R v Carr

AGREED FACTS

1. The agreed facts are comprehensive. I have reviewed them a number of times. I must summarise them in Court so that the public and the offender understand the basis for my sentencing. I will try, so far as I am able, to summarise them in a way that reduces them to their basics, without further embarrassing anyone in Court by going into all the details that are presently before me.
2. Prior to the offending, the subject of count 1, the offender had Emma go into his bedroom and watch a pornographic movie. She understandably told her father that what she was being asked to watch was "gross."
3. The first matter, the subject of count 1, s 61M(1), occurred on the next occasion she was asked to go into the parents' bedroom and watch a movie. While she was doing so, Carr lay beside her. He placed his hand on her knee and moved it up inside her thigh. His hand was on her skin, although she was wearing a nightie. He stroked her leg on her thigh near her vagina. She pushed his hand away, but he put his hand back on her arm. She kept pushing him away. He told her it was all right, that he was not going to hurt her. He told her that if she told anyone, that it would be trouble. She returned to her bedroom.
4. Count 2, s 61O(1) occurred a couple of nights later. Again, she was asked to go into the bedroom. Again, there was a pornographic movie playing. Carr removed his penis from his boxer shorts and touched it until it became erect. Emma had no idea what was happening. She recalls feeling shocked and uncomfortable. She knew what he was doing was not right. He asked her to touch his penis, she told him she did not want to. A few minutes after he made her go to the toilet with him. He asked her again to touch his penis. She was present while he ejaculated into the toilet bowl. He returned to the lounge room. Again, there was conversation about sexual matters while all this was occurring.
5. The matter on the Form 1 relates to the next recollection she has, it is a s 61M(1) offence. Again, she was in the bedroom, again there was a pornographic movie playing. On this occasion her breasts were touched. Again, there was discussion about what was going on in the movie. Her underwear was taken off, although she was still wearing a nightie. On this occasion, he put his face towards her breast and sucked her nipple. She told him to stop as she did not like what he was doing, but he continued to do it. He also on occasions stopped and looked at her naked vagina.
6. Count 3, another s 61M(1) offence occurred shortly afterwards as she attempted to close her legs and move her body away from him. He used his hand to touch the outside of her vagina. She flinched, as instinctively she knew that this was not right. Each time she told her father to stop, he would say she was being silly. Eventually he did stop.
7. Another s 61M(1) matter was placed on the Form 1. It was her next recollection. Again, they were watching a movie. Again, he had his penis out and she refused to touch it. On this occasion, he tried to grab her hand and place it on his penis. She moved her hand away, but eventually her hand did touch his penis. Again, the incident continued for a period.
8. Count 4 relates to a s 61O(1) offence following the incident where he had her hand touch his penis. Carr asked Emma to go to the toilet with him, and she was present when he ejaculated into the toilet bowl.
9. Count 5 involves an aggravated indecent assault: s 61M(1). Related to it is a matter on the Form 1 of attempted sexual intercourse with a child: s 66D and s 66C(3). Again, Emma recalls Carr asking her to go to his bedroom. He told her this time not to wear underwear. She did what she was told. Again, as she had been told on previous occasions, she lay on the bed. Again, a pornographic movie was playing on the television. Her nightie was removed. Again, she was told not to be silly. She was told not to make loud noises. Carr touched her breasts with his hands and put his finger on top of what she now knows is her clitoris.
10. She attempted to push the offender away, however, he turned her around so that she was face down on the bed. He moved her legs apart, and from behind, moved his penis towards her vagina. I take that as the aggravated indecent assault matter. The matter on the form 1 then relates an attempt to push his penis against the complainant's vagina. She moved away, but he pushed his penis again against her. She recalls it being painful, she cried, but he continued to assure her he would be gentler as he went on. Emma clearly remembers the offender stopping and saying that what he had done he was not allowed to do. She did not know what he meant by saying that at the time. But she remembers this event being painful.
11. Count 6 is a charge pursuant to ss 66C(3) and 66D. There is also a related s 61O(1) matter on the Form 1. She recounts It recalls a similar incident, however this time she was not asked to come to the bedroom without underwear, distinguishing it from the previous matter. Again, she was in the same position on the bed. Again, she said she did not want to do what was to happen. Again, her nightie and underwear were removed and Carr attempted to put his penis in her vagina as he laid on top of her. She cannot recall how long this occurred, but she knew it was longer than the last occasion. She has no recollection of him wearing any condom. She remembers that they went to the toilet and later he ejaculated while making her watch.
12. Her recollection is that there was a period around this time when for some weeks her mother was not working. She felt happy her mum was around. Nothing occurred between herself and her father of an untoward nature while her mother was around. However, after her mother went back to work, the sexual abuse continued again.
13. The next occasion she recalls is the subject of count 7, the last count on the indictment. Again, it is a matter pursuant to ss 66C(3) and 66D. On this occasion, the offender removed her clothes and attempted to push his penis insider her vagina as she was face down. She told him it was too painful. Straight after that, he attempted to push his penis between her legs, towards her anus. Even though it was painful for her, she remembers thinking there was simply no point in fighting him. She was scared of him.
14. The disclosures, as the agreed facts indicate, that these were examples of what was occurring on a regular basis.
15. Emma recalls that her mother did raise with her the question whether her father had touched her. She told her mother that nothing had happened and started to cry. Her mother continued to question her, but she believed, as she had been told, that to tell the truth would get her and perhaps her father into trouble. The threats that had been made were preying upon her mind and continued to do so. She feared that she and her siblings would grow up without a father if she told the truth. The agreed facts indicate that there were things that occurred in the family which reduced the opportunity for the offender to commit similar offences. There is no evidence before me that after this last incident anything else occurred. All of the events occurred while she was in year 6 and aged between 11 and 12.
16. Nothing was spoken of by her father until 2011 when Carr's stepfather passed away. On 12 September 2011, he called Emma into his room. She was then 22 about to turn 23. He told her that he would not hurt her. He told her he was sorry and he wanted to talk. He disclosed to her what had been done to him and his siblings. He did say it was not an excuse, but that he wanted her to know. As I noted earlier, this was not something she wanted to know and it led to her having flashbacks.
17. The disclosure to her husband was in 2015. In April 2016, there began the process of making the police statement, which led to the agreed facts which are before the Court. There were three conversations that were lawfully recorded by police. During one of them, the offender admitted that what he did was for his own satisfaction. When asked why by Emma he said, "Because I became weak. I became weak and did things that I should never have done" and hurt her. He said "What can I say Emma? I'm sorry." The complainant said to him, "Well then, why can't you say, Emma, I'm sorry I sexually assaulted you, because you know what you did. You know." He replied then and only then "Emma, I'm sorry I sexually assaulted you."

OBJECTIVE SERIOUSNESS

1. When a criminal act involves either indecent touching or attempted sexual intercourse with a child, there is no rigid hierarchy distinguishing the different types of acts. A sentencing Court must however take into account a number of important factors, they include: 1. The actual character of the acts involved, including the degree of physical contact involved. 2. The age of the child. Emma was 11 or 12. 3. The age difference between the perpetrator and the child. 4. The time over which the act occurred. 5. Whether any harm, hurt or injury, physical or psychological, resulted and the extent of that harm. 6. In viewing all of the matters together, the number of acts and whether there was any escalation in the intrusiveness of the sexual or indecent activities. 7. The relationship that exists between the child and the perpetrator. Fathers are expected to protect and nurture, not abuse children in their care. A father is in a particular position of trust. 8. Where the offence occurred and in what circumstances. A child in her home is virtually helpless against attack, particularly by a father who exercises parental authority over every other aspect of her life. 9. The age of the child relative to the range encompassed by the offence. The younger the child, the more serious the offence.
2. Every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on sexual activity with children. That prohibition is intended to protect children from the physical and psychological harm taken generally to be caused by premature sexual activity; harm which is well demonstrated by the Victim Impact Statement that was read in Court today, and is part of exhibit B.

VICTIM IMPACT STATEMENT

1. I have received and considered Victim Impact Statement. In it, Emma notes that every day is a battle for her. Simple things can trigger flashbacks.
2. She details the impact of being forced to live in the same home as her abuser and accept his parental discipline and control over her. Her problems were exacerbated because she was simply unable to tell what had occurred, because she was too scared. She speaks of the negative impact on her and her relationships with others. But on a positive note, she notes that by taking control of her life and with supports she is now receiving, she is able to see herself as a survivor not a victim.

MAXIMUM PENALTY

1. Courts have to have regard to the maximum penalty, the legislative scheme in the Crimes (Sentencing Procedure) Act 1999 and the matter on the Form 1. At the relevant time, the following maximum penalties applied: s 61M(1) Crimes Act 1900 maximum penalty seven years; s 61O(1) Crimes Act maximum penalty five years imprisonment; s 66C(2), s 66D Crimes Act maximum penalty ten years imprisonment.
2. Context must be given the maximum penalties. They provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison with other cases. It is not however appropriate to look first at the maximum and then proceed by way of making proportional deductions from it: Markarian v The Queen (2005) 228 CLR 357, at [30].
3. Section 25AA of the Crimes (Sentencing Procedure) Act applies to these proceedings. I must sentence the offender in accordance with the sentencing patterns and practices that apply today, not at the time of the offence.
4. I am not aware that Courts have ever underestimated the trauma sexual abuse causes children, but penalties were much lighter last century than they are today. In 2000, matters such as this were, I am aware, treated very seriously. Retributive penalties were imposed. Sentencing patterns have changed since then, and penalties for matters such as these are now more severe. These increased penalties reflect the Courts' recognition of both, the more retributive approached signalled by Parliament by the increases in maximum penalties and the introduction of standard non-parole periods. They also indicate a greater understanding of the long term psychological consequences for the victims of such crimes, and a considered judicial response to changing community attitudes to these crimes: R v MJR (2002) 54 NSWLR 368 at [57].
5. While I am required to comply with s 25AA, I must take guidance from the maximum penalties applicable in 2000 not now. Section 25AA does not alter this fundamental common law principle.
6. As I understand it, the correct approach to fixing of a sentence compliant with s 25AA involves the following steps: 1. determine the facts as are now available to the Court; 2. have regard to the maximum penalty enforced at the time as a guide to the range of punishment then available; 3. identify where within the range of offending conduct covered by the offence charged, that is the offence under consideration, falls; 4. fix or indicate the term of the individual sentences and ultimately the total sentence. 5. determine whether special circumstances require that the relationship prescribed by s 44 of the Crimes (Sentencing Procedure) Act be varied: MPB v R [2013] NSWCCA 213, at [34] & 35: Moon v R [2000] NSWCCA 534; (2000) 117 A Crim R 497, at [66] - [71].
7. The maximum penalties are a measure of how serious the offences are viewed by Parliament and the community. They carry with them an implicit instruction to Courts that harsh or retributive sentences with a focus on both on specific and general deterrence are required: Ryan v The Queen (2001) 206 CLR 267, at [46]; R v Herring (1956) 73 WN (NSW) 203, at [205]. Courts act with the ultimate aim of protecting children from exploitation. A proper sentence marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes. I am heartened to know, and heartened to hear and understand, the offender has at last accepted responsibility for his crimes.
8. The penalty that I intend to impose I am sure will act as a specific deterrent to him. But the sentences must also reflect the community abhorrence of, and concern about, adult sexual abuse of children. Parliaments do not enact maximum penalties as mere formalities, as the High Court pointed out in Markarian. Judges need sentencing measures, and here I must have proper regard to them.
9. In considering the objective seriousness of the individual crimes that I have detailed, little more needs to be added once what the offender did to his daughter is properly understood. It is clear that the level of sexual intrusion escalated over the year. In relation to the assault and act of indecency matters, only count 1 did not involve genital contact. In each other case, there was skin on skin contact to a considerable degree involving the offender's hands or lips or penis on the child's body, including her genital area and nipple. Similarly, each of the aggravated act of indecency matters involved the offender's exposure of the child to both his penis and the act of ejaculation.
10. The counts involving attempted penile vaginal penetration were also serious examples of their type. While the act of intercourse was not completed and thus had, on a purely physical level, less severe consequences than the completed offence, I have to consider the nature of the acts, the offender's persistence in trying to place his penis inside his daughter's vagina or towards her anus and the time over which the attempts occurred.
11. The two ss 66C(3) and 66D counts differ only in relatively minor details, but I note that the agreed facts state that the first attempted penile penetration was the matter where, understandably, she noted the most pain. I can only take that offence into account on a Form 1. I am not sentencing for that painful penetration attempt, nor can it be taken into account when assessing the objective seriousness of the offence to which it relates I will add the authorities. I do note, however as I have said, that those attempts did cause pain and distress.

FORM 1

1. The matters on the form 1 do operate to increase the sentence that would otherwise be appropriate for count 6. So much was made clear by the High Court in Markarian v The Queen. The increase operates to recognise the need for personal deterrence and retribution for the crimes for sentence: see the guideline judgment Attorney General's Application No. 1 (2002) 56 NSWLR 146, at [39] - [42]. The matters on the Form 1 here do however operate to increase the sentence that would otherwise be appropriate. That increase can be substantial, as was pointed out in the Attorney General's Application No. 1, at [18] and Grube v R [2005] NSWCCA 140.

DELAY

1. Here the offender ceased offending against his daughter and has not, so far as the Court is aware, committed any crime since 2000. Sentencing for a stale crime long after the committing of the offences calls for a considerable measure of understanding and flexibility of approach: R v Todd [1982] 2 NSWLR 517, at 519; Mill v The Queen (1988) 166 CLR 59, at [14].
2. The substantial delay in bringing a matter before the Court, in some cases, may operate to the offender's advantage by providing him with the opportunity to demonstrate his capacity for rehabilitation by not offending: AJB v R (2007) 169 A Crim R 32; Wright v R [2008] NSWCCA 91.
3. Offenders are entitled to have evaluated these matters in their favour. Any factors deriving out of their conduct during the period of the delay which reflects to their advantage should be taken into account. This includes practical demonstrations of rehabilitation.
4. In R v Moon [2000] NSWCCA 534, Howie J noted that while there is no universal rule and delay should not be allowed to dictate a sentence that is not appropriate: "It is the fact of imprisonment rather than the length of the sentence which will be of greatest significance to punish the offender and denounce his conduct:" at [81].
5. I note, as I have already indicated, that s 25AA requires reconsideration of that particular passage. Nevertheless, it is a matter for the Court to consider.

SUBJECTIVE CASE

1. Carr's elder sister in her character reference, exhibit 3, sets out his personal history which conforms to that given to his psychologist, Mr Brabant. His elder sister herself is a survivor of child sexual assault by both her father and stepfather. She brings a unique perspective to her brother's history. Carr also confided in her about his activities at about the time of the stepfather's death, but not the extent of any touching of Emma. He told her of his concerns for the harming he may have caused his daughter. She told me that she did have a conversation with Emma, but Emma was not ready, something she understood entirely.
2. She notes Carr's reaction to the ultimate revelations of his crime and the verbal abuse Carr has suffered at the hands of some family members. She notes that he has embraced the opportunity of treating his underlying psychological problems. She sets out what she says are his countless expressions to her of remorse and pain at the harm he has caused. She notes that since his arrest he has lost contact with most of his family, and contact with the community and other supports. He has been living in a van on an isolated block. She notes he has travelled to report on bail many hundreds of kilometres. She speaks of her brother as a gentle soul who is being eaten away by remorse. She says he is anxious about the impact of his crimes on Emma and his family, rather than himself.
3. A letter from his younger sister spoke of her brother's desire to give Emma closure. She said he is a man who has made many sacrifices for others, despite his struggles with his own mental health, isolation and despondency.
4. Another friend describes him as a good bloke who has learnt from dealing with his multiple traumas. He too spoke of the statements of remorse and acceptance of responsibility.
5. Now 56 years old, Carr described to his forensic psychologist, Mr Bembrick, a "complex history" of frequent sexual abuse and other violence against him and his sister by his stepfather when he was quite young. Family and Community Services were involved at some stage. His stepfather spent time in prison. His stepfather however returned to the family home on release.
6. He reports having learning, literacy and discipline difficulties while at school. He was expelled in year 10. He was able to find work and he spent five years in the army before leaving to ultimately obtain work, and has worked in the community from the age of 25 successfully as a pest controller. He has no relevant criminal history.
7. He married at 24 and had three children, of whom Emma is the eldest. He has had no contact with any of his children since this matter came to light. He did say he made some disclosures to his wife some time ago, and that is when measures were taken to limit his contact with Emma. He told Mr Brabant of his remorse and shame.
8. He has been seeing mental health professionals and has seen them on a number of occasions, starting when he was 13 after his stepfather's abuse was revealed. He has taken such assistance and used it to successfully overcome a problem with alcohol abuse that arose while he was serving in the army. He has been seeing Dr Stevenson, who provided a report to the Court, since 2015. He takes diazepam to assist in dealing with his many problems.
9. Mr Brabant reports that "a significant history of trauma" has led him to diagnose of post-traumatic stress disorder, PTSD. Mr Brabant found it difficult to identify specific causal factors for the offending behaviour, but he assessed Carr' risk of reoffending using both static and dynamic risk tools. Overall he suggests Carr's risk of reoffending is likely to be low, despite a lack of insight and denials of some aspects of his behaviour. He made this conclusion as the history he was given and the history, as it appears to me, is that Carr was able to desist from committing further sexual offences and has not committed any other sexual offences since.
10. Mr Brabant says that risk can be further moderated by psychological and psychiatric intervention. He recommends these treatments be undertaken, but notes that participation in intensive custodial offence-focused rehabilitation should not be required. Mr Brabant notes that although Carr's criminal behaviour towards Emma was frequent and escalated, it occurred during a relatively short period of his life and he was able to desist without detection and official intervention or formal rehabilitative treatment.
11. Dr Stevenson who has been treating Carr both as an outpatient and in hospital since 2015 provided a report: exhibit 2. In it, he notes Carr's extremely severe developmental trauma. Dr Stevenson is of the view that it is one of the most severe he has ever come across. Despite Carr' history, however, he said he had managed to sustain meaningful relationships and career. Dr Stevenson concluded that Carr meets the diagnostic criteria for PTSD and major depression. The history of fluctuating levels of depression since early childhood was noted. Dr Stevenson's opinion is that dealing with such complex trauma is a long process. He says, to date Carr has demonstrated excellent engagement in treatment, he has been compliant with therapy and medication. If this continues, Carr will make gradual progress and his risk of reoffending is low.

IMPACT OF IMPRISONMENT

1. Courts do not underestimate the lived experience of gaol, particularly for those, who like Carr, are older with mental health and other conditions: R v Burrell (2000) 114 A Crim R 207, at [27].
2. The fact that an offender was or is suffering from a mental disorder or disability, either at the time of the commission of the offence or at the time of sentencing, can be taken into account at sentencing: R v Anderson [1981] VR 155; (1980) 2 A Crim R 379: s21A 3 (j) Crimes (Sentencing Procedure) Act 1999: DPP v De La Rosa [2010] NSWCCA 111. Sentencing for any offender, but one who has a history such as this offender, calls for what have been regarded as "sensitive discretionary decisions": R v Engert (1995) 84 A Crim R 67 at 67. This involves the application of the particular facts and circumstances of the case for the purposes of criminal punishment.
3. Imprisonment is generally more burdensome for prisoners such as Carr than for the average prisoner. That can justify a finding of special circumstances. Care, however, should be taken to avoid double counting such mitigating factors. Age; ill health; problems dealing with complex trauma, do not necessarily mean that a prison sentence should not be imposed, or that a sentence should be less than the circumstances of that case would otherwise require. It is clear that, as Mr Brabant concluded, a long period of imprisonment could and probably will disrupt the necessary psychological and psychiatric care.
4. While I am quite confident Justice Health will do what they can, many cases I that I have heard over the past year indicates that access to psychological and psychiatric treatment can be difficult, if not problematic, while in custody. Further, Courts do not underestimate the lived experience of gaol for those charged with child sex offences. It is notorious that they are very low in the hierarchy of prisoners, and are often subject to assaults or threats while in gaol. It is notorious that people such as Carr, more often than not, will serve their sentences in some form of protection.

MULTIPLE OFFENCES

1. Each count for sentence involved discrete acts of criminality however each count had some common features. The purposes of sentencing apply to each, and those overlap. The events occurred over a period of months. They are representative. The penalty for one offence could not fully encompass the criminality of any of the others.
2. Each of the sentences should be partially cumulative. The aggregation of all the sentences must be adjusted in an appropriate measure of the total criminality involved: Postiglione v The Queen (1997) 189 CLR 295 at 307-308, per McHugh J; Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 41.
3. It is recognised that Courts simply do not add one sentence upon the other. It is also recognised the severity of the combined sentences should not, unless absolutely necessary, operate to destroy any prospect of rehabilitation and reform.
4. The severity of a sentence increases at a greater rate than the increase in the length of the sentence. To put it simply, two years in gaol is a lot worse than one year in gaol. Three years is significantly worse than one. That said, public confidence in the administration of justice requires that there be no suggestion there is some sort of discount for multiple offending.

STRUCTURE

1. I intend to indicate an appropriate sentence for each matter, taking into account all of the matters noted in this judgment. Each indicated sentence will reflect its objective seriousness relative to the other and the reduction for the plea of guilty. The Form 1 will be taken into account on count 6. Care needs to be taken, as these are intuitive assessments. The guidance offered by the maximum penalty must be balanced with all other factors, those that aggravate the sentence and those that mitigate. The terms of sentences are not meant to be arithmetically derived. This is of particular application when I come to considering the value of the guilty plea.

VALUE OF GUILTY PLEA

1. The guilty plea came late. Advantage was taken of the special call over, and it meant that Emma was spared the ordeal of the trial, and did not have to wait any longer for vindication. The plea was a practical manifestation of remorse and contrition. That meant that another trial could be listed at Wollongong District Court. The plea thus had some utilitarian value to the efficiency of the justice system. In Thompson (2000) 49 NSWLR 383, at [3], Spigelman CJ noted that particular cases, especially sexual assault cases and crimes involving children, there is a particular value in avoiding the need to call witnesses, especially victims, to give evidence.
2. However, these proceedings are governed by s 25D of the Crimes (Sentencing Procedure) Act. I must apply s 25D(2)(e) and reduce each indicated sentence by 10% as the legislature provides for to reflect the utilitarian value of that plea. I will take care that the benefit of that reduction is not eroded by the process of accumulation. I will not engage in a strictly mathematical approach which would result in the indicated sentences being set out as fractions of months or weeks. As I understand the legislation, sensible rounding is still a process available to the Court. Ultimately, when I look at the reduction for the plea for each indicated matter, each of the reductions will even out to effectively reduce the individual and overall sentences by the required 10%.
3. I can and do take into account the expressions of remorse that were made at various times by the offender. But it is also clear, as Mr Brabant set out in his report, that the offender still has little insight into what he did, why he did it, and the impact upon the complainant, and that is despite the clear impact of the abuse on him and his sister many years ago. There are reasons here, which I trust will be clear, of the background of the offender, recognition of the community's interest that he be returned to the community in a way that can be structured and assisted, proper recognition of his history and the impact of imprisonment on him, for a finding of special circumstances. In doing so, in making that finding, I am mindful of the requirement that the minimum period for which the offender should be imprisoned, must also properly reflect the gravity of his offences and the other purposes of sentencing.

SUBMISSIONS

1. I am indebted to Ms Walshe, solicitor for the Director of Public Prosecutions, and Mr Fraser Public Defender, for their comprehensive written and oral submissions. I hope this judgment does justice to them. I do not intend to explicitly refer to each of the matters raised, but I have considered and addressed them in coming to my determinations as to the appropriate sentence.
2. Specifically, I note that Ms Walshe made some important points, in addition to the comprehensive written submissions. First, that no other sentence other than full-time imprisonment is appropriate in relation to each of the matters before the Court. Second, she draws attention to the fact that at the time of committing the offences, the offender was saying to his daughter and himself he should not do what he was doing, but he did. She also asks I take considerable care in putting too much weight upon expressions of remorse, for the reasons I have already outlined. And finally that I not double count matters either in aggravation or mitigation of penalty, because there is considerable overlap in relation to the evidence and sentencing factors that have to be taken into account.
3. Mr Fraser drew my attention to the expressions of remorse that had been made over the years by the offender. He also noted that so far as this offender is concerned, given that the offending ceased sometime in 2000, that the specific deterrent impact of custody will be met by, as Howie J pointed out in Moon, by the closing of the prison door. That does not, as he clearly recognises, mean that a deterrent sentence should not be imposed.
4. Particular attention was drawn to the history which is before me. It is sad but not uncontroversial, relating to a severe history of childhood deprivation, which, on any view, must have compromised his decision-making processes. Reference is made to the diagnosis of depression and post‑traumatic stress disorder. Though no specific causal link is put forward, it is clear that both were operating at the time of the commission of this offence and require a sympathetic consideration.
5. In particular, a sympathetic consideration is asked, because this matter falls into a case where an abused child is now to be dealt with as an abuser, and that the cycle of abuse has unfortunately and tragically moved to another generation. All of these matters say that while heavily deterrent and retributive sentences are generally called for, less weight can and should be given to those factors.
6. Ultimately, Mr Fraser points to the dilemma that any sentencing Court has to address. Adequate punishment requires a lengthy period in custody. But the Court also has to be aware, as they are made aware all too frequently by Victim Impact Statements, of the trauma that is caused by premature childhood activity, and that that trauma is often reflected in many and various symptoms. Tragically, one is the repetition of the offending behaviour. On the other hand, it bears repeating that this offender knew the consequence of his actions perhaps more than anyone else.
7. I have had regard to practices of other sentencing and appellate Courts. As I indicated in the discussion, it is a sad but tragic fact that this is the third matter involving offences committed on a child by a father or a stepfather that I have had to deal with in the last couple of months. I have to ensure that this sentence is consistent with principles set out in other cases. The guidance offered by appellate Courts is always welcome and the pattern of past sentences, particularly the current pattern of sentencing for offences such as this, can help guide the penalty that I must impose and I am required to have regard to it. But as Bell and Gageler JJ noted in The Queen v Pham [2015] HCA 39, "… sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases:" at [47]

SYNTHESIS

1. As I indicated, sentencing for a stale crime calls for a considerable measure of understanding and flexibility: R v Todd [1982] 2 NSWLR 517, at [519]. This is particular so as Carr ceased offending without formal intervention. The delay in bringing the matter before the Court operates to his advantage. It has given him an opportunity to demonstrate his capacity to lead a prosocial life. This in turn makes it less necessary to punish him in order to deter his future offending. It provides another basis for a finding of special circumstances.
2. Carr's history of severe developmental trauma and its long-term consequences is deserving of sympathy and understanding, and it must be taken into account. Such profound depravation can compromise a person's capacity to mature and make mature decisions. It is a relevant factor in mitigation: Bugmy v the Queen [2013] HCA 37; (2013) 249 CLR 571. A pattern of abuse set in train by his father and stepfather has now continued into another generation. Carr's capacity for self-awareness and awareness of others was and remains compromised. His moral culpability for these crimes must be reduced. But that said, he knew what he was doing and he knew the wrongness of what he was doing to his daughter. Carr is not well equipped physically or psychologically for a long term of imprisonment. He will require psychological and psychiatric care in custody and on release.
3. On release, his risk can be managed as he retains some strong prosocial supports and has accommodation available to him. A long term in prison might erode that support, but I am confident it will be given to him at least by some portion of his family. The other portion of his family I am sure will remain estranged from him, justifiably so. A long term in prison is unlikely to improve his psychological health, but mitigating factors can only go so far.
4. Carr exploited his daughter's vulnerability. He exploited her innocence. Each offence showed a callous disregard for his daughter's physical and mental wellbeing. He showed no regard for her, and showed no understanding of the possible impact on her of his crimes, despite his own experience of abuse.
5. There are, unfortunately, worse examples of such offending, but that does not diminish the seriousness of the matters for sentence. Courts are required to analyse and compare horrors inflicted upon others as part of the calculus for converting human behaviour in all its forms into units of punishment: Weininger v The Queen (2003) 212 CLR 629.
6. The sentence imposed is only one indicator of the seriousness of which the Courts view the crimes committed against a child. That said, a Court sentencing an offender must take into account all relevant considerations. This means a direct correlation between the harm done and the time to be served is impossible. A victim of sexual offences should never equate or measure her injury with the punishment actually inflicted on the offender.
7. Adequate punishment involves exacting just retribution for what Carr did to his daughter. Retribution is the notion that reflects the community's expectation that offenders will suffer punishment, and that particular offences will merit severe punishment. Every child is in need of and deserving of such protection and vindication as the criminal law can provide. It is perhaps tragic in this case that Carr, as a child, did not receive that protection and vindication.
8. The sentence must however, by its severity, recognise the gross violations of the complainant in this matter's, the child in this matter's, the daughter in this matter's, sexual integrity. Here, the offence was committed by a father, and the Court must recognise that fact. The sentence must attempt to vindicate the dignity of the complainant. The sentence must attempt, so far as is practicable, to denounce what was done and express the community's disapproval of what Carr did to his daughter in 2000.

ORDERS

1. The indicative sentences will reflect the 10% reduction required. The total sentence and the non-parole period will reflect all of the matters all of the matters that I have discussed.
2. I have to indicate a sentence for each offence. 1. In count 1, I indicate a sentence of 11 months. 2. In count 2, I indicate a sentence of one year and four months. 3. Count 3, I indicate a sentence of one year and four months. 4. Count 4, I indicate a sentence of 11 months. 5. Count 5, I indicate a sentence of two years and eight months. 6. Count 6, which takes into account the matters on the form 1, I indicate a sentence of four years and 11 months. 7. Count 7, I indicate a sentence of four years.
3. The total aggregate sentence is one of eight years and six months. There will be a non-parole period of five years and six months commencing on 26 September 2019 and expiring on 25 March 2025. The balance of the sentence of three years is to commence on the expiration of the non-parole period. The total sentence will expire on 25 March 2028. You will be eligible for consideration for a release to parole on the expiration of the non-parole period, that is 25 March 2025.

Amendments 25 May 2021 - [78] Typographical error "style of" amended to "stale" 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: 25 May 2021