R v BR - [2020] NSWDC 335 - NSWDC 2020 case summary — Zoe

NSWNSWDC

R v BR

[2020] NSWDC 335

District Court of NSW|2020-05-06

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At a glance

Source facts

Court

District Court of NSW

Decision date

2020-05-06

Source

Original judgment source is linked above.

Judgment (63 paragraphs)

[1]

introduction

BR ("the Offender") appears today for sentence in relation to 13 counts, together with an additional 10 charges on 9 Form 1 documents relating to a string of incidents that occurred between about 10 and 29 years ago. The Offender is a paedophile and this sentence relates to his offending against 3 victims: his biological daughter, his step-daughter and his step-granddaughter.
The Offender was born in March 1966 and is now 54 years of age. Born and raised in western Sydney, he left high school at the end of Year 9 and worked in various roles, including as a casual factory worker and labourer through a contract labour firm for a number of years. The Offender spent some time working in Darwin as an assistant handyman at a hotel, however, ultimately returned to Sydney to be with family and work in a carpet factory with his brother.
There are three victims of his offending. Their names are set out in the Agreed Facts. To protect their identity, they will be referred to as the First Complainant, the Second Complainant and the Third Complainant in these Remarks on Sentence. No disrespect to them is intended. The offending took place at 4 residential properties occupied by the Offender and others at various times. They will be referred to as the First through Fourth Locations, again to guard against the risk of the complainants being identified. The Offender and any other witnesses will be identified by initials only.
The charges for which he is to be sentenced are numerous and, along with the maximum sentences, are set out in the following table.

[2]

table of charges for sentence Count Description of Offence Statutory Provision Maximum Penalty Standard Non-Parole Period 1* Sexual intercourse with a person under the age of 10 years (the First Complainant) S66A Crimes Act 1900 20 years No 2* Sexual intercourse with a person under the age of 10 years (the First Complainant) S66A Crimes Act 1900 20 years No 3 Sexual intercourse with a person under the age of 10 years (the First Complainant) S66A Crimes Act 1900 20 years No 4 Sexual intercourse with a person under the age of 10 years (the First Complainant) S66A Crimes Act 1900 20 years No 5 Sexual intercourse with a person under the age of 10 years (the First Complainant) S66A Crimes Act 1900 20 years No 6* Sexual intercourse with a person 10 and under 16 years - under authority (the Second Complainant) S66C(2) Crimes Act 1900 10 years No 7* Aggravated indecent assault - under age of 16 years (the Second Complainant) S61M(1) Crimes Act 1900 7 years No 8* Sexual intercourse with a person 10 and under 16 years - under authority (the First Complainant) S66C(2) Crimes Act 1900 10 years No 9* Sexual intercourse with a person 10 and under 16 years - under authority (the First Complainant) S66C(2) Crimes Act 1900 10 years No 10* Sexual intercourse with a person 10 and under 16 years - under authority (the First Complainant) S66C(2) Crimes Act 1900 10 years No 11* Sexual intercourse with a person 10 and under 16 years - under authority (the First Complainant) S66C(2) Crimes Act 1900 10 years No 12 Sexual intercourse with a person 10 and under 16 years - under authority (the First Complainant) S66C(2) Crimes Act 1900 10 years No 13* Indecent assault person under 16 years (DV) (the Third Complainant) S61M(2) Crimes Act 1900 10 years 8 years

[3]

TABLE OF CHARGES ON FORM 1 DOCUMENTS

The Offender has admitted guilt in relation to 10 charges on 9 Form 1 documents and has asked me to take them into account when sentencing him for the sequences to which they attach. These are summarised as follows: Form 1 Attaching to Count Description of Offence Statutory Provision Maximum Sentence SNPP H/sequence number 1st Form 1 H1054 1 Indecent Assault S61E(1A) Crimes Act 1900 6 years No 1st Form 1 H938 S28 1 Aggravated indecent assault S61M(2) Crimes Act 1900 10 years No 2nd Form 1 H1055 2 Aggravated indecent assault S61M(2) Crimes Act 1900 10 years No 3rd Form 1 H059 S5 6 Aggravated indecent assault S61M(1) Crimes Act 1900 7 years No 4th Form 1 H059 S3 7 Aggravated indecent assault S61M(1) Crimes Act 1900 7 years No 5th Form 1 H1056 8 Aggravated indecent assault S61M(1) Crimes Act 1900 7 years No 6th Form 1 H938 S36 9 Sexual intercourse with person 10 < 16 years, under authority S66C(2) Crimes Act 1900 10 years No 7th Form 1 H938 S39 10 Sexual intercourse with person 10 < 16 years, under authority S66C(2) Crimes Act 1900 10 years No 8th Form 1 H938 S23 11 Aggravated indecent assault S61M(1) Crimes Act 1900 7 years No 9th Form 1 H938 S25 13 Possess prohibited drug S10(1) Drug Misuse and Trafficking Act 1985 2 years and/or 20 penalty units No

[8]

Offences Committed Against the First Complainant

In 1991, when the First Complainant was 4 years of age, she was attending a pre-school in outer Western Sydney. On a day between 28 February 1991 and 31 December 1991, the First Complainant was at the family home, the First Location with the Offender. The Offender was 25 years of age at the time. During the day, the Offender took the victim into the shower with him. The shower was running, and the Offender and the victim were naked standing under the water together. Very soon after getting into the shower, the Offender started rubbing his erect penis against the outside of the victim's mouth (Form 1 to Count 1: indecent assault, s61E(1A)).
The Offender did not say anything to the victim at the time, nor did she say anything to the Offender, as she did not want to open her mouth. The assault continued for 5 to 10 minutes.
After exiting the shower, the Offender knelt in front of the victim and said "next time you're going to have to open your mouth." The victim did not say anything back. The Offender and the First Complainant got dressed and left the bathroom.
Within days of the above incident, sometime between 28 February 1991 and 31 December 1991, the Offender (aged 25) and the victim (aged 4) were home alone again when the Offender again took the victim into the shower. The shower was running and the Offender and the victim were naked standing under the water together. The Offender started rubbing his erect penis against the outside of the victim's mouth. The Offender then whispered to the victim "open", inserting his penis into her mouth. The Offender then placed his hand below the victim's chin and pulled it up causing her mouth to close around his penis. The Offender began rocking back and forth causing his penis to move in and out of the victim's mouth (Count 1: sexual intercourse with person under the age of 10, s66A).
After about five minutes, the Offender removed his penis from the victim's mouth and said, "get out and get dressed." The victim got out of the shower and left the bathroom.
From 1992, the First Complainant attended a public school in the same outer Western Sydney location. Between 28 February 1992 and 31 December 1992, when the victim was 5 years of age, her mother LR, the Offender, the Offender's eldest son JR and the victim were at home one evening watching a movie together in the living area. LR and the Offender were seated on the lounge directly in front of the television with their feet on the coffee table between the lounge and the television. There was a blanket laid out over LR and the Offender's laps, which extended out over their legs and feet onto the coffee table. JR and the victim were playing on the ground below LR and the Offender's legs, pretending the blanket was a tent.
At some point in the movie, LR fell asleep on the lounge with JR also seated on the lounge between LR and the Offender. The Offender whispered to the victim, the First Complainant, "Go under the blanket and grab my dick." The victim crawled under the blanket and reached up in between the Offender's legs.
The Offender took hold of the victim's hand and placed it around his penis. The Offender moved the victim's hand up and down on his erect penis and then let go of her hand and said, "Keep doing that." (Form 1 to Count 1: aggravated indecent assault, s61M(2)).
The victim continued to stroke his penis for 10 or 15 minutes which caused her hand to hurt. The Offender reached down beside the lounge and picked up a towel which he placed under the blanket at the end of his penis. He moved the victim's hand and continued without her assistance. The Offender got up and washed the towel in the kitchen before he placed it in the laundry. The victim got up and watched the rest of the movie with JR.
The Offender and LR separated towards the end of 1994 when LR was pregnant with AR. The Offender immediately moved next door (the Second Location) with his new partner EF.
While the Offender was living with EF and before they moved to another location, the Third Location, in late 1995, the Offender still had a key to the First Location and would move freely between the two houses. AR was born on 24 February 1995.
Between 28 February 1992 and 31 January 1995, when the First Complainant 1 was between 5 and 7 years of age, the Offender entered the victim's bedroom one evening wearing only underwear, and got into bed with the victim. The victim did not share a bedroom with anyone else at this time. The Offender kissed the victim's neck, tugged at her ear with his teeth and stroked her hair. The Offender then placed his left hand inside the victim's pants, on the inside of her underwear, and used his fingers to rub the outside of the victim's vagina. The Offender continued doing this for some time (Form 1 to Count 2: aggravated indecent assault, s61M(2)). As the Offender did this, he was breathing heavily and occasionally nibbled on the victim's ear with his teeth.
After about five minutes, the Offender got up and stood against the bed and pulled down his underwear revealing his erect penis. The Offender said, "Sit up on the side of your bed."
The victim sat up directly in front of where the Offender was standing with his erect penis in his hands. He said, "Put it in your mouth, suck my dick". The victim opened her mouth and the Offender inserted his penis into the victim's mouth. The victim closed her mouth around the Offender's penis. The Offender grabbed hold of the bunk bed above the victim's bed and rocked and forth, causing his penis to move in and out of her mouth (Count 2: sexual Intercourse with person under the age of 10, s66A).
After about five minutes, the Offender removed his penis from the victim's mouth and ejaculated into a small towel. The Offender left the bedroom and went into the bathroom. The victim got back into bed and went to sleep.
On one occasion, between 25 February 1995 and 14 October 1996, when the victim was between 7 and 9 years old, the Offender sent the First Complainant to the shed where she waited for him. The Offender arrived moments later, closed the shed door and removed his pants and underwear. He picked the victim up and sat her on the chest of draws. The Offender kissed the victim's vagina before he separated the lips of her vagina with his fingers and licked in between her vaginal lips. The Offender continued this for about five or ten minutes before he stopped and kissed around the victim's belly (Count 3: sexual Intercourse with person under age of 10, s66A). The Offender said, "I love you", and picked her up off the chest of draws and stood her on the ground. The victim put her pants and underwear back on and left the shed.
On the second occasion in the shed, sometime between 25 February 1995 and 14 October 1996, when the First Complainant was aged between 7 and 9 years, the Offender again sent the victim to the shed where she waited for him. The Offender arrived moments later with a towel in his hands, which he placed on a chest of draws and pulled out his erect penis over his waist band. The victim bent over slightly, and the Offender put his penis into her mouth. He rocked back and forth, causing his penis to move in and out of her mouth (Count 4: Sexual Intercourse with person under age of 10, s66A).
Several minutes later, the Offender suddenly removed his penis from the victim's mouth, put his penis back into his pants and said, "(your brother) is coming". The Offender and victim then both left the shed.
Between 1 January 1995 and 31 December 1995, when the First Complainant was 7 or 8 years old, the Offender and EF were in the process of packing up the furniture in the Second Location to move to the Third Location. The Offender made the First Complainant sleep at his house the night before they moved. The Offender and the victim slept on a fold-out double lounge together in the living area. The Offender's step daughters, NM and the Second Complainant, were sleeping on the floor nearby in the living area.
Prior to going to sleep, the Offender removed the First Complainant's pants and underwear and moved himself in between her legs. The Offender rubbed his erect penis in between the lips of the victim's vagina and then attempted to push his penis into the victim's vagina. The Offender was able to partially penetrate the First Complainant's vagina with his penis (Count 5: Sexual Intercourse with person under the age of 10: s66A).
After about 7 or 8 minutes of the Offender attempting to insert his penis deeper into the First Complainant's vagina he stopped suddenly, and laid back onto the lounge as a result of hearing either the Second Complainant or NM laugh. After a few minutes, the Second Complainant or NM were silent again, so the Offender got the victim to sit on his lap. He continued attempting to insert his penis into her vagina, but the First Complainant moved about to make it difficult for him. Eventually the Offender stopped trying, and he allowed the victim to get dressed and go to sleep.

[9]

Offences Committed Against the Second Complainant

In 1994, when the Second Complainant was in Year 5, she and her family moved to the Second Location. At that time, the victim was living with her mother, EF and her siblings, NM and BM.
Sometime in 1994, the Second Complainant's mother and the Offender commenced a relationship. At the time, the Offender's ex-partner, LR (with whom the Offender was residing at the First Location) was pregnant with her son, AR. The Offender then moved into the Second Location with the Second Complainant's mother.
In 1995, when the victim was in Year 6 and was 11 or 12 years of age, she was at the Second Location with the Offender, her mother EF and her younger sister NM. EF and NM were in bed sleeping, whilst the Second Complainant was in the lounge room watching television with the Offender. The Second Complainant was sitting on one lounge, and the Offender was on a different lounge. The Offender said to the Second Complainant "come over here and sit next to me". The Second Complainant moved to sit next to the Offender. The Offender then kissed her on the lips and cuddled her. She could smell alcohol on the Offender's breath (Form 1 to Count 6: aggravated indecent assault, s61M(1)).
The Offender then removed his penis from his pants. The Second Complainant, observed that the Offender was circumcised, and it was not erect at the time. The Offender then pushed the Second Complainant's head down, causing her mouth to touch his penis. The Offender told her to "suck it". The Second Complainant put the Offender's penis in her mouth and closed her lips around it. The Offender took hold of the victim and caused her head to move up and down on his penis. This continued for several minutes until the victim got up and went to bed (Count 6: sexual intercourse person 10 & under 16-under authority, s66C(2)).
Also during that same year, the Second Complainant was at home with the Offender and her eldest brother. Her brother was in his bedroom with the door closed, listening to loud heavy metal music. At this time, the victim was near the laundry in the premises. The Offender approached her and guided her into the laundry.
The Offender pressed his body up against the victim and started kissing her on the lips. He removed his penis from his pants and rubbed it against the victim. After a few minutes a noise startled the Offender and caused him to put his penis back into his pants and walk away. The Second Complainant looked at her blue flannelette shirt and saw a cream coloured liquid on it around her stomach area. The victim immediately removed the shirt and threw it in the bin (Count 7: Aggravated indecent assault, s61M(1)).
On a Thursday evening during the same year, the Offender and EF returned home from shopping. The Offender and EF commenced drinking a bottle of Cougar Bourbon which they had purchased, resulting in EF passing out. The Offender left the house for a short time and the Second Complainant took herself to bed.
When the Offender returned home he placed some chocolates that he had purchased for the Second Complainant in the fridge and walked into her bedroom. The Offender laid on top of the victim in her bed. The Offender started thrusting himself against the victim in a sexual motion and said "let's make love" (Form 1 to Count 7: aggravated indecent assault, s61M(1)). The Second Complainant naively replied, "don't you need a condom?" The Offender said, "making love isn't always about sex". The victim replied, "what if mum comes in?" The Second Complainant cannot recall how this conversation finished but nothing further happened.

[11]

Offences Committed Against the First Complainant at the Third Location

Between 1 January 1998 and 31 December 1999, when the First Complainant was between 10 and 12 years of age, the victim visited the Offender at the Third Location on two separate occasions.
On the first occasion, the victim visited the Offender at an address at the Third Location. During the visit, the Offender and the First Complainant were in bushland behind the house. The Offender approached the victim, stood directly in front of her and slightly kneeled. The Offender then put his left hand inside the victim's pants, on the inside of her underwear, and used his fingers to rub the outside of the victim's vagina. As he did this, the Offender kissed the victim on the lips and thrusted his groin against her continuously (Form 1 to Count 8: aggravated indecent assault, s61M(1).
A short time later, the Offender stopped and they both walked back to the house.
Later on, the First Complainant and the Offender entered the detached shed at the rear of the property. Inside the shed the Offender removed the victim's pants and underwear and sat her up onto a forty-four-gallon drum or something similar. The Offender held the shaft of his erect penis and rubbed the tip of his penis in between the lips of the victim's vagina. In doing this, the Offender rubbed his erect penis across the victim's clitoris and across the opening of her vaginal canal, thereby partially penetrating the victim's vagina. This continued for a period of time (Count 8: sexual intercourse with person 10 & <16 - under authority, s66C(2)).
Following this, the Offender kissed the First Complainant's vagina, separated the lips of her vagina with his fingers and used his tongue to lick in between the lips of the victim's vagina. This continued for about five minutes (Form 1 to Count 9: sexual intercourse with person 10 & <16-under authority, s66C(2)).
The Offender then picked the First Complainant up off the drum and stood her on the ground. The victim put her pants and underwear back on. The Offender began thrusting his erect penis against her stomach on the outside of her clothing before he pushed against the top of her head with his hand. The Offender then said "suck my dick." The victim knelt and put his penis into her mouth. The Offender rocked back and forth causing his penis to move in and out of the victim's mouth. This continued for about ten minutes until the Offender ejaculated into a towel he had nearby (Count 9: sexual intercourse with person 10 & <16 - under authority, s66C(2)). They both left the shed together.
On the second occasion that the First Complainant visited the Offender at the Third Location, between 1 December 1998 and 31 December 1999, she was 11 or 12 years of age. The First Complainant visited the Offender sometime around Christmas when he was living in a three-bedroom flat. This flat was unique because it was two storeys, but the only rooms located downstairs were the laundry and bathroom.
One evening just before dinner, the First Complainant was downstairs finishing up having a shower when the Offender came into the bathroom and said, "Go upstairs and get dressed and get me my towel." The victim went upstairs and got dressed and collected a towel from the Offender's bedroom.
The victim went downstairs back into the bathroom where the Offender was having a shower. The victim sat down on the closed toilet seat briefly before the Offender said "Come and stand in front of the shower". The Offender opened the shower curtain and stood in front of the victim with an erect penis and said "suck it". The victim put the Offender's erect penis into her mouth and the Offender rocked back and forth, causing his penis to move in and out of the victim's mouth. This continued for five to ten minutes until the Offender ejaculated into his towel (Count 10: sexual intercourse with person 10 & <16 - under authority, s66C(2)). The victim then left the bathroom and went back upstairs.
Later that evening when the First Complainant was asleep in bed the Offender woke her, grabbed hold of her hand and walked her out into the lounge room. The Offender laid the victim down on the lounge and removed her pants and underwear. The Offender kissed her vagina before he separated the lips of her vagina with his fingers and licked in between the lips of the victim's vagina (Form 1 to Count 10: sexual intercourse with person 10 & <16 - under authority, s66C(2)). As the Offender did this, he used his hands to grope the victim's developing breasts.
After about five minutes the Offender inserted his finger into the First Complainant's vagina and moved it back and forth. He leant over and kissed the victim on her lips and neck. This continued for ten to fifteen minutes (Count 11: Sexual intercourse with person 10 & <16 - under authority, s66C(2)).
The Offender then sat the First Complainant up and sat next to her on the lounge. The Offender put her hand onto his erect penis and made the victim stoke it (Form 1 to Count 11: aggravated indecent assault; s61M(1)).
After about five minutes the Offender said "kneel in front of me and finish with your mouth". The victim knelt on the floor in front of the Offender and put his penis into her mouth. The Offender grabbed hold of the victim's head with his hands and moved her head up and down on his penis. This continued for about five minutes until the Offender ejaculated into a towel (Count 12: sexual intercourse with person 10 & <16 - under authority, s66C(2)). The victim then got up and went back to bed.

[12]

Offence Committed Against the Third Complainant

Since the Third Complainant was born, and until she was a teenager, her grandmother EF was in a relationship with the Offender. Throughout the victim's childhood she maintained a good relationship with her grandmother and the Offender, visiting regularly and staying over at their house at least once a fortnight.
Towards the end of 2010, when the victim was 11 or 12 years of age and in Year 6, her grandmother and the Offender were living in a granny flat at the Fourth Location. When the victim would stay at their house, she would sleep in a bed in a small area in the living room, separated by a curtain for privacy.
On an occasion between 1 July 2010 and 31 December 2010 the Offender was at home with the Third Complainant, whilst her grandmother was at work. At the time the victim was going to bed, the Offender was on the lounge drinking alcohol.
Soon after, the victim was asleep in bed and was awoken by the Offender unzipping the jacket that she was wearing. The Offender then ran back into the living room near the lounges. The victim went back to sleep.
Sometime later, the Third Complainant was again awoken by the Offender as he was unzipping her jacket. Again, the Offender ran back into the living room near the lounges. The victim then moved the mattress she was sleeping on into the living room and placed it down on the floor in front of the lounges hoping this would stop the Offender creeping in on her while she was sleeping.
The Third Complainant went back to sleep and woke up soon after to find her jacket unzipped. At this time, the Offender had his hand beneath the victim's clothing, touching her chest area just above her breasts (Count 13: aggravated indecent assault, s61M(2)).
The victim immediately screamed, causing the Offender to jump back and sit on the lounge. The victim moved the mattress again, this time so that it was back behind the curtain. The victim continued to cry and scream for several hours after the incident. The Offender tried to appease the victim, but she told him not to touch her or come near her.
Several days later, the Third Complainant was recalling the incident after receiving some Facebook messages from the Offender, during the course of which the Offender said words to the effect of "do you hate me … I'm sorry I just needed a look". Following this conversation, the victim's parents observed the victim crying. As the victim was again worried about the consequences of making full disclosure to her parents, she only informed them of the incidents when she observed the Offender watching her getting dressed after she had a shower at her grandmother's house. The victim did not inform her parents about any further incidents involving the Offender.

[19]

Oral Evidence

During the course of the sentence hearing, the Offender gave brief evidence as to his background, noting that he was born and raised in Sydney, and left school in order to pursue various employment positions including farm work and factory work (T10.5).
He stated that he commenced using drugs from a young age, including marijuana at age 13 or 14 (T10.43), before moving onto harder drugs at a later period: Q. Okay. You also told your psychologist that at the age of 17 that you were also using heroin? A. Yes, LSD, heroin, speed. (T11.01)
The Offender also stated that he has been an alcoholic up until the time of his incarceration, and has abused drugs "on a daily basis" since the age of 13.
Although this may indeed be the case, I see it as being of little relevance, given that the Offender admitted that his drug-use has had little impact on his decision-making: Q. So your performance of your occupation was not affected by drugs and alcohol? A. No, well I was so used to taking them I was just functioning, it became the normality. Q. So the drugs and alcohol were normal for you and didn't affect your decision making, is that correct? A. It did but it didn't. Q. Well either it did or it didn't, which is it? A. Yes, it didn't, your Honour. HIS HONOUR: It did not. So the drugs and alcohol you referred to did not affect your decision-making (T10.20).
He stated that he "never realised the damage (he) was causing", and that, at the time of offending, he was in a "dark place" due to being under the influence of drugs and alcohol. However, he also asserted that he did not want to use drug use as an excuse for the offending, and wished to accept full responsibility for his actions (T9.30).
The Offender made reference to his time spent in custody to date and the fact that, since his arrest in May 2018, he has been placed in protection due to safety concerns arising by reason of the nature of his offending. In particular, he noted that as a result of being placed in protection, he has experienced increased difficulty in obtaining medical assistance, as well as obtaining medications relevant to blood pressure, depression and anxiety (T15.18). He noted that, as a child sex offender, he is "living in danger every day", and sees "a lot of violence in here on a daily basis" (T15.4).
He made some reference to undertaking courses in order to "try and understand… how I could've caused so much damage to the people I love", however, also stated that this was only in relation to one course, as not many others were available at this time.
Generally, I accepted the evidence of the Offender. He does, however, have a distinct lack of insight. Whilst he now regrets his offending being in custody, he had the opportunity to admit his offending (at least concerning the Second Complainant) on at least 2 occasions, but chose to lie and continue offending against the First and Third Complainants.

[20]

Exhibit 1 (Jenkins Report)

The Offender also sought to rely upon a report by Peter Jenkins, consultant psychologist, dated 11 March 2020. The report was prepared following an audio-visual conference with the Offender that day, and after consideration of the Agreed Facts and criminal history. His upbringing and childhood were generally unremarkable.
The Offender was introduced to alcohol at the age of 11 and commenced smoking cannabis at 13 years old. During his teenage years he also tried drugs including LSD and cocaine. At 17 he began using heroin. From the age of 20, he gave up using cannabis and heroin but continued drinking alcohol, heavily at times.
He told Mr Jenkins he had been diagnosed with depression and anxiety but was non-compliant with medication, instead preferring to self-medicate with intravenous methadone and occasionally heroin. He has not used heroin in the past 20 years.
In relation to the subject offending, Mr Jenkins recorded that the Offender was: disgusted by his actions and is deeply remorseful for the impact on the victims. He accepts full responsibility for his behaviours but also recognises that he was not mentally functioning well due to his drug abuse and depression/anxiety.
The psychologist adopted a diagnostic tool referred to as DASS-42, comprising of a set of 3 self-report scales. That led to the diagnosis of depression in the severe clinical range, anxiety, also in the severe clinical range, and stress in the moderate clinical range.
Ordinarily, psychiatric diagnoses are made by psychiatrists, not psychologists, and by reference to DSM-5, the diagnostic manual for psychiatric disorders.
Generally, I found the report of Mr Jenkins unpersuasive. He diagnosed a Major Depressive Disorder, Generalised Anxiety Disorder, Alcohol Dependence and Psycho-Active Substance Dependence as classified by DSM-5. In making those diagnoses, Mr Jenkins failed to refer to any of the criteria for the diagnoses of those conditions. Again, without explanation, Mr Jenkins stated that those disorders "cause impairment in cognitive, emotional and behavioural domains".
Most contentiously, under the heading 'Summary and Recommendations', the psychologist expressed the opinion that the Offender was suffering from those conditions at the time of the commission of the offences. Given that the assessment by Mr Jenkins took place in March 2020 and that the Offender failed to provide any complaint contemporaneous with the offending, there is no basis for the opinion expressed by Mr Jenkins.
Counsel for the Offender was told that the Court intended to give little or no weight to the opinion of Mr Jenkins. He accepted the obvious limitations in the opinion expressed and did not press a submission that the Offender's mental health in any way contributed to the commission of the offences (T50.9).

[21]

CROWN SUBMISSIONs - MFI 1

The Crown undertook a detailed and considered analysis of the objective seriousness of the offending, referring to each of the principle charges for sentence.
In respect of Count 1, with 2 charges on a Form 1, it was submitted for the Crown that the objective seriousness was "well above the mid-range for an offence of this kind". Reasons for that submission were set out in paragraph 11 of the Crown Submissions (CS [11]).
In respect of Count 2, the Crown submitted that the objective seriousness of the offending was above the mid-range for an offence of this kind, for the following reasons set out at CS [13].
I accept those factors as being relevant to the assessment of objective seriousness in respect of this count, and will take them into account when I determine objective seriousness, below.
Counts 3 and 4 occurred in the backyard shed. It was submitted for the Crown that the offending for both Counts 3 and 4 fell well above the mid-range for offences of this kind. The Crown referred to the factors warranting this finding at CS [16].
In relation to Count 3 it was further submitted that there was a degree of physical handling by the Offender of the victim, which is relevant to the objective seriousness.
I do not accept that the physical handling involved, as described in the Agreed Facts, is such as to be material to the objective seriousness. Further, I reject the submission that there was a degree of planning involved in the offending as it did not extend beyond the Offender directing the victim to go to the shed at the rear of the house.
In respect of Count 5, being the last offence involving the First Complainant before the Offender moved, the Crown submitted that it fell at the mid-range of offences of this kind for the reasons set out at CS [24].
I accept the factors raised by the Crown as relevant to the assessment of objective seriousness, save for the question of planning. In my view, that did not extend beyond that which might be expected for offending of this type.
In respect of Count 6, which involved the Second Complainant, the Crown submitted that the objective seriousness fell at the mid-range for an offence of this kind due to the factors set out in CS [26]
I accept that all of those considerations are relevant to determining the objective gravity of the offending.
In respect of Count 7, the Crown submitted that the objective seriousness was at the mid-range, for the same reasons relied upon in respect of Count 6 (CS [29]).
In respect of Counts 8 and 9, the Crown submitted that the objective seriousness of the offending was at the mid-range, by reason of the matters set out at CS [37].
In relation to Counts 10, 11 and 12, the Crown submitted that the objective seriousness of the offending fell at the mid-range for the same reasons.
Finally, in relation to Count 13, that is, the offending against the Third Complainant, the Crown submitted that the objective gravity fell below the mid-range, given its short duration and the fact that it was opportunistic in nature.
The Crown submitted, both in writing and orally, that the discount for guilty plea ought not exceed 5% (s25D(2)(c) of the CSP Act 1999). It was submitted that there were no "new count offences" to which the Offender pleaded guilty warranting a variation in that reduction. Further, it was submitted that the Offender's plea was consistent with the offer to plead made by the Crown at the Case Conference, which offer the Offender rejected. The Crown offered to tender the case conference notes, however that did not become necessary.
When the Offender was arraigned in the District Court, he entered pleas of not guilty in relation to all charges. A trial date of 3 February 2020 was set, on which date he changed his plea to guilty.
The Crown submitted on totality, drawing the Court's attention to ZA v R [2017] NSWCCA 132, in which Johnson and Fullerton JJ summarised the principle of totality and the purpose of its application at paragraphs [70] - [71]: The totality principle requires a sentencing Court, where there is a series of offences, to review the total sentence and consider whether the aggregate is a just and appropriate measure of the criminality involved: Postiglione v The Queen at 307-8, 313-4. It has been said that the sentencing Judge should "take a last look at the total just to see whether it looks wrong", with this involving consideration of the totality of the criminal behaviour and a check as to whether the proposed sentence is appropriate for all of the offences: R v Holder, R v Johnstone at 260, Mill v The Queen at 63, Johnson v The Queen at 623-624 [18] - [21]. In this context, it has been said that the totality principle serves to ensure that an Offender is not subjected to a "crushing sentence": Postiglione v The Queen at 304-308.
Finally, the Crown submitted that the sentence should achieve the purposes of general and specific deterrence, and that the offending meets the s5 threshold.
In oral addresses on 6 May 2020, the Crown emphasised a number of those points, particularly the distinction of a complainant being under the authority and the offender breaching trust. I will give proper consideration to those matters below.

[22]

OFFENDER SUBMISSIONS - MFI 2

The submissions on behalf of the Offender were confused by the fact that the version sent to the Court and to the Crown was not the final version of the written submissions sought to be relied upon. That was remedied and MFI 2 represents the final version of the submissions. The written submissions must be read in conjunction with the oral submissions of 6 May 2020 as counsel for the Offender made a number of concessions, either discounting or not pressing a number of the written submissions. The oral submissions, with the correct written document, commenced consideration at T32.20.
Whilst counsel for the Offender acknowledged that the Early Appropriate Guilty Plea legislation applied, it was submitted that fresh offers were made at the commencement of the trial, which resulted in the pleas being made. Whilst counsel for the Offender initially contended for a discount for guilty plea between 10% and 15%, he also suggested that the discount could be "anywhere to 10%". He referred to the Court's discretion pursuant to s22 of the CSP Act and seemed to suggest that whilst the Court was bound by the early guilty plea legislation, the Court had a remaining discretion to increase the discount pursuant to s22. It was submitted that taking into account the fact that a protracted and lengthy trial was avoided is a relevant consideration to the exercise of the Court's discretion. I take that as a reference to the Court's discretion to reduce a penalty for facilitating the administration of justice.
In my opinion, that is already counted for in the guilty plea legislation, leaving a Court with no power under s22 to depart from s25D. The fact that the Offender pleaded guilty to charges on the indictment on the first day of trial, and had previously rejected an offer to the same plea renders s25D(3)(a) and (b) inapplicable, and mandates a reduction of 5% of the sentence, pursuant to subsection (c).
As for the broader submission that there ought to be some reduction pursuant to s22A, I accept the submission for the Crown that the section is not relevantly engaged because there were no pre-trial disclosures which resulted in the facilitation of the administration of justice warranting such a discount (T55.15).
The submissions moved to the question of contrition, and it was submitted that the Offender had expressed contrition in the intercepted telephone call, which he had with the First Complainant on 15 May 2018. When asked to admit that he molested her, he stated "yes, like what I said, I get flashbacks with no details. It's more of a thought that you know, that I done it, and it makes me fucking ill". It was submitted what was said in the intercepted telephone call, together with the evidence from the Offender in Court and what he said to Mr Jenkins, would found a proper basis for making a finding of remorse. I will consider this in the context of mitigating factors below. One matter which does speak against remorse and contrition is that, when confronted by the Second Complainant's allegations in 1995 and again in 1997, the allegations were denied. That does not exclude the making of a positive finding of remorse today.
Ultimately, the submission that fresh offers were made resulting in the guilty pleas was not pressed (T38.9).
In what I consider to be submissions relating to totality, it was put on behalf of the Offender that the Court ought to show him mercy in sentencing. Acknowledging the he will receive a lengthy jail term, it was submitted that he ought to be released at a time when he can still make a worthwhile contribution to his life.
In my opinion, properly applying the principles of totality will ensure that this sentiment is reflected in the sentence.
Counsel for the Offender then made submissions about the prior criminal history of his client. He was informed that whilst the Court did not intend to take his criminal antecedents into account as an aggravating factor, it is a matter which would disentitle him to any leniency which may otherwise be afforded to somebody of good character. That was accepted (T40.14).
Counsel for the Offender was then asked to address the question of objective seriousness. He approached that in a global way rather than with reference to individual counts. He submitted that "notwithstanding the facts of the offending, the objective gravity falls below midrange" (emphasis added). It was pointed out to counsel for the Offender that it was the facts of the offending which informed the objective seriousness of the Offender's conduct. This led counsel for the Offender to submit that "they fall within the mid-range, not all of them" (T40.25). Ultimately, it was submitted on behalf of the Offender that "this offending behaviour is placed within the lower-mid to high range". Precisely what was meant by that is unclear. I interpret the submission as being that the objective seriousness of the offending fell either at the mid-range or the low range.
Submissions were then advanced on behalf of the Offender relating to the complainants being under his authority, vulnerable and the issue of trust. Initially, counsel for the Offender submitted that being under authority was "already a statutory element of all counts". When it was pointed out that only Counts 6, 7, 8, 9, 10, 11 and 12 included, as an element of the offence, the fact that the victim was under the authority of the Offender, counsel for the Offender withdrew the submission.
It was then submitted on behalf of the Offender that: Given the nature of the offences, it is submitted that 'position of trust', and 'vulnerability' are inherent features of all offences for which the Offender has been convicted. The policy underlying the offences is such that these factors have been built in to the penalties and the SNPP's (where applicable). To attribute significance to these factors would effectively constitute a double counting error.
I reject that submission. Plainly, in relation to those offences for which 'under authority' is an element of the offence, it would be inappropriate to have regard to abuse of authority as an aggravating factor. A distinction must be drawn between 'under authority' and 'the abuse of trust', notwithstanding the fact that both concepts are embodied in s21A(2)(k). I will return to this below.
In terms of any statutory mitigating factors, it was submitted on behalf of the Offender that the Court should have regard to the guilty plea, and also to the Offender's health (T42.37-41). The submission in relation to health being a mitigating factor was not pressed.
It was, however, submitted that his client was unlikely to reoffend, and that ought to give rise to a statutory mitigating factor. For reasons which I will make apparent below, I also reject that submission.
Furthermore, in the context of discussing mitigating factors, counsel for the Offender referred to the fact that his client was on various drugs at the time of offending and that I ought to take that into consideration in terms of his offending behaviour (T44.35-43). Again, for reasons which I will provide below, I reject the submission that any leniency should be shown for the fact that the Offender may have been affected by drugs at the time of his offending.
Counsel for the Offender also referred to mental illness, based upon the opinion expressed by Mr Jenkins.
Counsel for the Offender was challenged as to the expertise of the psychologist to provide psychiatric diagnoses, and also as to the relevance of diagnoses made in 2020 to his client's conduct at much earlier times. It was conceded that there was no evidence as to the Offender's psychological condition as at the time of the offending. Due to these deficiencies in the opinion of Mr Evans, counsel for the Offender was informed that it was my intention to give little or no weight to his report or, more specifically, to his opinion. That was not disputed by counsel for the Offender (T48.26).
In further consideration of mitigating factors, it was submitted on behalf of the Offender that he is unlikely to reoffend. When asked what evidence was relied upon in support of that submission, counsel pointed to the fact that in the period of 8 years from 2010 through to his arrest in 2018 there is no record of any offending. For reasons which I will explain below, I do not accept the submission that it is unlikely that the Offender will re-offend.
Submissions were then made about remorse. Counsel for the Offender was informed that I was not satisfied that the statutory requirements for a positive finding of remorse, but that I was persuaded that he had expressed sorrow and regret for his offending. This will be dealt with specifically below.
The Offender's submissions then turned to the question of delay as being a mitigating factor. It was submitted that there has been a considerable delay in bringing about a final resolution of the matter. The offending behaviour commenced in 1991 when the Offender was 24 or 25 years of age and stopped in 2010 when he was 43 years of age. He was not charged until 17 May 2018. It was submitted for the Offender that the delay was not brought about by the Offender, and that it gave rise to considerations of fairness, especially if the delay had been attributable to the prosecution. Further, it was submitted that during the period of delay the Offender may have rehabilitated, developed a genuine sense of remorse and repentance.
The submission concerning delay in this case is weakened by the fact that complaints were made in 1995 and 1997. The complaint made by the Second Complainant in 1995 was dismissed by her mother after the Offender denied committing the offence. It would appear that the complaint to police in 1997 was abandoned, again as the mother was not supportive of the complainant at the time the complaint was made. Had the Offender told the truth and admitted to the offending, then he would have been charged and dealt with in 1995, 1997 or not long thereafter, during which time the further offending would not have been committed.
In my opinion, the Offender ought not be shown leniency by reason of the fact that he lied about the offending when confronted 25 years ago.
Counsel for the Offender addressed the Court about hardship to the Offender on the basis that he would be kept in protective custody and also as a result of segregation being enforced to minimise the risk of infection by COVID-19. Protective custody is available to child sex offenders in order to provide them with safety and protection against being assaulted or worse. This child sex offender is in no different position to any other child sex offender when it comes to those arrangements and facilities. As for the COVID-19 submission, no evidence was adduced which would permit a positive finding about hardship to this offender.
The next submission advanced on behalf of the Offender concerned his age and the effect of the sentence upon him. I consider his age to be a relevant consideration in imposing a lengthy sentence, and this is a matter to which I will return below.
Finally, special circumstances were contended for on the basis of the COVID-19 pandemic. Again, there is no evidence which would support any finding that this Offender will be impacted by COVID-19 such that it ought to give rise to a finding of special circumstances altering the statutory ratio of parole to non-parole.

[28]

S21A(2)(k) - Abuse of Position of Trust or Authority

It was submitted on behalf of the Offender that: Positions of trust and vulnerability (were) inherent features of all offences for which the Offender has been convicted. The policy underlying the offences is such that these factors have been 'built in' to the penalties and the SNPP's (where applicable). To attribute significance to these factors on sentence would effectively constitute a double counting error (MFI 2 para 17).
I reject that submission.
The trust between a child and a parent or grand-parent figure is not something that arises by reason of any act or circumstance of the child's creating. The child has no say into whose custody or trust they are placed. As for the it is a consequence of birth. Children are vulnerable. The obligation upon a parent to protect and nurture the child is paramount. Sexual abuse of a child, especially by a parent or parental figure, is abhorrent. The offending parent takes advantage of the presence, availability and vulnerability of the child to satisfy his perverted sexual desires.
A clear distinction exists between trust and authority.
The victim being under the authority of the Offender is an element of the offence charged Counts 6, 8, 9, 10, 11, 12 and 13. To find that the offending is statutorily aggravated by an abuse of authority would be to double count that element of the offence. In respect of those counts referred to, I decline to make that finding.
In relation to Counts 1, 2, 3, 4, 5 and 7, I find that the offending was aggravated by reason of the fact that the offending involved an abuse of a position of authority in relation to the victims, being the authority held by a father or fatherly figure.
Even though the abuse of a position of trust is included in the same subsection as the abuse of a position of authority, it gives rise to different considerations. I reject the submission advanced on behalf of the Offender that the abuse of the position of trust is an inherent feature of the offence.
In the matter of MRW v R [2011] NSWCCA 260, Bathurst CJ stated at [77]: There can be little doubt, in my opinion, that the matters referred to in s21A(2)(k), namely abuse of trust and abuse of authority, are distinct concepts, although commonly arising out of the same facts.
In the matter of MRW, 'under authority' was an element of the offence leading his Honour to state: As only the latter of the two concepts formed an element of the offence, in my opinion, it was open to the trial judge to take the former factor into account as an aggravating feature on sentencing.
The Chief Justice warned, however, at [78]: However, when the circumstances giving rise to abuse of trust or abuse of authority arise from the same facts it would seem to me that a sentencing judge should be cautious in giving undue weight to abuse of a position of trust where abuse of authority is an aggravating factor. In circumstances where a sentencing Judge does so, error may result with the prospect of intervention by this Court. However the Judge committed no error in taking abuse of a position of trust into account in sentencing the appellant.
More recently, in the similarly named matter of WM v R [2020] NSWCCA 96, Bellew J, with whom Johnson and Adamson JJ agreed, revisited the question of the overlap between trust and authority at [40]. His Honour stated: Moreover, in my view, it remained open to the sentencing Judge to take the applicant's breach of trust into account as an aggravating factor. His determination that it should be taken into account as part of the overall mix of circumstances was an approach which was particularly generous to the applicant. Finally, there is nothing whatsoever to suggest that the sentencing Judge gave undue weight to the applicant's breach of trust. He regarded it as "significant". That was an apt description, in circumstances where that breach, in one sense, facilitated the offending.
Whilst I acknowledge the fact that the abuse of authority and abuse of trust involve similar considerations arising out of the same factual circumstances, I find that the breach of trust in the circumstances of this offending in relation to all 3 complainants is such as to significantly aggravate the offending.

[49]

delay

Counsel for the Offender complains of delay between 2010, when the offending stopped, and May 2018, when his client was charged. Further, counsel for the Offender pointed to the delay between May 2018 when the Third Complainant first approached police and July 2018, when the police again attended upon her and obtained a statement. In respect of that period of just 2 months, I consider any delay to be immaterial.
Counsel for the Offender suggested that delay is relevant in a number of respects. First, that, had he been charged at an earlier time, he would have received a more lenient sentence. Although this submission was not made, I assume the fact that s25AA has been introduced since 2010 would make good that submission. Second, counsel for the Offender points to the effects of delay as including the endangerment of successful rehabilitation. This submission is at odds with the contention also advanced by the Offender that he voluntarily ceased offending in 2010 and was rehabilitated.
The question of delay was raised with counsel for the Offender during the course of oral addresses. At T51, it was suggested that the Offender was not entirely blameless in the delay of being charged and prosecuted. In 1995, the Second Complainant wrote a letter to her mother, the Offender's then-partner, complaining of the abuse. When confronted about the matter, the Offender lied and denied that it was true.
In 1997, the Second Complainant was living with a family friend and told her about the sexual assault. The friend took the Second Complainant to the police station where the matter was reported. According to the Agreed Facts, an investigation commenced, but police did not pursue the matter as the mother of the Second Complainant (the Offender's partner) was not supportive of the complainant at that time.
I do not accept that delay is a matter which weighs heavily in this sentencing exercise, having regard to the following considerations: 1. the delay was for a period of 8 years, considerably less than the offending which spanned some 19 years, from 1991 through to the end of 2010; 2. to conclude that the Offender would have received as lesser sentence if sentenced in 2010 or thereabouts involves a high degree of speculation; 3. there is no evidence of delay impacting upon the Offender's rehabilitation, as submitted by his counsel (MFI 2 page 8); 4. there is no evidence that the Offender has been prejudiced by the delay; 5. there is no evidence that the Offender has been left in a state of "uncertain suspense" as a result of the delay; 6. the delay was not caused by a failure on the part of the authorities to investigate the matter and charge the Offender; and 7. the Offender has enjoyed being at liberty during the period of delay.
I am mindful of the decision in R v Cattell [2019] NSWCCA 297, where Price J considered the question of delay. After referring to earlier decisions in the matters of R v Todd [1982] NSWLR 517, Mill v The Queen [1988] HCA 70 and Hornhardt v The Queen [2017] NSWCCA 186, Price J found that the sentencing Judge in Cattell had overlooked the reasons for the delay in the complaint, and the benefits the respondent enjoyed in escaping punishment for the serious crimes he had committed many years before. After considering the wide discretion open to a sentencing judge and the types of considerations that may arise by reason of delay, such as rehabilitation, Price J stated: The purposes of sentencing which include general deterrence, the recognition of serious harm to each of the victims, the accountability of the respondent, the denunciation of his conduct and adequate punishment for his crime could not be regarded as being subordinate to delay and rehabilitation.
In considering these factors, I am not persuaded that the delay which exists here entitles the Offender to any degree of leniency in sentence.

[50]

purposes for sentence - s3A

The purposes for which a Court may impose a sentence on an offender are as follows: 1. to ensure that the offender is adequately punished for the offence. This incorporates the concept of proportionality. That is, to ensure that any sentence imposed reflects the criminality of the offending; 2. to prevent crime by deterring the offender and other persons from committing similar offences. In view of my finding about remorse and the absence of any offending between 2010 and 2018, I consider the need for specific deterrence to be lessened. However, the need for general deterrence of offences of this types looms large; 3. to protect the community from the offender. I was unable to reach any concluded view as to the risk of reoffending or the prospects of successful rehabilitation. In the course of the sentence hearing, the Offender freely admitted that he was a paedophile, which would suggest that, un-rehabilitated, he poses a threat to the community; 4. to promote the rehabilitation of the offender. As I observed earlier, the Offender is keen to engage in rehabilitation in order to understand why he has offended and caused harm to those closest to him; 5. to make the offender accountable for his actions; 6. to denounce the conduct of the offender. This is an important purpose for sentencing in matters such as this. The sexual abuse of a child by an adult is reprehensible. The sexual abuse of a child by a biological parent or parent by virtue of relation must also be forcefully denounced; 7. to recognise the harm done to the victims of a crime and the community. There is no doubt that all three victims of the crimes of this offender suffered greatly from mental harm as a consequence of the offending. This sentence will endeavour to recognise the harm done to those three people.
In having regard to the purposes for sentencing in s3A, I am mindful of the fact that those purposes are constrained by other sentencing principles, including the principles of proportionality and totality: R v MK [2006] 164 A Crim Reports 481.

[53]

Indicative sentences Statutory Provision - Indicative Sentence Indicative SNPP Count Description of Offence Maximum Penalty (after deduction of 5% for plea) (if applicable) SNPP 1* Sexual intercourse with a person under the age of 10 years (First Complainant) S66A Crimes Act 1900 9 years 6 months Not applicable With a Form 1 attaching Maximum penalty 20 years imprisonment 2* Sexual intercourse with a person under the age of 10 years (First Complainant) S66A Crimes Act 1900 7 years 7 months Not applicable With a Form 1 attaching Maximum penalty 20 years imprisonment 3 Sexual intercourse with a person under the age of 10 years (First Complainant) S66A Crimes Act 1900 9 years 6 months Not applicable Maximum penalty 20 years imprisonment 4 Sexual intercourse with a person under the age of 10 years (First Complainant) S66A Crimes Act 1900 7 years 7 months Not applicable Maximum penalty 20 years imprisonment 5 Sexual intercourse with a person under the age of 10 years (First Complainant) S66A Crimes Act 1900 11 years 4 months Not applicable Maximum penalty 20 years imprisonment 6* Sexual intercourse with a person 10 and under 16 years - under authority (Second Complainant) S66C(2) Crimes Act 1900 4 years 9 months Not applicable With a Form 1 attaching Maximum penalty 10 years imprisonment 7* Aggravated indecent assault - under age of 16 years (Second Complainant) S61M(1) Crimes Act 1900 1 year 10 months Not applicable With a Form 1 attaching Maximum penalty 7 years imprisonment 8* Sexual intercourse with a person 10 and under 16 years - under authority (First Complainant) S66C(2) Crimes Act 1900 5 years 8 months Not applicable With a Form 1 attaching Maximum penalty 10 years imprisonment 9* Sexual intercourse with a person 10 and under 16 years - under authority (First Complainant) S66C(2) Crimes Act 1900 3 years 9 months Not applicable With a Form 1 attaching Maximum penalty 10 years imprisonment 10* Sexual intercourse with a person 10 and under 16 years - under authority (First Complainant) S66C(2) Crimes Act 1900 4 years 9 months Not applicable With a Form 1 attaching Maximum penalty 10 years imprisonment 11* Sexual intercourse with a person 10 and under 16 years - under authority (First Complainant) S66C(2) Crimes Act 1900 4 years 9 months Not applicable With a Form 1 attaching Maximum penalty 10 years imprisonment 12 Sexual intercourse with a person 10 and under 16 years - under authority (First Complainant) S66C(2) Crimes Act 1900 4 years 9 months Not applicable Maximum penalty 10 years imprisonment 13* Indecent assault person under 16 years (DV) (Third Complainant) S61M(2) Crimes Act 1900 1 year 10 months 1 year 3 months With a Form 1 attaching Maximum penalty 10 years imprisonment

R v BR

At a glance

Court

Decision date

Source

Judgment (63 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (10)

Cited By (1)