
ARREST
The offender was arrested at St George Police Station on 26 June 2019 in relation to this matter. He declined to participate in an ERISP as was his right.
The New South Wales Department of Corrective Services "Conviction Sentences and Appeal's Report" indicates that he had been admitted at Port Macquarie Police Station on 29 May 2019 and received bail on 30 May 2019 before he was next admitted to custody on 26 June 2019.
He has remained in custody as a result of this offending from that date, but the earlier two days, may also be in relation to relevant charges and if so must also be taken into account.
[13]
FACTS IN RELATION TO TS
Count 26 (Sequence 28) - aggravated Incite act of Indecency with - s 61O(1). Maximum penalty: 5 years' imprisonment.
Occurring between 12 July 2006 and 13 July 2008 at Lake Cathie. The complainant was aged 12 or 13 years.
When TS was about 12 or 13 and residing at Lake Cathie, he did not want to go to school one day, so he went into the main bedroom and told his mother and the offender that he was sick and did not want to go to school. The offender said to him "The only way you're not going to school is to drink breast milk from your mum".
TS ended up in bed with the two of them. His mother was topless; she squeezed a nipple and a milk-like substance came out. TS licked it and then sucked her breast for a short time. He then asked if that meant he could get a day off and the offender replied "Yes".
TS described growing up in an environment where they were told nudity and showering together was normal. When he was about eight years of age there was a family photo taken of all of them on a bed, naked.
[14]
VICTIM IMPACT STATEMENTS
Before dealing with the objective seriousness of the individual offences, I will refer to the Victim Impact Statements which are before the Court. There are Victim Impact Statements from GS, JG, SS but no Victim Impact Statement from TS.
The three Victim Impact Statements provided, without referring to them in detail, provide clear evidence that the offender's offences against the three female children have seriously affected their development and their interrelationship with the world, as well as other persons. They are eloquent testimony to the fact that offending of this nature against young children has dire consequences that persist for many years and might reasonably be expected to affect them for the balance of their life, particularly once they become aware that the conduct that they were led to believe was normal was in fact perverted.
I note that GS refers to herself as having as a result made a number of attempts at suicide in the past and having been diagnosed with PTSD as well as perceiving herself as being of little worth. As well as suffering from PTSD, she suffered from anxiety, flashbacks, depression, insomnia and emotional breakdowns.
JG refers to herself as ending up with drug addictions and having trust issues particularly with males as well as low self-esteem and as to how the offending has affected her everyday life, not being able to hold down a job and being fearful for her own children.
I note that she refers to the offender's sister G, who at the time was going out with her father, who has provided a reference for the offender in this matter, as bribing her with money to keep her mouth shut because if she spoke out it would cause a rift in the family, and warning her that she would be seen as a liar if she did speak out or make trouble. For that reason she did not speak up.
She states that she feels belittled, worthless and isolated and that she had been made to believe that what had occurred was okay. She has felt paranoid about her relationship with the offender and what he might do to her, or the things she loved. She also states that he would refer to her participation in his offending as "my job" and that she now feels that as a child she had been used as a sex worker by someone who should have been protecting her.
She indicates that she constantly feels ashamed of herself for allowing him to do what he did. She also states, "I can't go a single day without hearing, smelling or even seeing anything that reminds me of him and what he did to me for such a long time." Although she thought that, having spoken out, this would give her some small piece of closure and control so that she would be able to move forward with her life, she continues to struggle every day particularly because of the offender's abuse of his power and position in relation to her. She still feels that he continues to have some control over her life and that she will never be free from him. She describes that as a result of what he did to her every day of her childhood she did not see herself as having had a childhood but rather a nightmare.
In my view, the overall effect of the Victim Impact Statements is that in relation to the three victims who have provided them it is reasonable to say that the impact on them is at the very highest end of what might be expected by way of typical and expected consequences of such offending.
[15]
OBJECTIVE SERIOUSNESS
The Court is required to assess the objective seriousness of the offences. It has become almost the standard practice of the profession, both prosecution and defence, to refer to all offences as to where they might fall on a range from the least objectively serious to the most objectively serious and to contrast that with the mid-range of objective seriousness.
As the Court of Criminal Appeal has indicated on many occasions, it is only necessary to refer to the mid-range of objective seriousness when dealing with an offence that has a standard non-parole period provided by the legislation.
I note that the prosecution in this matter has consistently referred, whether the individual charge has a relevant standard non-parole period or not, to the offence as falling on a scale which includes a mid-range.
In respect of the submissions made on behalf of the offender, the oral submissions made by Mr Lloyd QC on his behalf were effectively in accordance with the written submissions that were provided under the hand of Dr Accoto, solicitor for the offender. In the written submissions objective seriousness was referred to generally as:
Para 22: "It is submitted that the Court would find the acts of sexual intercourse that are the subject of the charges in this case are at a lower level of objective seriousness".
Para 26: "However, in considering the offending conduct as a whole it is respectfully submitted that although the offences are objectively serious collectively they should be characterised as towards the lower mid-range of objective seriousness."
As both parties have referred to the mid-range in their submissions, I will follow suit, even though in relation to many of the offences the Court of Criminal Appeal has indicated that it is not necessary, or is perhaps even inappropriate.
In R v Gavel [2014] NSWCCA 56, the Court stated:
"This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [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-[39]. 32 VR 361 at 364 [3], 368-372 [26]"
I cite Gavel simply to acknowledge that it has long been recognised that serious harm is caused to child victims by this type of conduct.
[16]
OFFENCES IN RESPECT OF GS
As to the objective seriousness of the offences in respect of GS, the offending was committed against the victim occurring on a regular basis from the time she was nine years of age, although the first charged offence was when she was ten years of age and the offending continued until after her 16th birthday. What that indicates is that the offending was not isolated. The offender is not to be sentenced for matters which were before the Court as part of the agreed facts as context evidence.
The facts disclose that the offender habituated the victim to sexual abuse by telling her it was a normal occurrence but that others would not understand. He engaged in a concerted effort to facilitate his regular offending against the victim while also minimising the risk of her complaining. This type of conduct cannot be characterised as opportunistic but rather as an effort to exploit the trust and naivety of a young child.
Counts 1, 2, 3, 5 and 8 - each being indecent assault on a child under 16 years of age, namely 10 to 15 years.
In relation to those counts, however they may have been precisely charged, the offender committed a number of sexual offences which included skin‑to‑skin touching of the genitalia, which in the past has been found by the Court of Criminal Appeal to be properly regarded as "considerably serious examples of their type, and the more so the younger the victim" being a reference to R v Van Ryn and offences contrary to s 61M(2).
As to Counts 1, 2, 3 and 8, each of those offences involved the offender touching the victim on the outside of her clothing.
For Counts 1 and 8, that conduct involved the offender rubbing his penis against her buttocks and vagina respectively. During the acts which constitute Count 8, the offender was also kissing the complainant and rubbing her breast. Counts 2 and 3 involved the offender rubbing the victim's vagina on the outside of her clothing. Though there was a lack of skin to skin contact, the acts in each count involved rubbing on the victim's genital area and the use of the offender's penis to touch the victim. I accept that these offences in the circumstances fall below the middle of the range of objective seriousness for offences of this kind.
Count 5 involved the offender licking the victim's bare breasts. I accept this falls about the middle of the range for offending of this type as it involved skin to skin contact with the then 13 year old's breasts by the use of the offender's tongue.
Counts 4 and 6 were sexual intercourse with a child ten to 14 years of age and under authority. As has long been recognised, there is no strict hierarchy of seriousness based on the type of intercourse occasioned and it is necessary to look at the whole of the circumstances of the offending. In each of Counts 4 and 6 the offender rubbed the 13 year old victim's clitoris which constitutes penetration of the victim's genitalia. It involved the use of his finger and was limited to her clitoris. In the circumstances, I accept the Crown's submission that the conduct falls just below the middle of the range for offending of this kind.
In relation to Count 4, after the offender touched the victim on her genitalia on the outside of her clothes in Count 3, he then reached under her clothing and rubbed her clitoris. Though this offending is part of the same incident as Count 3, the acts committed are individually serious, and indeed, must warrant some degree of accumulation. I would indicate in respect of the rubbing of the clitoris on this occasion that it also falls just below the mid-range of offending.
Count 7 was sexual intercourse with a child 14 to 16 years of age under authority. This conduct relates to the offender again touching the victim on her clitoris at a time when she was 14 years of age. For the same reasons as expressed above, I find that it falls just below the mid-range of seriousness for offending of this kind. In each case that is not to indicate that it is not a serious form of offending.
In respect of this victim, there are some statutory aggravating features, that is, pursuant to:
s 21A(2)(eb) of the Crimes (Sentencing Procedure) Act 1999. The offences were committed in the home of the offender which he shared with the victim's maternal aunt, and which was also the home of the victim's grandmother. Notwithstanding that the victim was a visitor to those homes, the victim visited these places regularly, and I accept that she had a right to feel secure and safe when she visited there. That right was abused.
s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999. The offender was also in a position of trust to the victim. He was her uncle. He was an adult and was often responsible for the victim's care. He was in a position of trust to the victim and his offending is a breach of that trust. While many of the offences are aggravated by the offender being in a position of authority over the victim, a breach of trust and an abuse of authority are two distinct concepts - see the reasoning of Bathurst C J in MRW v R [2011] NSWCCA 260 at 77.
The Court is required to be careful in approaching this matter on sentence so as not to double count to find that all of the offences are aggravated by the offender's breach of the victim's trust in him. Counts 4, 6 and 12 already take into account that the offences were committed while she was under his authority.
[17]
OFFENCES IN RESPECT OF JG
Count 9, incite person under 16 years of age, namely 14 years, to commit act of indecency with himself. The offender offered the victim money to watch him masturbate. She accepted and he masturbated in front of her. She was 14 years of age. The offending happened on more than one occasion and so this event was not isolated. On such occasions the offender would ask the victim to grab his penis and she would. He would ejaculate on to the floor or in his hand. He would pay the victim $50 to $100 for allowing him to do so. I accept that this matter falls above the mid-range of objective seriousness for offences of this nature as it involved the victim touching the offender's bare penis and him ejaculating in front of her.
Count 10, indecent assault child under 16 years, namely 14 years. The offender grabbed the victim's breasts outside her clothing in a joking manner. It is accepted that this offending falls towards the lower end of the range for offending of this kind.
Count 11, commit act of indecency towards person under 16 years, being 14 or 15. The offender offered the victim money to watch him masturbate. She accepted and he masturbated in front of her. I again find that this offending falls just below the mid-range of objective seriousness for offences of this kind.
As to the statutory aggravating features regarding JG, the offences were aggravated by the following matters:
s 21A(2)(eb) Crimes (Sentencing Procedure) Act. Counts 9 and 10 were committed at the victim's home.
s 21A(2)(k) Crimes (Sentencing Procedure )Act. The offender was in a position of trust to the victim. He was the brother of her father's partner. The offending was in breach of that trust.
[18]
OFFENCES IN RESPECT OF SS
As with GS, the offending committed against the victim occurred on a regular basis from the time she was nine years of age until her 16th birthday. The offender engaged in a concerted effort to normalise sexual conduct with himself and the victim's mother and all three of them together. That normalisation occurred on a regular basis and became part of the family life of the complainant, and it was in that context that the offender committed the offences with which he is charged. I note again that of course I am not sentencing in relation to that material which was provided as context evidence.
Counts 12 and 13, aggravated commit act of indecency towards child under 16 years, namely 12 years, while under authority. The offender masturbated in front of the complainant and I accept the Crown submission that this falls below the mid-range or just below the mid-range of offences of this kind.
Count 14, sexual intercourse with a child ten to 14 years, namely 12 years, being in the mid-part of that range, and under authority.
After committing the offence the subject of Count 13, the offender rubbed the victim's clitoris with his fingers. She protested and tried to close her legs but he persisted. Given the offender's persistence, it is accepted that his conduct falls in the middle of the range for offences of this kind. Although that offending is part of the same incident as Count 13, the acts committed were individually serious and in due course there will need to be some degree of accumulation taken into account.
Count 15, aggravated incite act of indecency with a child under 16 years, namely 13 years, while under authority. The offender caused the victim to have a shower with him and then to masturbate his penis. This involved the offender and victim being naked in the shower and her handling his bare penis. I accept that the matter can be regarded as falling just above mid-range for offences of this kind.
Count 16, sexual intercourse with a child 10 to 14 years, namely 13 years, which is in the upper end of the range, while under authority. Following the last incident, the victim's mother also entered the shower and took over masturbating the offender. The offender rubbed the victim's clitoris as this occurred. The offender was engaging in this conduct in the company of the victim's mother and in a situation where the victim would have had nowhere to turn for assistance. The emotional disturbance which would flow from sexual conduct with one's mother present is, I accept, significant. Accordingly, I accept that the offending falls above the mid-range for offences of this kind.
Count 17, aggravated commit act of indecency towards a child under 16 years, namely 14 years, while under authority. Again, 14 years is towards the upper end of the year range covered by the section. The offender masturbated in front of the complainant just after they had had a shower and I accept that the offending in this case falls just below the mid-range of objective seriousness for such an offence.
Count 18, sexual intercourse with a child 14 to 16 years of age, namely 14 years of age, noting that that is the lowest end of the range covered by the legislation, whilst under authority. Before committing the offence the subject of Count 17, the offender rubbed the victim's clitoris while he continued to masturbate. He ejaculated on her leg and cleaned it off with tissue. This in my view was degrading behaviour in ejaculating on the victim, and in the circumstance I accept that the conduct falls in the middle of the range for offences of this kind. Although this offending is part of the same incident as Count 17, I accept that the acts committed are individually serious and in due course will warrant some degree of accumulation to be taken into account.
Counts 19 and 20, sexual intercourse with a child 14 to 16 years of age, namely 14 years, while under authority. Once again, the age of the victim was at the lowest end of the range covered by the section. The offender rubbed the victim's clitoris after they had their usual shower. In the circumstances, I find that the offending falls just below the middle of the range for objective seriousness for offences of this kind.
The offender then knelt between the victim's legs and performed cunnilingus on her. The Crown submitted that this offending falls just above the middle of the range for offences of this kind.
The submissions on behalf of the offender, in my view, are essentially silent in terms of any delineation, but I have reached a different view to the Crown. I would assess the offending as falling at the mid-range of seriousness for an offence of this kind rather than just above as the Crown submitted.
Counts 21 and 22, sexual intercourse with a child 14 to 16 years, namely 14 years, while under authority. Again I note 14 is the lowest end of the range for this type of offence. The offender made the victim lay on the bed and recorded himself performing cunnilingus on her (Count 21), and digitally penetrating her, (Count 22). The act of filming the complainant was in my view degrading, and increases the objective seriousness of the offence. There is at least no evidence of the recording being provided to anyone else. While the offender's unshaven face caused her some pain, there is no suggestion that that was significant. I note that the Crown submission is that the offence falls above the middle of the range of objective seriousness, and again I note, in my view, interpreting the submissions made on behalf of the accused, there is no particular submission made in respect of this offence, but I have reached a different view to the Crown rather than expressing it as falling above the middle of the range. I would express it as falling just above the middle of the range. Again, although the offending arises from the same incident, the acts were individually serious and will warrant in due course some degree of accumulation.
Count 23, aggravated commit act of indecency toward a child under 16 years, namely 14 years, while under authority. Fourteen years is towards the upper end of the range. On this occasion, the offender and the victim's mother caused the victim to film them having sex together, so the offence was committed in the company of each and instigated by both the offender and the victim's mother. It included the offender and the victim's mother essentially being the stars and directors of their own pornographic video recording, placing the victim in the position of being the camera operator with directions to focus on their genitalia and to move the camera around so that various positions could be better recorded rather than what might have happened if the camera was simply mounted on a stationary tripod. The recording itself was of six minutes duration. In my view, the offending on this occasion clearly falls above the mid-range of objective seriousness for offences of this nature.
Count 24, aggravated commit act of indecency towards a child under 16 years, namely 15 years, while under authority. Again, the age is close to the maximum age relevant to the section. The offender masturbated in front of the complainant and caused her to hold his testicles. I accept that it falls just below the middle of the range for an offence of this kind.
Count 25, sexual intercourse with a child 14 to 16 years of age, namely 15 years, while under authority. The age is in the middle of the appropriate range. Just after committing the previously referred to offences, the offender caused the victim to kiss his penis. Over her protests, he then cajoled her into putting his whole penis into her mouth and once it was inside, he thrust his penis into her mouth a couple of times before removing his penis and masturbating until he ejaculated.
In the circumstances I accept that the offending falls at the mid-range of offending of this kind, particularly in the absence of having ejaculated in her mouth. Again, although it is part of the same incident as Count 24, the acts committed were individually serious and again there must be some degree of accumulation.
[19]
Aggravating features regarding SS:
s 21A(2)(e)(b) Crimes (Sentencing Procedure) Act. The offences were committed at the home of the victim, shared with the offender. The victim had a right to feel secure and safe in her own home and that right was abused by the offender.
s 21A(2)(k) Crimes (Sentencing Procedure) Act. The offender was in a position of trust with the victim. He was her mother's partner and an adult living in her home and often responsible for the victim's care. Accordingly he was in a position of trust. Again while it is aggravated by the offender being in a position of authority as pleaded in each of the offences relating to SS, it is an additional circumstance of aggravation as a breach of trust is a distinct concept from the abuse of authority. However, I note that I am required to avoid double counting.
[20]
OFFENCE IN RESPECT OF TS
Count 26 - aggravated incite act of indecency with child under 16 years, namely 12 or 13 years, while under authority.
The offender promised the victim that he could stay at home from school for the day if he drank his mother's breast milk, his mother being a co-offender. The victim was in bed with his topless mother and the offender. The co‑offender squeezed her nipple until milk came out and the victim licked and then sucked her nipple for a time. The offence was committed in the company of the mother and indeed she was a participant in it by allowing her son to lick and suck her breast. However it is clear, in my view, that the offender was solely responsible for instigating the act as a means of exercising his power over both the victim and the victim's mother and also demeaning the victim by forcing him to engage in humiliating and degrading behaviour for the reward of being able to skip school for the day.
While there is no Victim Impact Statement from TS I have no doubt that he has been, or will as he continues to mature, be significantly embarrassed by the conduct that he was induced to take part in. As to any statutory aggravating features:
s 21A(2)(eb) it was committed in the home of the victim shared with the offender, and
s 21A(2)(k) he was in a position of trust, although the charge itself is whilst under authority.
[21]
SUBJECTIVE MATTERS
As to subjective matters, before the Court are:
a one page handwritten letter to the Court from the offender. I say one page, it is in fact one page and four lines in large print being Exhibit B1,
a letter from Mr Wayne Cook, the Chaplain provided by the Salvation Army for the Metropolitan Remand and Reception Centre undated,
a letter to the Court from GK, the offender's younger sister dated 2 November 2020,
a letter from AG, being the offender's niece and the daughter of his younger sister, GK, dated 2 November 2020,
a letter from RB, being a younger brother of the offender, dated 4 November 2020,
a letter from JB, being a niece of the offender, dated 5 November 2020,
a letter from Terry Bond, dated 3 November 2020, being related to the offender by marriage, and his cousin who has had a lifelong relationship with him, spanning at least some 50 years with periods of closeness.
a letter from SB, who married the offender in 1994 and who separated from him in approximately 2011, dated 1 November 2020.
a letter from MS, the offender's mother-in-law, dated 8 November 2020.
I note that, having raised some concern with Mr Lloyd at the time the letter was tendered to the Court as to a paragraph where tragically, MS, being the grandmother of GS proceeded to indulge in entirely inappropriate denigration of the victim, as a result of raising that with Mr Lloyd, he indicated that the particular paragraph was no longer relied on, and I have referred to it to indicate that while I was concerned by its content, I will ignore it on sentence and it has been appropriately so marked in Exhibit B2, which contains all of the reference letters.
a letter from Mr Michael Gormly. dated 9 November 2020, a brother-in-law of the offender and
a letter from Ms Pamela Zimmerman, dated 10 November 2020, a neighbour of the offender for approximately 15 years at Laurieton.
a Certificate, dated 18 October 2019, recording that the offender has attended a program entitled "Remand, Domestic Violence" conducted at Silverwater, indicating that he has attended domestic violence sessions in relation to "Caring", "Coping", "Connection", "Communication", "Change" and "Choices" on various dates while in custody.
a psychiatric report from Dr Jeremy O'Dea, dated 20 November 2020.
the offender's Criminal History, which I will simply indicate records that he has not been previously convicted of any criminal offence. In that sense, he is a person of good behaviour and I note that since the commission of the last offence with which he is charged, he has not been charged with any further offences prior to being taken into custody.
the New South Wales Corrective Services Sentence and Appeals Report indicating that he has not been found in breach of any prison regulation in the period since he has been taken into custody.
Subjective matters are drawn from that material.
Chaplain Cook refers to the offender as being a welcoming, helpful and encouraging inmate. The offender approached him in relation to taking part in the Positive Lifestyle Program which is an eight week program that deals with such issues as self-awareness, stress, self‑esteem, anger, grief and loss, future directions, depression and loneliness and assertiveness. He has apparently completed all sessions and received a certificate of completion. He refers to him as having "given his all" to the program.
The offender's younger sister GK, who is some seven years younger than him, indicates that she moved to Laurieton in April 2003 to be closer to the offender and his then wife SB. She refers to him as having always been there to help her mentally and financially throughout her life and having always been kind, considerate and generous and going out of his way not only to help her but any of his close family friends. She states that she has witnessed him succeed in business of carpet laying and sacrificing a lot to provide for his wife and their life in Laurieton. She refers to him as having been well loved by anyone who comes into contact with him and describes him as having many strong character traits, being "reliable, tenacious, self-aware, resilient and adaptable". She also refers to him as being a hard worker and self-sufficient and having lost everything as a result of these matters and being denied bail and accordingly unable to continue to work. She also referred to him as suffering from disgrace in the neighbourhood and community in the regional area in which he had lived for some 20 years.
Of note in respect of her reference is that she refers only to being made aware of the charges against him and that those charges are "historic sexual offences involving children under the age of 16 years". There is nothing contained in her reference that indicates that she has any greater knowledge than that they are child historical sexual offences. No doubt she is also aware of the names of some of the victims. The reference would have been much more meaningful if it had been indicated that she had in fact read the agreed facts which provide clear insight into the horrendous nature of the offender's perversity in relation to children. There is no indication in her reference that the offender has ever expressed to her any remorse or contrition. Nor is there any expression in her reference that she appreciates in any way the significant impact on any of the victims, including what appears to be her step-daughter.
As to the reference from AG, his niece and the daughter of his younger sister G that I have just referred to, she says that he always made her feel safe and secure and never made her feel uncomfortable in any way, and that he was supportive of her. Again, there is nothing in the reference which indicates that she has any greater knowledge of the charges other than that they are historic sexual offences involving children under the age of 16 years. Again, I note the reference would have been much more meaningful if it was written in the light of being able to say that she had read the agreed facts. Again, there is no indication in the reference that the offender has ever expressed remorse or contrition to her.
[22]
Borri Sentence - JusticeLink 5FEB21 (88077, docx)
[23]
Amendments
28 November 2022 - Annexure of JusticeLink entries demonstrating that a 25% discount was allowed in respect of each plea on 5 February 2021.
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: 28 November 2022
RB, one of the offender's younger brothers, also speaks highly of the offender, regarding him as a good and honest person, being kind hearted and generous with his time, and as with other members of the family, indicating that he would continue to support him. Again, the only reference to the offences is to knowing that they are historic sexual offences involving children under the age of 16 years. There is nothing in the reference which indicates the offender has ever expressed remorse or contrition to him.
The reference from JB, the offender's niece, age unstated, again simply refers to being aware of charges of historic sexual offences involving children under the age of 16 years. There is no indication that the offender has expressed any remorse or contrition to her.
The reference from TB, being a cousin of the offender, again refers only to charges of historical sexual offence against minors and indicates his supportive opinion of the offender, stating that "he is at heart shy, caring, anxious, very particular and likes to please others, trustworthy and reliable" and that he as a business owner would have no concern in employing him. As to contrition and remorse, his reference contains the following:
"Most of all I know he is extremely contrite and determined to re‑build his life and to be the best man he can be".
There is no statement as to how he might know that the offender is extremely contrite, or whether that is just simply his belief on the basis of his view of the offender's character over the many years that he has known him. I note of course that knowledge of his character did not include knowing that the offender had been offending against four children for a period of ten and a half years in the grossest of fashions.
There is a further reference that I have already referred to of SB who was in fact the offender's wife for the period between 1994 when they married until they separated in 2011. She refers to the circumstance of becoming aware at some stage, unstated, that he was having an affair with TS, about which she became angry and told him to leave the home, before subsequently asking him to return when their marriage was perhaps or his presence in the marriage was perhaps somewhat reduced and she was residing between their house and her parents' house around the corner to help care for her father who was then ill before they eventually separated in approximately 2011.
She refers to him as being "heavily reliant on my family, friends, neighbours and people in the community" and having a strong network of support which he would continue to have in the future. She also refers to him having completed courses while in custody to better himself, and indicates that she will continue to provide ongoing support when he is released. She states that she is of "the belief that Mark is truly repentant". There is no indication of the basis on which she so believes, and otherwise she simply refers to being "fully aware of the charges he has pleaded guilty to, that they involve historic sexual offences involving children under the age of 16 years". There is no reference by her to any of the victims, who it would be plain that she knows at least some of.
I have already referred to the reference of MS, being the grandmother of GS. She again simply refers to historic sexual offences involving children, but this does indicate that she knows that GS is one of the complainants. Despite that fact, she states:
"Mark will always be welcome in my home to reside with myself and my daughter. He has my full support and I wish him well."
While I have difficulty with how the grandmother of one of the victims in this matter could make such a statement, I accept that that is her attitude to the offender and his offending.
The letter from Mr Gormly again only refers to knowledge that he has pleaded guilty to historic sexual offences involving children under the age of 16. He regards him as a hardworking and honest man and states that he would have no hesitation in recommending the offender for work despite the offending. His contact with the offender has been on a social level. There is no indication that the offender has expressed remorse or contrition to him, but he otherwise states that the offender is a respected member of the neighbourhood and community and highly regarded by others in the flooring industry.
Again, the final reference was from Pamela Zimmerman, his neighbour for some 15 years in a house across the road. She indicates that she understands the matter involves historical sexual offences involving children. She states that he is a wonderful neighbour, a perfect gentleman and very respectful. She is apparently a retired person. She refers to:
"We miss him terribly and cannot believe what has happened to a lovely friend and neighbour. I am beyond belief that this has happened as I believe Mark to be a man of good upbringing and principles".
She also notes that she and her husband Robert would be prepared to give him a roof over his head and support him in his life going forward. Again, there is no evidence that he has ever expressed remorse or contrition to her.
Like many offenders of this nature who commit serious offences, whether it be in the short term or the long term, as here against young children, many of them manage to hide their offending from the community at large, and to otherwise be well respected by members of the community who form an opinion of them in the absence of knowing how they are currently misconducting themselves towards children. Opinions formed in those circumstances and without clear statements in references as to knowing the exact nature of the offending are not of significant assistance to the Court, even though I accept that the various referees have expressed their genuine opinions.
I have previously referred to the fact that the offender has no previous criminal history. He is apparently working as a sweeper within the prison system and as I understand it, despite the nature of his offending, is reasonably regarded within the system as he is a sweeper. There is no evidence before me that the conditions of his custody have been particularly onerous or subject to the sort of conduct which is typically committed by other prisoners against offenders of this nature, which frequently requires them to ask to be placed in protective custody. That is apparently not the case in respect of this offender.
As I have referred to, the offender has tendered to the Court a letter to the Court from himself in which he expresses:
"… my honest feelings of guilt, shame and remorse for the victims and their families due to my past offending. I am aware of the impact this has had on them and I will always be deeply sorry. I also apologise to the Court for ever offending and I realise what I had done was wrong. I have honestly learnt my lesson."
He then goes on to refer to the period that he has been in custody so far, his efforts and his preparedness to do programs. He refers to himself as being a model inmate with faultless case notes. He also refers to the shame and sorrow that he has put his own family through. And I should have referred when I was referring to the subjective material that was available to the Court, to the fact that there is a Sentence Assessment Report. I note in respect of the letter to the Court that such letters are generally of little assistance to the Court as the offender cannot be cross-examined in relation to the content of a tendered letter. Even though it was not objected to, such letters must have significantly less weight than evidence given on sentence by the offender which can be appropriately challenged by cross-examination.
In general, in Imbornone [2017] NSWCCA 144 the Court at [55] referred to the well-known principles in relation to what the Court has frequently said in respect of untested out-of-court statements or statements made to third parties and the caution with which they should be treated. The same principles apply in general, in my view, to letters to the Court from an offender which are not subject to cross-examination. It is very simple to write a letter stating, "I have honest feelings of guilt, shame and remorse for the victims and their families."
The report of Dr O'Dea, psychiatrist, indicates that he had the opportunity to read the statement of facts and agreed facts and that he interviewed the offender while in custody for a total of approximately 45 minutes due to prison issues on 13 November 2020, although some 60 minutes had been allocated for the interview. He refers to the offender at the time of the interview as being 59 years of age and having previously lived with his family in Laurieton with his female partner of seven years, working as a floor and carpet layer prior to his arrest and detention. And I should have noted before in relation to his wife of the past, SB, that much of the offending occurred during the period when he was married to her but interfering with the children of other women, in particular, TS.
He is said to be the middle child of a family of five, his father emigrated from Italy at the age of 18 and died in 2019 at the age of 85. The offender described his father as drinking too much but otherwise being a quiet and nice guy and he had remained friends with him even though his mother had eventually left his father. His mother had attended to home duties throughout her life and she died in 2000 at the age of 68. He states that he got on well with her. There appears to be nothing in relation to his upbringing or his relationship to his parents that in any way explains his conduct over the ten and a half year period the subject of the charges. The report goes on to refer to his various siblings; it states that he did not report any significant family history of psychiatric, alcohol or other drug or legal problems. He was not the victim of sexual abuse as a child, according to what he informed the psychiatrist of. Although he suffered a speech impediment from childhood, he had attended a two week course to deal with that, although, as I understand it from the agreed facts, he may still have occasionally some impediment in terms of speech from time to time. He left school in Year 7 at the age of 13 because he did not like school, and he went to work with an older brother who had a carpet-laying business in Brisbane where he worked for six months but returned home because his mother missed him and he went back to school to do Year 8 for about seven or eight months, when he again left school to work with his older brother who had returned to Sydney.
He has worked in the carpet laying business ever since, including running his own carpet laying business with his ex-wife, who was a business partner despite their separation, up until the time that he was placed in custody.
He has apparently drunk alcohol all his adult life, and over the past 20 year period, he would usually commence drinking alcohol at approximately 12 noon or 1pm and would drink alcohol on and off until bedtime, although at one period he started drinking alcohol early in the morning. He has apparently previously consulted a psychologist seven years ago in respect of his drinking. The report includes a statement, "He told me that he had not used illicit substances on a regular basis through his life". That appears to indicate that he may on occasions use some illicit substances, but was not otherwise a regular user. That he may have used illicit substances irregularly during his life is not in my view a matter of any significance to sentence.
He indicated to the psychiatrist that he had no specific general medical problems throughout his life and had not been prescribed any regular medication.
He had a relationship with his first wife for approximately seven years from 1997 to 1983, with a daughter who is now aged about 39 years and a son aged 37 years. As I understand it from the reference, he has little contact with them, although I might stand to be corrected on that.
His next long-term relationship was with his second partner, which lasted for 23 years until 2010, who I take it to be SB, and that they had no children together.
He is said to have had a seven year relationship with his most recent partner. The report refers to that partner having a "little girl" when he met her, and that there had been one charge brought against him in respect of that child in May 2019. The report indicates that that charge was subsequently discontinued. I will ignore that as it does not necessarily link to any of the complainants, although it is possible that that explains the entry in his custodial record of having been arrested on a date in May 2019 and released the following day, which I would have otherwise have presumed to have been in relation to at least one of the complainants in this matter.
As to the account given by the offender to the psychiatrist in respect of the offending, the report contains the following:
"Mr Borri's Account of the Index Sex Offences.
36. While Mr Borri acknowledged the index sex offences, he disputed some of the factual components of the allegations. Whilst he told me that a significant number of the index offences were committed whilst he was under the influence of alcohol, '...there were some (when) I wasn't drunk...'
37. In relation to the first set of sex offences, Mr Borri told me that, '...I can remember vaguely parts of that... because every time we were down there (at the grandmother's residence)... we were all drinking (alcohol)... (the victim's mother) ... and (the mother's partner) were drinking (alcohol)...like a Saturday afternoon...or Sunday... we would all be drunk...'
38. In relation to the second set of offences, Mr Borri told me that, '...I had an affair with (the victim's) mother...I moved in with this person for three months...I found out she was lying...I don't want to sound like I'm justifying things... (but) my mother died...(my partner) and I (were) growing distant...I started an affair...'. He also told me that the index sex offence against the male child, '...was a stupid dumb joke...'
39. In relation to the third set of sex offences Mr Borri told me that the victim, '... stayed with her boyfriend's family...she was 15 (years of age at the time)...the family was a known drug family up there...', and that,'...she was asking for money...I offered to pay her once...'"
I note that there is no evidence contained in the agreed facts at any point that any of the offences were associated in any way with the consumption of alcohol, and that in any event s 21A(5AA) of the Crimes Sentencing Procedure Act provides that where intoxication is self-induced it is not a mitigating factor. In my view, there is nothing in the facts or otherwise to support the assertion that the offender was in fact affected by intoxicating alcohol at any time while committing the offences.
They did occur over a ten and a half year period.
The offender was said to have identified himself as being exclusively orientated to adult heterosexual relationships and denied any sexual arousal or fantasies towards female children. His sexual arousal to female children is plainly indicated by the offences themselves. As to whether or not he also suffers from fantasies in that respect could only be known to him, but in the circumstances of his offending I would consider it highly unlikely that he does not from time to time fantasise about sexual relationships with at least female children.
In my view, he was not being forthright or honest with the psychiatrist. Dr O'Dea also stated:
"Whilst he expressed contrition and remorse in relation to his actions in relation to the index sex offences, he conveyed limited insight into and personal responsibility for his conduct in relation to the index sex offences. He was able to display a wide range of appropriate emotional response, with no undue anxiety or agitation evident at interview. No psychosis was evident at interview."
Dr O'Dea was unable to diagnose the offender as suffering from any major psychiatric illness, but noted that his offending behaviour involved three female children and one male child aged between 12 and 16 with whom he had relatively close contact through the extended family connections at the time, and that his offending occurred over a number of years in three separate settings. He then referred to a significant component of the sex offending behaviours as being able to be "conceptualised as opportunistic and at times impulsive and in particular in relation to the second set of sex offences, in circumstances where significant personal and sexual boundaries between adults and children were reportedly absent". The psychologist also referred to the offender as relating that at least a significant component of sex offences related to intoxication with alcohol at the time.
It is clear that while any individual offence may be referred to at the time as being opportunistic and impulsive at that time, that this offender went out of his way to cultivate children against whom he could offend and to place himself in situations, despite his marriage, where he would have access to the children of another woman, with whom he formed what in itself I would refer to as an apparently perverted relationship.
Dr O'Dea also stated:
"While Mr Borri denied awareness of a specific or significant paedophilic component to his sexuality in general, or to his sex offending behaviour in particular, his conduct in relation to the index sex offences would point to him at least having the ability to engage in sexual relations with prepubescent as well post‑pubescent female children; that would satisfy the psychiatric diagnostic criteria for Paedophilia, Sexually attracted to females, not limited to incest, non-exclusive type (so called heterosexual paedophilia)."
(Dr O'Dea provided the highlight as above.)
Dr O'Dea assessed the offender as a low risk for sexual reoffending.
He also goes on to note that in order to deal with the risk of his engaging in further sexual offending behaviours in the long-term he would need to participate in ongoing community psychiatric and psychological assessment and management, and that if specific and significant paedophilic urges or fantasies were to be identified, consideration should be given to the additional judicious use of testosterone lowering or anti-libidinal medications, a number of which he cites as being considered the most effective treatment in assisting patients to better control their deviant sexual urges, fantasies and behaviours in general, including heterosexual paedophilic urges, fantasies and behaviours in particular.
It would seem to be implicit from that that Dr O'Dea was perhaps not entirely convinced that the offender did not suffer from having sexual arousal or fantasies towards female children.
Finally, in relation to subjective matters the Sentencing Assessment Report under the hand of Stewart Gale, Community Corrections Officer, dated 6 November 2020, refers to the offender as being the father of two adult children from a previous marriage and that he has had no contact with them for a significant period of time and he has had stable employment in the flooring industry and apparently casual employment as a horse-breaker/trainer.
As to "Attitude" the report contains the following:
"Mr Borri initially denied his offending, however he accepted responsibility for his offending behaviour and claimed his actions were immature, and that he "wanted to have fun, be cool, and be a younger person". … Mr Borri described his actions as horrible and expressed remorse for his actions against the victims.
Again, the offender reported a regular pattern of alcohol consumption and that he was affected by alcohol at the time of the offending behaviour, which caused him to lose his inhibitions due to his level of intoxication and that he would feel aroused when he was intoxicated in the presence of the victims.
While he was accepting responsibility for his actions, he was relying on intoxication as an explanation, to some extent causing him to lose inhibitions,
I have already referred to the fact that there is no evidence that he was intoxicated at any time, even though I would accept that considering the period over which the offending occurred, ten and a half years, he may well have consumed some alcohol on some occasions, and my previous reference to s 21A(5AA). The sentencing assessment officer referred to him as being as a low medium risk of re-offending.
While there has been some expression of remorse or contrition to others I do not assess it as being of particularly high quality rather than the characteristically trite statements made by accused understanding that they are facing sentence for serious offences and likely to receive a significant term of imprisonment in an attempt to reduce the potential impact. As to the risk of re-offending, in my view, where the offending has taken place over a ten and a half year period in the circumstances that it did in relation to four separate victims, a number of them the subject of cultivation, I cannot find that there is a good prospect of rehabilitation although in my view it will be considerably enhanced by the fact that a significant period of imprisonment must be imposed and the offender will be significantly older by the time he might be first released from custody. Increasing age frequently assists offenders to cease offending. It may well be assisted in addition if those who have expressed their support for him continue to support him despite the comments that I have made about their apparent lack of specific knowledge of the actual offending.
For the purpose of sentencing, I must have regard to s 3 of the Crimes (Sentencing Procedure) Act 1999 and take into account such of the aggravating factors and mitigating factors as are set out in s 21A subs (2) and subs (3). I have determined the sentence in accordance with s 25AA(1) and with regard to the trauma of sexual abuse caused to children in accordance with s 25AA(3) of the Act. I have already referred to the relevant aggravating and mitigating factors as are present as well as other relevant factors.
Any sentence imposed must reflect the objective seriousness of the individual offence, and I must fix a sentence that will ensure that the time the offender must spend in custody reflects all the circumstances of the offences including their objective seriousness as well as the need for general deterrence and specific deterrence. In this matter, specific deterrence is a significant factor to take into account, and in all matters such as this, general deterrence must also be regarded as a significant factor requiring the imposition of a substantial sentence in order to deter others who would commit offences of this nature against children.
As I have said, his increasing age may assist in relation to rehabilitation and also to reducing the prospect of re-offending. It is not as though there is no prospect of rehabilitation, or no prospect of re-offending. Having considered all of those matters, and of course I have considered pursuant to s 5 of the Crimes (Sentencing Procedure) Act that there is no alternative to a penalty other than imprisonment: appropriately no such submission has been made, I intend to proceed by way of an aggregate sentence.
For that purpose, I am required to provide an indicative sentence in respect of each of the offences. I have previously noted that the plea of guilty was in effect from 20 August 2020 when he pleaded guilty at the Port Macquarie Local Court. That was 14 months after he had been arrested in respect of these matters on 26 June 2019. As I have previously indicated, in relation to those matters in respect of which there is a standard non-parole period, where the standard non-parole period only came into effect during the period of the alleged offending, as it is possible the offending occurred before the standard non-parole period applied, I intend to provide an indicative sentence without regard to the standard non-parole period as a guide post as would otherwise have been appropriate. Accordingly, the offender is convicted in respect of each of the 26 offences now before the Court.
In respect of Count 1 Sequence 2, the indicative sentence is one year six months;
In respect of Count 2 Sequence 3, the indicative sentence is two years three months. It is necessary to provide an indicative non-parole period in respect of that matter, and that is one year and eight months;
In respect of Count 3 Sequence 7, the indicative sentence is again, two years three months with an indicative non-parole period, because there is a relevant standard non-parole period, of one year and eight months;
In respect of Count 4 Sequence 24, the indicative sentence is six years;
In respect of Count 5 Sequence 9, the indicative sentence is two years three months and the indicative non-parole period, as there is a relevant standard non-parole period, is one year and eight months;
In respect of Count 6 Sequence 25, the indicative sentence is six years;
In respect of Count 7 Sequence 27, the indicative sentence is four years; in respect of Count 8 Sequence 17, the indicative sentence is one year and nine months and the indicative non-parole period is one year, three months, as there is a standard non-parole period that is relevant as a guidepost. I have slightly rounded it down by 22 days simply to make it an even month: the indicative sentence would otherwise have been one year three months and 22 days;
In respect of Count 9 Sequence 23, the indicative sentence is nine months imprisonment;
In respect of Count 10 Sequence 21, the indicative sentence is one year;
In respect of Count 11 Sequence 22, the indicative sentence is eight months;
In respect of Count 12 Sequence 29, the indicative sentence is one year six months;
In respect of Count 13 Sequence 30, the indicative sentence is one year six months;
In respect of Count 14 Sequence 35, the indicative sentence is six years;
In respect of Count 15 Sequence 36, the indicative sentence is two years;
In respect of Count 16 Sequence 7, the indicative sentence is six years four months;
In respect of Count 17 Sequence 32, the indicative sentence is one year nine months;
In respect of Count 18 Sequence 10, the indicative sentence is four years;
In respect of Count 19 Sequence 11, the indicative sentence is four years;
In respect of Count 20 Sequence 12, the indicative sentence is four years four months;
In respect of Count 21 Sequence 15, the indicative sentence is four years six months;
In respect of Count 22 Sequence 16, the indicative sentence is four years four months;
In respect of Count 23 Sequence 33, the indicative sentence is one year one month;
In respect of Count 24 Sequence 34, the indicative sentence is one year nine months;
In respect of Count 25 Sequence 21, the indicative sentence is five years;
In respect of Count 26 Sequence 28, the indicative sentence is one year;
In respect of Count 23, I note that that is the same offence in relation to which TS was sentenced by Judge Ellis, as previously referred to. I have provided exactly the same indicative sentence as Judge Ellis provided for her on the basis of parity. I indicate that in the absence of the question of parity, I would have specified a more significant indicative sentence, but because of parity, I have simply specified the same indicative sentence as provided by his Honour for her, as I find there was little distinction between them, although his Honour attributed a lesser role to TS than this offender.
I have then taken into account the principle of totality as referred to in Pearce in order to establish an aggregate sentence. As I have previously indicated, there must in the circumstances of this matter be a significant sentence imposed. I note that in the absence of concurrency, the total of the indicative sentences, if one were to follow another without any concurrency, would be some 77 and a half years' imprisonment, however, considering the principle of totality, the sentence I have arrived at is a non-parole period of 12 years with a balance of term of four years.
HIS HONOUR: Madam Crown, I have taken into account the two days of custody that I referred to in the report which may not have been in relation to these offences, are you able to enlighten me?
SCOTT: Yes, your Honour, those two days are not referrable to the offences before the Court.
HIS HONOUR: Then the sentence will commence on 26 June 2019. He will be first eligible for parole on 25 June 2031. The balance of term of four years will expire on 25 June 2035. It will be clear that I have not found special circumstances. I note that it was submitted by Mr Lloyd and Dr Accoto in the written submissions that I would find special circumstances on the basis that the offender has never been in custody before and allow a longer period for the purposes of rehabilitation and return to the community. In my view, the period of four years potential parole is a significant period of parole. It is one year more than the legislation provides for supervision, which is in the ordinary circumstances limited to a period of three years. In my view, four years is an adequate period of time for the offender to have that assistance and to assist him in returning to a lawful life in the community.
HIS HONOUR: Mr Borri, you have been in custody for a considerable period of time already, I take it that you understand what the sentence means in terms of yourself. You are now 60 years of age, having recently had a birthday; you will not be eligible for parole before 12 years have passed. You will effectively be 70 years by the time you are released.
It will be a matter for you in relation to the time that you are now in custody to give the authorities the confidence to feel that you will not be a risk in the community when released. So that is a matter for you but if you manage to convince them of that you are likely to be released at the earliest date, that is, when you are first eligible for parole. So do whatever courses you can, get whatever assistance you can while in custody and do not breach prison regulations in the meantime, all of which are relevant factors in assessing whether you should be released.