R v Cannon

District Court of NSW|2020-09-23

INTRODUCTION

Matthew David Cannon appeared for trial in the District Court of New South Wales Sydney charged with 16 offences of sexual assault arising from 14 allegations of misconduct said to have occurred on six occasions between 1 January 2017 and 23 January 2018.
On 18 June 2020, after the accused was arraigned and after the determination of preliminary questions, the accused was re-arraigned and the jury selected and the trial commenced. There were, in fact, two trials commenced with a second jury required because of a disruption to the first trial.

THE OFFENCES

The offences charged in counts 1, 2, 3 and 4 are: "Between 1 January 2017 and 30 June 2017, at Galston in the State of New South Wales, [the offender] did assault EW, a person then under the age of 16 years, namely 13, and at the time of such assault did commit an act of indecency on the said EW".
The offence is contrary to s 61M(2) Crimes Act 1900.
Counts 5 and 6 alleged an offence in each case also contrary to s 61M(2) Crimes Act 1900. The particulars of these offences are: "Between 1 January 2017 and 31 December 2017, at Glenorie, in the State of New South Wales, [the offender] did assault EW, a person then under the age of 16 years, namely 13 or 14 years of age, and at the time of such assault did commit an act of indecency on the said EW".

THE PROCEEDINGS

On 22 July 2020 the jury returned with verdicts of guilty to counts 1, 2, 3, 4, 5 and 6, not guilty to count 7, guilty to count 8 charged in the alternative to count 7, guilty to counts 9, 10, 11, 12 and 13. There was no verdict required for count 14 charged in the alternative to count 13. The accused was found guilty of counts 15 and 16.
The proceedings were adjourned to the determination of sentence, to commence on 18 September 2020. A Sentence Assessment Report was ordered and the accused, now the offender, was detained in custody upon the Crown's application.

MAXIMUM PENALTIES

The offences contrary to s 61M(2) Crimes Act 1900 have a maximum penalty of ten year's imprisonment with a standard non-parole period of eight years, specified for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999. The offence of attempted sexual intercourse contrary to s 66D Crimes Act 1900 has a maximum penalty of imprisonment for ten years, but there is no standard non-parole period specified for that offence.

PRE-SENTENCE CUSTODY

The offender has been in custody in two separate periods for these offences, the first from 7 December 2018 until 9 February 2020 when he was granted bail, and then from the verdicts of guilty on 22 July 2020 until today. The period of time to be brought to account is 497 days as at 18 September 2020, with the additional time since commencement of sentencing proceedings until today.
There has been a further delay until the proceedings could be resolved finally on this occasion.
The aggregate sentence that I impose shall commence on 10 May 2019, bringing into account the past custodial period.
I have also brought to account in the assessment of the indicative sentences without specification of a period of time the bail conditions to which the offender has been subject in those periods when he was at large. These bail conditions have been: 1. He must not have any contact directly or indirectly with the complainant, including in person, through another person, by telephone, SMS, Facebook or any other form of electronic contact. 2. He must not have any contact directly or indirectly "except through his lawyers" with any person who the prosecutor has told him is a prosecution witness or could be a prosecution witness. 3. He must not have any contact with his children LJC and CJC other than in the direct physical presence of Alex Urry and/or either both of her parents, whose names are specified, and any telephone, written or electronic contact is prohibited. 4. Other than in accordance with that condition he must never, at any location, be in the direct company of any person under the age of 18 years. 5. The applicant was granted conditional bail until his next court appearance on 1 June 2020 at the Downing Centre District Court at Sydney. He was to acknowledge his obligation to comply with bail conditions when free on bail. 6. He was to appear on 1 July 2020 at the Downing Centre District Court and any other time and place as required. 7. He was not to be released except into the custody of a Mr H, his de facto parents-in-law or his de facto wife. 8. He was required to give his passport to the Justice who granted this bail. 9. He was to promise in writing that he had no passport and that he would not make any application for a passport. 10. There were further obligations with regard to s 29 Bail Act 2013 and s 26 Bail Act 2013, and I understand him to have been subject to a condition that one or more acceptable persons would enter into an agreement under which he or she would agree to forfeit $20,000 if the offender failed to appear under the Court's bail conditions. 11. He was to provide any mobile phone number to which he had access to the officer in charge of the matter within 24 hours of his release. 12. In the event that the offender breached any of the conditions of his bail it was immediately revoked and he could immediately be re-arrested by a police officer.
The bail conditions thus had the effect of denying the offender the opportunity to cohabit where his children were living and by necessary implication that prevented him from being able to reside with his de facto partner.
The Crown invited my attention to a decision in the Court of Criminal Appeal of Hoskins v R [2016] NSWCCA 157, where an application for leave to appeal from sentence was advanced upon grounds which included that the sentencing judge erred when he allowed only 60 days reduction in a sentence when he had been subject to bail conditions for a period of 229 days. It was argued in that case that he was subject to onerous bail conditions and the entire 229 days should have been brought to account as past deprivation of liberty. The grant of bail in that case was for the reason that because of health difficulties the applicant could not have available appropriate treatment as a remand prisoner. I would quote from the next part of this judgement para [35]: "35. The bail conditions imposed upon the applicant included a residential condition, a daily reporting condition, a prohibition on contact with both Crown witnesses and living with the co-accused, a condition requiring the applicant to pursue employment, a curfew condition requiring him to be at his residence between 7pm and 7am each day, and a condition requiring him to be present himself at his front door at the request of a police officer, for the purpose of checking his compliance with the curfew. 36. The fact that an offender was subject to strict conditions of bail during the period awaiting trial or sentence is a matter that may be taken into account by a sentencing judge, but there is no obligation to do so. Much will depend upon the facts of a particular case. Certainly, there is no principle that dictates a reduction in sentence as a direct equivalent of a period of time spent subject to strict conditions of bail. 37. It is a matter for the sentencing judge to assess the facts of the particular case and to determine whether bail conditions to which an offender was subject amount to quasi-custody: R v Cartwright (1989) 17 NSWLR 243 at 258, R v Webb [2004] NSWCCA 330 at 1838. The bail conditions imposed upon the applicant were strict, but there is a real factual issue as to whether an overnight curfew, and, perhaps additionally, a daily reporting condition, are so restrictive as to amount to quasi-custody. Here, although it was by no means mandatory for him to do so, the sentencing judge specifically took into account the curfew and reporting conditions to which the applicant was subject, in the exercise of his discretion, to reduce the sentence which would otherwise have been imposed by 60 days... There was no basis for an equivalent allowance of 229 days reduction in sentence to reflect 229 days of restrictive liberty on bail. Time spent by an offender residing in his or her own home in the community prior to trial or sentence cannot be directly equated to time spent in the much harsher environment of a prison. 40. We do not regard the 60 day reduction of sentence allowed to the applicant as capable of demonstrating error".
The judgement from which I have quoted was the judgement of the Court. It is always a matter of judgement in the exercise of discretion when bringing into account bail conditions to which an offender was subject, and in some instances it is appropriate, I would accept, to allow a specified period of time as quasi-custody. But I note that in this case the obligations upon the offender did not extend, according to the document tendered to me marked exhibit 9, to restrictions appropriate to the circumstances of the case that was before the Court, save and except for the limitations upon the offender having access to his children without restriction and the need to make alternative arrangements for accommodation other than in his home. The obligation that he surrender a passport and not apply for another, that an acceptable person agree to forfeit a sum of money should he fail to comply and the obligation, that he not make any contact with the proposed witnesses, are not of such magnitude, in my view, that would warrant a reduction by a specific period in the sentence which he is to suffer. However, in the synthesis of objective and subjective material that I must undertake in this sentencing exercise I bring to account that those limitations involve a measure of punishment that he has already been required to suffer up until the point of sentence, and thus that information is one of the factors in the mitigating circumstances synthesised and leading to the indicative sentences which I shall in due course announce.

THE STANDARD NON-PAROLE PERIODS

The standard non-parole periods which apply to most of the offences upon which sentence is to be determined have relevance. The provisions introducing standard non-parole periods are set forth in Part 4 Division 1A, Crimes (Sentencing Procedure) Act 1999, amended after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39.
Section 54A(1) provides that the standard non-parole period for an offence is that which is included in the table to the provisions.
Section 54A(2) provides that the standard non-parole period represents the non-parole period for an offence in the table, taking into account only the objective factors effecting the relative seriousness of the offence, that falls within the middle of the range of objective seriousness.
Section 54B(2) provides that the standard non-parole period is a matter to be taken into account when determining an appropriate sentence without limiting the matters that are otherwise required or permitted to be taken into account.
Section 54B(3) requires that the Court record its reasons for setting a non-parole period that is longer or shorter, identifying each factor taken into account.
The objective gravity of these offences will be assessed upon consideration of the objective factors effecting the relative seriousness of the offence in each case without reference to matters personal to the offender or class of offenders, but wholly by reference to the nature of the offending, bringing into account if they are relevant, factors provided in s 21A(2) of the Act, except where those elements are essential or integral characteristics of the offence.
In Tepania v The Queen [2018] NSWCCA 247 Johnson J, at para [110], discussed these provisions, including s 54B(6) which provides that the abstract concept of a standard non-parole period assessed in accordance with these provisions does not require the Court to identify the extent to which the seriousness of the offence in question differs from the abstract, notional or theoretical offence referred to in s 54A(2).
At para [112] his Honour wrote: "In sentencing for an offence "whether or not a standard non‑parole period offence" is, a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account "unless excluded by statute". Factors such as motive, provocation or non-exculpatory duress may be taken into in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including "if it be the case" a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: ... Motive for the commission of an offence is an important factor on sentence:.."
His Honour discussed the concept of moral culpability and the flexibility with which it is used in the general law of sentencing and noted that a mental abnormality might diminish moral culpability and that an antecedent criminal history might illuminate moral culpability. His Honour noted that limited moral culpability might mean that retribution and denunciation did not require significant emphasis, and that circumstances of an offender affected by an environment in which the abuse of alcohol is common must be taken into account in assessing the offender's personal moral culpability balanced with the seriousness of the offending.
In this case I have the content of psychological assessment report which was supplemented by evidence called from the psychologist who submitted to cross-examination. The report and the evidence given by the psychologist, although it depends entirely upon information given by the offender and his partner, do in my view illuminate a personality that explains the misconduct of which the offender has been found guilty. There is no mental illness or psychological condition in my assessment that would reduce his moral culpability in these various crimes. He has not had a background in his formative years which might explain his misconduct or his general attitudes.
Although applying these principles one might assess objective gravity in a given case to be at the middle range it does not follow that the standard non‑parole period will then apply or that the overall sentence for a particular offence would fall at the halfway point for a maximum penalty, for the reason that the ultimate sentence and non-parole period for such an offence depends upon the synthesis of objective and subjective matters relevant to the offence and the offender, including those topics to which Johnson J referred in his judgement, which, in some instances might be seen to be more subjective than objective, but so connected to the commission of the offence that they should be brought to account in the assessment of seriousness.
The fixing of the non-parole period is but part of the task whereby the court determines what is the appropriate sentence, regardless of whether guilt is admitted or established after trial and regardless of whether the offence falls within the low, middle or high range of objective seriousness for such offences. The court must not embark upon an arithmetical or staged or due process of reasoning when assessing appropriate sentence, but must identify all relevant matters, bearing upon the question of the appropriate sentence and the process of intuitive synthesis to which I have referred, discussed, for example, by McHugh J in Markarian v R [2005] HCA 25. In the determination of sentence for an offence for which there is specified a standard non-parole period, it and the maximum penalty a legislative guidepost for the sentencing court, along with other established sentencing practices and by reference to matters identified where relevant in s 3A, 21A and 22 of the Act.
I shall consider the objective seriousness of each of the offences in the course of a rehearsal of the facts upon which sentence is to be imposed. But I can announce at this point that I am of the view that for each of these offences the objective seriousness should be assessed at the low mid‑range. Precisely where on the scale is always a matter of judgement, but in my assessment each of the episodes of misconduct falls somewhere between the low range and mid-range, perhaps a little more than halfway along toward the mid-range of objective seriousness.

VICTIM IMPACT STATEMENT

A Victim Impact Statement is provided, describing the consequences of the offender's misbehaviour, whereby the Court has been given some insight into the magnitude of the impact of his offences.
The victim writes of her age at 16 years at the time of the preparation of this document. She records herself as a victim of prolonged and persistent sexual assault at the hands of a person whom she believed was a close friend, whom she thought was better, and whom she thought she could trust.
From March 2017 until July 2018 she was sexually assaulted several times a week. She writes that the offender engaged in a variety of actions, such as name calling, inappropriate touching and grabbing, and sexually based actions which ultimately led to what she reported. It has impacted upon many different aspects of her life and she continues to discover all the ways the events have hurt her and ruined what would have been otherwise been a normal childhood.
She represents that she has lost the ability to trust people easily. She represents that trust is a very hard thing for her and often people make her feel awkward and uncomfortable for no particular reason. She finds social interactions normally to be confronting, and her emotions are different, especially when it comes to empathy and love. The offender told her that he loves her and she wonders whether these were true words or mere blank words for the purpose of her exploitation. She cannot cope with any form of public affection, either in a romantic or platonic sense.
Throughout the events and the process she represents that she regularly became overwhelmed by her anxiety in almost every situation. She was unable to do simple tasks that others of her age could handle easily. She could not go out alone. She can do almost nothing alone. She struggles to ask for help, both in school and the general community. Her anxiety, most of the time, she finds crippling. Handling school assignments can make her spiral into a state of panic where she is not able to function properly. She has lost all confidence in herself, in her body and her person inside. She experiences self-hatred. She has what she describes unreasonable fears preventing her from doing regular tasks. She has developed a way of blocking out emotions. She finds there are constant reminders of what occurred, and she suffers flashbacks of parts of an episode in an event becoming clear in her mind. She is unable to do anything to prevent or stop them.
She finds embarrassment in the thought of speaking to others about what has happened, because of the fear she will be judged, and that his side will be taken and that she would bear the blame. She records that some people already know and have spoken to her saying that she has lied, and that such a person, speaking of the offender, would never act in that way. She has been accused of making up the allegations in a desperate act of attention seeking. This has prompted a sense of being judged, having a sense of guilt, and limiting her ability to speak to others about what she has suffered.
I will quote the next paragraph. "My family and I have suffered so much. Our friends, our community and trust. Family friends we have known from a young age avoid us or pretend we don't exist when they pass us on the street. I feel that I have to live there with not only what happened, but suffer with further loss. I had to keep the secret to keep everything and one together, and I failed. Some of those closest to me are out of the picture, and I carry the guilt of putting my family in that position along with Matt's family quite heavily. I destroyed his family, tore them apart, put this title on his shoulders, made them suffer. I miss his family more than I can possibly express and feel guilty for all I have done using simply a sentence. I feel guilty and blame myself almost entirely for what has occurred. That this was my fault. I carry guilt the most, but all these negative emotions don't leave me. They are trapped, I am trapped, I forgive him, but I never stop hurting, I will never forget".
I shall make reference to that material with regard to part of the evidence that is before from the trial later in this judgement.
I have taken the statement into account, but I make it clear that I have not done so to aggravate the offender's culpability or the sentence which I will indicate is appropriate for each of the offences, but as is appropriate, in my view, to mark the impact of this behaviour upon the victim. I view the presentation of the statement as a compelling reminder of what follows for a victim after such misconduct to which, as in this case, she was persistently subject.
I note that there is no medical evidence for the victim against which to assess this material, however the outcomes for her as described, are as one might expect. Although no doubt significant for her and upon the learning that has been derived in other contexts in the recent investigation by a Royal Commission, they are likely to remain with her for the rest of her life. But the extent of her description of the emotional impact does not, upon my assessment of the material, allow me to find that the sequela of this misconduct extends to substantial psychological harm.

PRIOR GOOD CHARACTER

It is noteworthy that s 21A(5A) provides the following: "In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence."
I pause to note that I do not find that the prior good character that the offender has to draw upon was a factor that enabled him in the commission of the offence in each instance, although it must be observed that in the circumstances in which these offences occurred he was extended a significant measure of trust, particularly by the victim's mother, which, as events progressed and before the matter was given into the hands of the police she sought to confront with a direct instruction to the offender to desist in his persistent efforts to be in contact with the victim.

SENTENCING PATTERNS

Section 25AA(1) Crimes (Sentencing Procedure) Act 1999 provides: "(1) A court must sentence an offender for a child sexual offence in accordance with the sentencing patterns and practices at the time of sentencing, not at the time of the offence. (2) However, the standard non-parole period for a child sexual offence is the standard non-parole period "if any" that applied at the time of the offence, not at the time of sentencing. (3) When sentencing an offender for a child sexual offence, a court must have regard to the trauma of sexual abuse on children as it stood at the time of the sentencing "which may include recent psychological research or the common experience of courts"".
The offences charged in this instance contrary to s 61M, since repealed, were set forth in sub division 4 of Division 10 Crimes Act 1900. Section 66D appears in sub division 5 in Division 10 of the Act and thus the relevance of the provision to which I have just referred, arising by force of the definition of child sexual offence in s 25AA(5): "Means that following offences regardless of when the offence occurred, but only if the person against whom the offence was committed was then under the age of 16 years - (a) an offence under a provision of Division 10, 10A, 10B, 15 or 15A of Part 3 Crimes Act 1900, (b) under a provision of that Act, set out in column 1 of Schedule 1A to that Act, (c) an offence of attempting to commit any offence referred to in para (a) or (b), (d) an offence under a previous enactment that is substantially similar to an offence referred to in paras (a) - (c)".
It follows that the Court is now by legislation given the obligation to attribute appropriate weight to the sequela from misconduct such as this offender committed, within the parameters of course of the evidence available in the case.

THE FACTS

The Court is faced with the task of determining appropriate sentences for each of the offences of which the offender was found guilty, upon findings of fact, giving consideration to the evidence, and coming to a view that is consistent with the verdicts returned by the jury. The court is to form its own view of the facts accordingly. Where there is a conflict the court is not bound to findings of fact most favourable to the offender, however the facts relevant to the nature and seriousness of the misconduct must be established to the standard beyond reasonable doubt, whereas matters in mitigation upon which the offender would rely may be proven upon the balance of probabilities.
It must be the case that the jury accepted the victim as truthful and accurate beyond reasonable doubt in respect of the conduct found in the offences of which the offender was found guilty. I believe they were correct in doing so.
It is uncontroversial that the misconduct of which the offender was found guilty evolved against the background of the relationship he and his de facto spouse of 20 years had with the victim's mother, who was estranged from the victim's father. The offender and his partner have two children. The victim lived with her mother and her younger brother. The families spent time together and the offender spent time alone with the victim in her home, in his home, and in the home of his partner's parents. The offences were found to have occurred at these various locations. The victim's mother and the offender's partner were best friends before and throughout the period in which the offending occurred.
The victim was born toward the end of 2003. The offender was born in 1978; the disparity in their ages is clear.
The Crown case at trial has been helpfully summarised in submissions in writing provided by the Crown Prosecutor. The allegations referrable to each count have also been summarised adequately for the purposes of this judgement, with reference to the questions and answers in the JIRT interview where the allegations are to be found.
It was the Crown case that the offender and his family were close and trusted friends of the victim's family. The offender had known the victim since she was a small child and held himself out as a father figure to her and her younger brother. Over the course of approximately 18 months, from January 2017 until July 2018 when the victim was 13 or 14 years of age, he offended against her on a regular basis. The Crown prosecuted upon six particular occasions on which specific acts occurred to ground the counts in the indictment, as I earlier summarised.
The Crown also relied upon context evidence to put those six occasions within the context of the regular and ongoing sexual abuse by the offender.
Counts 1 to 4, all offences contrary to s 61M(2) Crimes Act 1900, of assault upon the victim with an act of indecency arose on an occasion when the victim and her brother were at the offender's home with his children. The victim's mother had gone out with the offender's partner and he was left to care for the children.
Count 1 was committed when he and the victim were sitting on the lounge; the offender started to touch the victim on the genital area on the outside of her clothes before placing his hand inside her underwear, touching her on the outside of her vagina.
Count 2 occurred when they were still on the lounge and he took the victim's hand and placed it down his pants and onto his penis. He then directed her upon what to do. He said "I want you to do this", "Rub this harder", "Can you go faster?".
Count 3 occurred when the offender took the victim into his son's bedroom, telling her, "I can't believe I just did that, but I enjoyed it and I want more of it". He pulled the victim to him so that she was sitting on top of him facing him. He made her rub her hands behind his neck and he kissed her.
Count 4 occurred in the bedroom. He once again rubbed her genital area on the outside of her clothing before moving his inside, where he rubbed her on the outside of her vagina. They were interrupted by the offender's son who walked into the room. His son left the room. The offender said "This isn't normal but I want it to happen more often because I enjoyed it".
The description of this conduct on this occasion is found in the JIRT interview of 24 July 2018 at questions and answers 647 to 862.
Counts 5 and 6 and 8 and 9 occurred in the victim's bedroom in her home. It was the Crown case that the victim was home alone when the accused attended to change a light in her bedroom. She was laying on her bed doing homework on a laptop.
In the commission of count 5, an offence of indecent assault, contrary to s 61M(2) Crimes Act 1900, the offender told the victim to hurry up with her assignment. He took the laptop and put it on the floor. He then began to undress the victim while kissing her on the mouth and cheek.
Count 6, the offender had the victim lie down on her bed, he told her "I really do like you" and "I know this is screwed up". He undressed and lay down on top of the victim and rubbed her on the outside of her vagina.
Count 8, again contrary to s 61M(2) Crimes Act 1900, occurred when the offender separated the victim's legs. He held them gently so that she did not move. He said "I'm going to make you feel good, feel pleasurable". He then moved down to her genital area where he did "a very small kiss down there".
The verdict to count 8 was in the alternative to count 7, which was an allegation of sexual intercourse relying upon cunnilingus. The Crown accepts that the touching of the victim's vaginal area, as described, was not such as to constitute an act of cunnilingus, but amounted to an indecent assault. Count 9, contrary to s 61M(2) Crimes Act 1900, occurred when he once again laid on top of the victim, rubbing and brushing his penis against the outside of her vagina. During this incident he alternated between using his hand and his penis to rub the victim on the outside of her vagina. He also asked her if he could place his penis in her mouth and she refused. At the end of the incident he dressed and thanked her and said "Can you just kiss me before I go."
These events are described in the JIRT interview of 24 July 2018 at questions and answers 174 through to 332.
Counts 10 and 11 both contrary to s 61M(2) Crimes Act 1900 occurred when the offender took the victim on a motorcycle ride to his in-law's property at Arcadia. They were overseas at the time.
Count 10 occurred when the victim and the offender were in the house. He took her into the bedroom. She told him she had a headache from the wind on the motorcycle ride. He sat on the bed with her and they talked for a while, after which he began to undress her and himself, kissing her as he did.
Count 11 occurred when the victim said "Matt, like just really" to which he replied "Yes, just let me do it and then we can like go". He took off his underwear and lay on top of the victim, rubbing his penis against the outside of her vagina. He continued doing this for some time before standing and dressing. He then went to the bathroom while she dressed in the bedroom. She noticed an area of damp in the middle of bed that left a small mark. He returned to the bedroom and told her to tidy the rest of the room while he cleaned up the mark on the bed with a cloth. This conduct is described in the JIRT interview of 24 July 2018 at questions and answers 333 to 353.
Count 12 and 13 occurred at the offender's in-law's house. He took the victim there on a motorcycle ride. His in-laws were overseas. She was at the piano. He picked her up and carried her into the bedroom and put her on a bed. He then began to undress and kiss her. That is the conduct upon which count 12 is brought.
Count 13 occurred when he moved the victim so that part of her body was lifted off the bed. He took hold of his penis and pulled her close to him and attempted to penetrate her using his finger to "open the hole". She said "don't" and "stop" several times. He attempted to penetrate her vagina but was unsuccessful. This offence is contrary to s 66D Crimes Act 1900.
The offence in count 12 was contrary to s 61M(2) Crimes Act 1900.
The conduct as described in the JIRT interview on 24 July 2018, questions and answers 654 to 646.
Count 15 and count 16 are contrary to s 61M(2) Crimes Act 1900.
Count 15 occurred in the victim's bedroom. This was the last occasion when there was such conduct in the victim's house. She was home alone, he arrived and they had a conversation in the lounge room during which he said, "I know this is screwed up, this is weird, but I really like you...can I just do it like a goodbye one? I just want a goodbye, cause this isn't, it shouldn't happen anymore...I really want it though". Count 15 specifically occurred when he picked her up, took her into the bedroom, put her on the bed, began to undress and kiss her, saying that he really liked her, that she was looking really good. She told him to stop, but he shushed her and silenced her before eventually leaving before her mother got home. This is described in the JIRT interview on 24 July 2018 at questions and answers 93 to 173.
The next event was charged in count 16 when the offender and the victim were at the offender's home in the kid's living room. This was a few days before the victim complained to the police. The children were watching a movie, the room was dark. The victim was lying on the floor watching using a laptop. He went to her and knelt beside her and grabbed her on the outside of her clothing on the vaginal area. She moved away from him and as she did he followed her. He touched her in this way about three times very quickly on the outside of her clothes. She kept pulling his hand away until it stopped. This was described in the JIRT interview on 24 July 2018 at questions and answers 893 to 931.
The offender denies that there was any such misconduct at all. He gave evidence in the trial, but not in the proceedings for the determination of sentence, although he called evidence, to which I will come in a moment.

SERIOUSNESS OF THE OFFENCES

I have, as I commented, formed the view that these offences fall below mid-range of objective seriousness, perhaps a little above, or about a point midway between low and middle range.
It is of note that serious though these offences are there was, on the description given, a measure of restraint by the offender, but perhaps less so on the occasion when he used his fingers to apparently widen the complaint's genitalia in the commission of the offence charged in count 13 of attempted sexual intercourse by penile penetration, in which he was unsuccessful.
It does ultimately lead me to the view, and this is supported by other information, to which I shall come, that the offender was enthralled by this child.
In the trial transcript at 108 and 109 there is the following evidence, beginning at line 23 on p 108: "Q. Did you tell E and E what was happening between you and Matt, because you wanted attention? A. No. Q. Why did you tell them? A. Well, I knew - I know that they both knew him personally, so I thought that was - I mean one of the - an important reason to let them know that these things are going on and I think I just became desperate to talk to somebody about it because I hadn't talked to people in a while. I didn't have a counsellor or I didn't talk to any family members about it. So, I think I lent on them".
I pause to interpolate here that this was with regard to evidence of her disclosure to two friends, whose initials for their given names were in each case E.
The evidence continued: "Q, Staying on that topic; when you got back to the house, you say you saw Matt, correct? A. Yes".
Mr O'Donnell asked this question at 108.3: "You weren't bothered by seeing him?" And you said "I was, I just didn't want to make a big deal of it." Do you remember saying that? A. Yes. Q. What did you mean? A. I didn't want to act differently around - around it to create a scene or to show anything that would be odd, especially to E's parents. Q. Why not? A. Because I believed that it would have led them getting suspicious or figuring something out or making assumptions about something between us. Q. Why were you concerned about people finding out? A. I didn't want them to know. Q. Why? A. The way it would impact people again".
In the JIRT interview of 24 July 2018 at question 79 and following there is a description given about the general circumstances. "Q 79 Okay. And when did he assault you? A. Um, it was over the time of, so it started probably about a year, just over a year ago. Q 80 Yep? A. And it kind of was, it was really like slow and nothing, almost nothing happened and then towards the end of last year things started getting a lot more serious. Q 81 Ah hmm. A. And it only probably started dying down about a month ago". Q 82 Okay. And where did that happen? A. Usually when I was at home alone". Q 83 Ah hmm? A. Of course mum worked about, worked pretty late.
Then she went on to describe the circumstances when they were alone and specific events were dealt with.
Bearing in mind what I have quoted from the Victim Impact Statement and with regard what has been provided by Vicki Easson, the clinical psychologist, upon whose report I shall comment in due course, I find that this conduct by the offender was not a pursuit driven by lust alone, but by his misconceived emotion which he allowed to evolve leading to his pursuit of the victim for the relationship as much as the sexual activity itself. This behaviour came to an end when the victim reached a point in her maturity to recognise the wrongfulness of the conduct and the destruction it was certain to cause to the relationships within his family and beyond, in response to which she had the courage to expose this behaviour.
This is not in any way to suggest blame on the victim. She was a mere child, approaching her middle teenage years and no doubt maturing as she did so, but it remains she was a child and the offender was a mature man with a partner with children of comparable age to this victim.
I have not overlooked that he had been shown to at least have a device which had access to pornography sites, including child pornography sites, but the evidence before me is limited regarding that. I have not heard from the offender to explain sufficiently why his phone had that record. To have used a phone to access such sites as were identified raises questions in my mind, but bearing in mind the standard of proof upon these matters, and in the absence of evidence demonstrating precisely who accessed the sites and when, it is possible that someone else had access to his phone for whatever purpose the sites were accessed, for whatever duration.
It would seem to me that the balance of the evidence, including that which was given by the complainant, and what is objectively available with regard to the offender, demonstrates that this was an evolving relationship in which this child was exploited by the offender, who had the misguided view that he was entitled to the affection, both emotional and sexual that she might provide to him.
This is relevant to the assessment of whatever prospects of rehabilitation might be found. He has no demonstrated remorse or contrition, but at the same time he has no background of offending similar to that which is before this Court. This, upon the material before me, leads me to conclude that this was a focussed endeavour by him because of his feelings for this young girl, and accordingly it must be accepted, in my view, that he has some prospects of rehabilitation with proper guidance and assistance from someone qualified and independent to assess his particular needs.
I do not have any doubt that Ms Easson was doing her best to fulfil her professional responsibilities, but the proximity between her and the offender and those associated with the offender suggest to me that she is a little close to the offender and those with him and could not be truly objective in the task that she had to perform. So much was made clear in the course of the evidence she gave before me on 23 October 2020 when she acknowledged that the opinions she reached were based entirely upon what the offender had said to her, and the information given by his partner and others with whom she had some contact who would not believe the allegations that were made against him. She acknowledged that she had no information as to what precisely the complainant alleged. She did not know about the phone which recorded access to child pornography sites. She acknowledged the importance of that information in the assessment one would need to make of someone in the circumstances of the offender, the anxiety that she attributed to him arising from what he said to her were rumours that allegations such as these were being made against him that were apparently abounding. At page 13 at line 32, in the final question the Crown asked: "In light of the jury's verdict do you accept that it's a possibility that the anxiety the offender exhibited to you could be attributable to the fact that his conduct had been disclosed to the authorities?"
To which she said: "Certainly".
Thus, though I would accept he was experiencing anxiety by reason of these allegations, to attribute that anxiety to being unjustly accused must be an error.

THE OFFENDER

He was born in 1978, as I noted previously, and this year reached his 42nd birthday. He has no antecedent criminal offences and he has not been in custody for any matter other than the current prosecution in the period since he was arrested and today for those months when he was denied bail.
A Sentence Assessment Report was prepared. This represents information obtained upon an interview with the offender and contact with his partner and a friend, a psychologist, and upon access to the police facts and criminal history and Corrective Services records. There is also reference to contact with St Vincent's Health Network.
Before his incarceration he had been living with a friend at Carlingford, as a consequence of his bail conditions, to which I earlier referred.
He has been, according to this, in a relationship with his supportive partner for some 21 years. To them have been born the two children, to whom I referred earlier. He proposes to cohabit with his partner once he is eligible for parole. He has represented that she will continue to support him, and having heard from her in the course of these proceedings I accept that she is supportive and will continue to be so throughout this experience that they must suffer.
He has positive associations in the community. This report refers to self-employment as an electrician, in which he has worked for some 16 years. He will resume that occupation upon release.
The report includes the following: "Attitudes"

"Mr Cannon denied these offences and stated they were allegations made by the victim; he further explained, that he has been advised by his solicitor not to discuss his offences.
He appeared to victim blame when he claimed that the victim had tried to initiate sexual gestures towards him, prior to Mr Cannon being charged for the alleged convictions".

Thus it would appear that notwithstanding the advice given by a solicitor he chose to offer some explanation for why he was in the predicament that he was facing.
He is attributed with representations regarding the status of the victim as a family friend with whom he had a close relationship as a father figure. He referred to her having a crush upon him. According to this report: "He further claimed that the victim had a crush on him and that she had made several attempts to initiate sexual gestures towards Mr Cannon".
He represented that he had never inappropriately touched her or kissed her or performed any sexual act with her and he has no further intention of having any contact with her or her family upon release.
Since the allegation he reports suffering anxiety and depression and suicidal ideation. In light of his denial he is unable to display any insight into the misconduct. He is willing and able to undertake intervention, but the starting point in all of that is to recognise the extent of any misbehaviour upon which he engaged I would expect.
It is said that due to current circumstances (I take that to be the COVID‑19 problems) some interventions that might be available are unavailable.
He is prepared to undertake Community Service work and there has been no previous supervision by Community Corrections. He has a low to medium risk of reoffending, according to the level of Service Inventory thus revised "LSI-R" and assessed to the below average risk of reoffending, according to Static-99R performed by psychologist Mark Wright.
The outcome of this hearing must be incarceration and those questions will not arise until it becomes the responsibility of the Parole Authority to manage the offender upon his release.
I come now to the report provided for the offender by Mark Wright and countersigned by Andrew Redman. This provides detail of the assessments undertaken upon his risk of reoffending and the outcome that they produced.
He is attributed here of denying the offences and his decision regarding an appeal to be determined after sentencing. He indicated his willingness to engage in treatment, if stipulated, and he was willing to do what was required to facilitate his release from custody. If maintaining innocence he may be eligible for a program known as the Deniers Program, for men convicted of sexual offences who categorically deny the wrongdoing.
I have already referred to Vicki Easson, who provided a report that was tendered in the proceedings and she also came to give evidence before me on 23 October this year. Although sympathetic, and as I indicated earlier, as someone who perhaps does not have the appropriate objectivity for the task, I found her report helpful, because I would find upon my assessment of the offending, having considered the raft of material that is before me, it does appear to me that she might have captured his personality, which might explain why he is in court today. As I noted previously all of the information that she relied upon came from the offender and his partner and from associates of them, with whom she was acquainted, without access to the full array of material that was available to the Crown and which is now available to the Court, and thus the ultimate opinions which resonate with the suggestion that the offender might have been innocent must appropriately qualified.
The presenting concerns as noted are informative. He represents that he struggles to understand how this type of accusation could be made by the victim and her mother. He is concerned about the accusations upon the wellbeing of his own children and his partner and he wanted help in managing and understanding their reactions to him. His distress extended into tirades, panic and bewilderment which negatively impacted upon his work, marriage and his children, he had difficulty sleeping. He said his initial response to learning of rumours was one of shock and horror and he made a point of speaking of the rumours to most people in his social network, thus expanding the range of people within the community who might know of the misconduct of which he was being accused.
He could not work for a short time, but with medication he was able to return to work until he was arrested.
He was scored in the moderate to severe range on the Beck Anxiety Inventory. He described physiological symptoms of stress, including hot flushes, trembling hands, shaking and trouble breathing. He felt uptight and nervous and scared all of the time.
He described an unhappy childhood and a marriage stressed by his temperamental behaviour. It was said that he could be generous, funny, hardworking, but also angry, unreasonable, demanding and rude. His partner sought solace in the attentiveness of the victim's mother, whom she met when the children were small.
His partner spoke to the victim's mother daily about intimate details of her life with the offender. The victim's mother would be invited over to the family home to calm the offender down when he was in a rage. In a conversation in late 2019 his partner reported that by allowing the victim's mother to be the third person in the marriage she felt that she had betrayed the offender and isolated him.
He described feeling lonely in his marriage, needing attention and wanting to feel valued. The offender and his partner are not married, but they clearly are in a de facto marriage and one of some duration.
The families did everything together. Most afternoons the victim, her brother and often her mother would congregate at his home. They holidayed together. He went to the victim's house to fix things and do electrical work, because the victim's mother was single at that point, and he saw her children as part of his own family.
The offender and his partner went to couple counselling to repair their marriage. It is not described here when that occurred. It was suggested apparently that the victim's mother was behaving as a partner, a third wheel in the marriage, and should be moved on from the relationship. So the victim's partner stopped speaking with the victim's mother about the intimacies that were within her marriage, and according to the offender's partner, "this did not go down well". The victim's mother allegedly responded with, "You are holding out on me" and then the victim, it is said, who apparently held a flame for the offender's son, was rebuffed by him. He refused to engage in a sexual relationship with her and it appears that it was around this time that rumours at the local high school began. I do not accept that representation as accurate or truthful in light of the evidence that was adduced in the trial.
The offender exhibited stress about the allegations against him. He said he saw the victim as a sweet child who sought him out for company, advice and fathering. He remembered happy and warm times with her, providing her with afternoon tea, gossiping with the victim and other children from school and enjoying her wish to seek him out for company. He became emotional at the memory of a painting that she had provided; it was a gift. He itemised occasions when she manoeuvred to have more physical contact, but he would gently stop these without comment. He saw no meaning or message behind her behaviour, but others within their group offered the opinion that the victim and the offender were overly friendly and warned him against his behaviour.
It is noted that the victim's mother apparently became uncomfortable with the easy relationship between the offender and her daughter. So much was revealed in the course of the evidence and the attempts made by the victim's mother to have him desist in his frequent contact with the victim, including an occasion, which he acknowledged, when he had been told not to continue approaching her and yet saw it as his role to do so.
His personality is discussed. He was a colourful fellow, according to this, seen as playful, some would say immature, spontaneous and generous. He was often considered as an honorary girl, engaging in the women's conversations much of his life. He would help anyone. He was said to be honest and absurdly open and public about his thoughts and feelings. He was also impulsive and irritable, moody and prone to throwing tantrums. He was allegedly protective of children when engaging in playful activities, but lacked insight into how his angry outbursts at home would have distressed his own children at times.
The psychologist offers the opinion that he meets the criteria for an attention deficit hyperactivity disorder. He agreed to consult a psychiatrist and was told that he was more anxious than a sufferer of ADHD. He was given medication to stabilise his moods.
He acknowledged that he annoyed people with his irreverence and impulsivity, but he did not intend this. He said he was easily distracted and had a lot of trouble focussing on a conversation. He got bored easily and was triggered to make mischief to liven up a scene. The report continues in this context: "This has included engaging the public adolescent - sexual innuendo and picture sharing with [the victim's mother] - which [his partner] did not consider funny".
He was attributed with forgetfulness, distractibility and irritability as a source of personal frustration and disappointment which had made him at times a difficult partner. He is said to have suffered a lifelong anxiety manifesting in somatic distress and unexplained numbness in his body, including vision blurring and weakness in his legs. He became obsessive about tidiness and cleanliness and was easily and unpleasantly derailed by mess and things not going according to plan, and, unsurprisingly, this was all a source of friction.
Under the heading "Therapy", which was the subject of cross‑examination of the psychologist, he is said to have engaged well. The therapy arose over, at this point of the report, seven occasions between 23 August 2018 and 9 June 2020, when he attended upon the psychologist. He was said to have enormous difficulty listening. He was defensive and self-absorbed. He had limited insight into how he presented to others. He had difficulty taking the perspective of other people, especially when he felt wrongly judged, ignored or unheard. He is said to have been dismissive at his wife's and children's distress at the current situation, focussing on his own anxiety, what he said were threats to his life and work and the allegations. His proposition that he had threats to his life has not been amplified. He was emotionally needy, which the psychologist in the course of cross-examination acknowledged was her term, not something that she would have drawn from the offender. He wanted all the attention and help. He failed to understand that he had a role to play in caring for his family as they weathered through this storm, so called.
The theme continues: "It was this need for attention and affection, and his failure to understand how he was upsetting his own family, that made him vulnerable to the attention of the w's women. Matt would go out of his way to help people in need, not just the w's, at the expense of his own family. That said, Matt was also disarmingly honest in therapy and did not give the impression of someone with a predilection for underage girls. Being immature and impulsive, he was drawn to the silly and the smutty and enjoyed sending unflattering pictures of people - not just women, to workmates, friends and especially [the victim's] mother. He allowed informative conversations with [the victim] that should have been the province of her mother in the belief that [her mother] was not approachable on these topics. He allowed physical contact between himself and [the victim], for example sitting on his lap, done in the full view of family and friends, in the belief that [the victim] was "like a daughter to him" and she needed a father figure. He stated that he had never crossed the line sexually with [the victim] and that he enjoyed a healthy sexual relationship with his own wife".
In my respectful opinion, the psychologist has there captured the personality of this man and why he evolved into the developing relationship and sexual molestation of this child.
Ultimately the opinion offered is that he has the capacity to understand the gravity of his predicament, that he is a self-absorbed, emotionally demanding and obsessive person about order and cleanliness, which has made him a flawed husband and father. At the same time he is funny, generous and energetic, which make him attractive to those who like the outdoors and action sports, and despite his failings he has been much loved and appreciated by his family and members of the community.
The cross-examination by the Crown included the number of occasions the psychologist had experience in a clinical setting of sexual offenders; they were limited to three, not including the offender. There was reference to other associates to whom all of them were known. She spoke of people having approached her, expressing their worry and anxiety over the dreadful circumstances the offender was facing. She made no enquiry as to the state of the knowledge of these individuals, or what their source of information was. She was aware of one occasion that a pornography site was accessed; the information probably came from the offender, and quite fairly I believe at p 8 line 50 she acknowledged that she did not go looking for information regarding the rumours, because she did not consider that was her brief. Her brief, she said, was to calm him so that he could give a good and reasonable account of himself, whatever the truth might be, and to help to him to be as calm as he could with his family. Not an unreasonable proposition according to the circumstances with which she had to deal.
In the opinion offered under the heading of "Therapy" upon which she was cross-examined, specifically the predilection of underage girls, she describes her clinical opinion, drawing upon her own experience.
I have already indicated my view that this was an evolving relationship rather than someone who was in pursuit of sexual gratification of children whoever they might have been. Before I could ever come to such a view I would have to be satisfied beyond reasonable doubt that that was the case. Upon the material that has been provided by way of the trial and by way of this witness particularly I am satisfied that on the balance of probabilities the correct view is the one that I have expressed.
The psychologist was followed by the offender's partner.
I would observe at this point that there is not one victim in these crimes; there is at least the victim, who is the subject of sexual assaults, and there are in addition her mother, the offender's partner and his own children. I have often noted in my various capacities in the criminal justice system that the man or woman sitting in the dock is the focus of the prosecution and the outcome, but rippling out from that place is the impact upon members of family, including children, who see their father or their partner sitting in the dock, and upon the victim's family and the friends who are also exposed, at least indirectly, to what has occurred.
I found his partner as a compelling witness. I accept her as truthful and accurate, doing her best to answer questions appropriately. She was extraordinarily nervous, her stress level was patent, and she has lived this nightmare for herself and her children since this conduct was exposed. Yet there is more to come, because the offender must be sentenced to imprisonment for what he has done.
There is bound to be an impact upon her life and upon the lives of the children. It is not a hardship or circumstance that extends to the point that I can reduce the penalty that should be imposed. But I bring into account as part of the punishment that the offender must suffer that he is to see his partner and his children suffering this distress, and that they will continue to suffer distress until ultimately he is restored to them. Whether their relationships can be restored will be known as time unfolds.
Ms Urry described their relationship, that it is a long term relationship, and their children. The quality of this woman is reflected in the fact that she has striven to retain the family home, for the benefit of her children no doubt. She has endeavoured to do all she can to keep the business afloat, continuing to employ the electrician who worked for it and to whom there was reference in the course of the trial. The home is subject to a mortgage, the title is burdened by a caveat to cover the cost of the legal expenses in these proceedings. She has been diagnosed herself with hyperarousal of the sympathetic nervous system as a consequence of what has befallen her.
There has been difficulty accessing the offender in gaol because of the COVID-19 arrangements. Prison visits have been stopped, but I believe today they are intending to rearrange circumstances so that they can modify arrangements. Up until now contact has been by way of audio visual link or telephone contact. There was some evidence led with regard to an assault in the gaol that he reported Ms Urry. The initial implication that I took was something to do with what he had been charged with and convicted of, but as it turned out it was another inmate who took offence over what it would seem to be a noise made by the offender and that led to a confrontation with a punch thrown. He has been since then placed on limited association and that particular person was removed from the environment. Thus it would appear to be an event completely unrelated to the charges faced by the offender.
Anybody who thinks gaol is an easy place to be is completely misguided. For all of that period of time that one has to serve is the loss their life in that period, and disruption to the lives of those who love them. Even the most comfortable prisons are challenging and involve punishment for the person being required to serve a sentence.
There was cross-examination about messages that were sent and the relationship between the victim's mother with the family and the neglect he demonstrated towards his own family to the benefit of others. The text messages that were the subject of the cross-examination were tendered and marked exhibit C in that case. Questions were asked about the tension in the relationship; her efforts being made to continue payments on the house. I accept the distress that was represented in submissions regarding her, but it does not reach that level which allows me to reduce what is otherwise the appropriate sentence, reached upon consideration of the added punishment which is part of the synthesis of subjective material. Other material led in his case on sentence is the document provided by his partner, which is included in exhibit 1.
There is a report from a Yalina Woody, psychologist, who speaks about the impact upon the children and the offender's partner, and the rearrangement of their life after this prosecution and what has occurred as a consequence.
There is a report from a urological surgeon, who writes of the qualities the offender has exhibited to him, known to him for some 15 years. He provided work for this person, Dr Katelaris.
There is a character reference from a solicitor. There is a character reference from Ms Jenkins, speaking of her association and contact with this family.
There is a reference from a Mr Walton. He has made his own contribution to society through the Rural Fire Service. He has known the offender from when he was born, living next door to him. He provides a history of his contact with the offender and speaks of his qualities.
Rebecca Wynne has provided her reference. She is a lawyer of some nine years' experience, having worked in the legal industry for over 20 years. She has known the offender for as long as she can remember, they grew up together. Then she speaks of his qualities as she perceives them.
Then there are certificates showing the course that he has undertaken and concluded successfully.

SUBMISSIONS

All these were the subject of careful submissions made by his counsel, both orally and with regard to a written document that was filed with the court.
I am reminded of the principles with regard to standard non-parole offences, to which I have already referred. The submissions challenge what the Crown said about offences against the victim being on a regular basis.
The Crown urges the Court to take the view that these offences over six events occurred within a context of ongoing offending, consideration of which is a permissible course, but insofar as the submissions on behalf of the offender represent that the Court must sentence for the offences charged without increasing what is proportionate and appropriate, with regard to other misconduct, I would accept them.
The submission was that the offending was between the low and middle range of objective seriousness, with which I agree, as I have earlier reflected. There was no threat or use of violence; that is not this case. The absence of such an aggravating factor of course does not extend to mitigate what is objectively the misconduct upon which the offender engaged. His lack of criminal antecedents is noted.
The Victim Impact Statement is noted. And there is a challenge to the content of it, because of the extent to which it expanded upon what was evidence in the trial. I have already indicated the limited scope for the use of a Victim Impact Statement that exists in proceedings such as this.
The submissions extend to the subjective material. He is entitled to draw upon his good character and the reputation that he has been able to develop in his community, but that is of limited significance in the context of the offender with which I am concerned.
There were submissions made with regard to the access of the websites, upon which I have already commented. I noted that there is a dearth of evidence upon who conducted the searches, what was examined, what was the time, whether anything was downloaded, and the relation between the time when they were executed and the misconduct with which he was charged. And I agree with what is said there, consistent with what I said earlier.
Upon prospects of rehabilitation it is urged that I should come to a view that there are strong prospects of rehabilitation. I accept that there are prospects of rehabilitation. Assessing them is difficult though. But in light of my perception of why he did what he did in the context in which he engaged, it would seem to me that upon recognition and insight there are prospects of rehabilitation such that the Court can take some comfort in the view that he will not come back before the criminal justice system for such misbehaviour. The tools used to assess the risk of recidivism, to which I earlier referred, are imprecise, blunt instruments and their outcomes for the results produced must be assessed in light of all of the material that has been presented to the Court in relation to these charges.
The circumstance of his custodial arrangements and impact upon his family has been addressed, I have already commented upon that. I have already addressed the time when the aggregate sentence is to commence and totality considerations are clearly relevant.
Ultimately the submissions made by the parties really do not diverge greatly. The Crown, after helpfully providing me with the references to the evidence supporting each of the charges, reminded me of the obligation the Court has to find facts consistent with the verdicts of the jury. The Crown raises five points that are relevant to the assessment of objective gravity and the extent of the offending. These are: First: that the accused engaged in a course of conduct over a period of 18 months. Secondly: that he exploited the relationship he had with the victim. Thirdly: that he abused the position of trust in which he was placed by the circumstances where the victim's mother, having engaged with the offender and his family. Fourthly: the victim of these offences was a vulnerable person, only a child. I have put that to one side, because these are child sex offences and that characteristic is integral to each of them and must be brought to account within the context of the legislation creating the offence in each case. Fifthly: the Crown points to the escalation of behaviour which is apparent as one takes each of the counts on the indictment in turn, as I said earlier with regard to the attempted penetration of the complainant with his penis after manipulating the vagina with his fingers, and it is noted that he persisted with the contact with this child despite the mother's attempts to intervene, which further supports my view, I believe, that he was enamoured of this child inappropriately.
The Crown reminds me that the authorities dealing with sex assault offenders and at this point in history with the evolution of the number of prosecutions that come before the court for this behaviour and what was exposed in the Royal Commission recently conducted at a national level. The evolution of jurisprudence has been that penalties imposed in the past have been inadequate and now with the intervention of appellate courts and Parliament the penalties have been brought more into line with what community expectations are.
In R v Wicks [2005] NSWCCA 409 there are a number of sentencing principles to be brought to account, drawing upon the appellate courts' decisions up until that time. General deterrence is of paramount consideration. Abuse of a position of trust is an aggravating feature. The type of conduct is relevant. The number of victims is relevant; in this case there is only one. The number of occasions when the offences occurred is relevant and the time over which they were committed.
The Crown addressed the objective seriousness of the offences, noting the position of trust. The offences occurred on a number of occasions. The individual instances it is acknowledged were perhaps opportunistic without specific planning for each event, but there must have been some measure of planning for some of them and the taking advantage of opportunities that were presented when these two people were alone. It is suggested that the offender orchestrated trips on the motorcycle to his in-laws. Perhaps that is putting it a little high. Perhaps it might be better expressed that he took advantage of the opportunity that was presented when his in-laws were away so that he could continue his developing relationship with this child.
The occurrence of the offences in her home where she was entitled to be safe is observed. The persistence of the offending was observed. The conduct ceased as a result of her disclosing the misbehaviour. The Crown puts the objective gravity of this misconduct about mid-range. Mr O'Donnell SC and I have the misconduct below that level, but it is not so far from where the Crown has placed its assessment.
I am reminded of what the authorities have said with regard to the impact of misconduct upon such victims, and I have already addressed that in the course of my judgement. I do not agree with the proposition that the emotional harm and loss suffered by the victim was substantial within the meaning of s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. It might well be that I am not in a position to make a finding in those terms in the absence of evidence speaking to that particular topic, apart from the Victim Impact Statement.
I am reminded of the need for accumulation, reflecting totality, that there were six occasions when the 14 offences occurred. I am reminded I should find an appropriate sentence for each offence and then in the process of aggregation assess totality and apply those principles to the determination of what the aggregate sentence should be.
Custody will be served. The reliance placed on circumstances arising by way of COVID-19 are being adjusted as and from today by Corrective Services, who, I might observe, have been extraordinarily successful in controlling the environment against the risk of infection.
The Crown resists a finding that there are prospects for rehabilitation. I have already dealt with that. It is true though that there is no evidence of any contrition or remorse and he persists in his denial of the misconduct.
Section 5 Crimes (Sentencing Procedure) Act 1999 has been reviewed. Clearly nothing less than a custodial sentence is appropriate in this case. All of the purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 are engaged.
There must be general deterrence. There must be adequate punishment, there must be specific deterrence. The need to protect the community from the offender is perhaps not so significant in this case. Neither is the need for extensive weight to be given to aspects that might address rehabilitation. He must be made accountable for his actions and the conduct must be denounced; it was reprehensible and extraordinarily inappropriate and the Court must recognise the harm that has been done to the victim and to the community, including the victim's family and the offender's family.
There are special circumstances. There should be a longer period on parole than contemplated in s 44 Crimes (Sentencing Procedure) Act 1999 to allow his reintegration back into the community. At 42 he will be approaching the second half of that decade of his life before he will be eligible for parole and he will need assistance with regard to his reintegration.

SENTENCE

The offender is convicted of each of the offences of which he was found guilty. I announce the following sentences that are appropriate for the individual offences were he to be convicted and sentenced on them individually. For count 1 I specify a sentence of 3 years with a non-parole period of 2 years. For count 2 I specify a sentence of 3 years, including a non-parole period of 2 years. For count 3 I specify a sentence of imprisonment for 2 years with a non-parole period of 1 year and 3 months. For count 4 I specify a sentence of imprisonment of 3 years with a non-parole period of 2 years. For count 5 I specify a sentence of imprisonment of 2 years with a non‑parole period of 1 year, 3 months. For count 6 I specify a sentence of 3 years and 6 months with a non‑parole period of 2 years and 6 months. For count 8 I specify a sentence of 3 years and 6 months with a non‑parole period of 2 years and 6 months. For count 9 I specify a sentence of 3 years and 6 months with a non‑parole period of 2 years and 6 months. For count 10 I specify a sentence of 2 years with a non-parole period of 1 year and 3 months. For count 11 I specify a sentence of imprisonment of 4 years with a non-parole period of 2 years and 9 months. For count 12 I specify a sentence of 2 years with a non-parole period of 1 year and 3 months. For count 13 I specify a sentence of 4 years. That being an offence that does not have a standard non-parole period there is no requirement that I specify a non-parole period. For count 15 a head sentence of 2 and a half year's imprisonment with a non-parole period of 1 year and 9 months. For count 16 a sentence of 2 and a half year's imprisonment with a non‑period of 1 year and 9 months.
In aggregation of those sentences to reflect the totality of the offending upon which the offender engaged I specify a non-parole period of 7 years, commencing on 19 May 2019 to expire on 18 May 2026. I specify a further period of imprisonment during which the offender will be eligible for parole of four years that shall expire on 18 May 2030. [1]
I shall leave the exhibits on file. I anticipate in light of what was recorded in some of the documents that the offender anticipates at least consideration of his rights of appeal in which case this material will be required for these proceedings.
Upon application by the offender, I recommend he should be released at the expiration of his non-parole period, subject to his conduct in custody, of course. But upon the material that I have and upon my assessment of the matter it is my view that the custodial component I specified is what is appropriate for his conduct and he should be given the opportunity for parole upon its expiration and I recommend accordingly.

Endnote

I indicated earlier the commencement date of the aggregate sentence I propose to impose today and I specified 10 May 2019 before later recalculating it to 19 May 2019. The correct commencement date of the sentence is 10 May 2019 and this was communicated to the parties by my Associate via email after my judgement concluded. 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: 03 May 2021

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (7)