R v Casserly

Parties: Rex (Crown)
Daniel Casserly (Offender)

Representation: Counsel:
Ms Jewison (Offender)
Ms C Hodgeman (Crown)
Solicitors:
Solicitor for Aboriginal Legal Service (Offender)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2023/00030583; 2023/00028618

Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name of the victim has not been identified.

SENTENCING REMARKS

(THIS IS A REVISED VERSION OF REMARKS DELIVERED EX TEMPORE)

Introduction

1. On 15 December 2025, after a 5-day trial which I presided over, a jury found Mr Daniel Casserly, hereafter the offender, guilty of the offence of aggravated sexual assault committed against the victim on 24 January 2023 at Cardiff. The offence was contrary to s 61J(1) of the Crimes Act 1900 (NSW). The circumstance of aggravation was the victim being under the age of 16 years. She was 13 years of age.

2. The maximum penalty for the offence is 20 years’ imprisonment. The standard non-parole period is 10 years’ imprisonment.

3. As was recently emphasised in Hancock v R [2025] NSWCCA at [32]:

“If convicted after a jury trial, the obligation of the sentencing judge is to find facts for the purposes of sentencing consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 378; The Queen v De Simoni (1981) 147 CLR 383 at 392; [1981] HCA 31 per Gibbs CJ. Beyond admitting the elements of an offence, a plea of guilty leaves at large the facts to be found by the sentencing judge on sentence.”

4. Where there is factual dispute, a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities: The Queen v Olbrich (1999) 199 CLR 270 at [27].

The facts

5. These are substantially drawn from the evidence at trial given by the victim, whose testimony the jury plainly accepted in material respects. The offender accepts that the facts for the sentencing exercise would proceed in line with that evidence. The Crown prepared a statement of proposed facts on the eve of the sentencing hearing, which purportedly were consistent with her version of what occurred, which I have taken into account.

6. The victim was born in July 2009. Her biological father is JD. Her mother is SR. Her parents separated when she was very young. The victim lived, mainly, with her mother, her sister and her grandmother (her mother’s mother) but sometimes she stayed with her father. Both parents lived, in different places, in Cardiff. At the time of the offending, the victim was living with her mother and grandmother.

7. The offender was a long-standing friend of JD and regular visitor to his place and was also well-known to SR.

8. The victim knew the offender for basically her whole life. She described him as being like an uncle to her and said she trusted him.

9. On the afternoon of 24 January 2023, the victim asked her mother whether she could stay at her father’s place. She wanted to get away from her younger sister; who she said was annoying her. Her mother dropped the victim off. The victim arrived at her father’s place at about 2pm. Her paternal grandfather lived with her father. There was also a dog at the place.

10. In the afternoon, the victim and her father went to the shops a couple of times. After they returned home in the afternoon, the victim played with the dog. She got wet and changed her underpants. She put on her black underpants.

11. On the evening of 24 January 2023, after dinner, the offender visited JD’s place. This was around 7:30pm or 8pm. Apart from her father, her paternal grandfather, RD, was also at home and in the kitchen when the offender arrived. When he arrived, the victim and JD were in JD’s bedroom. The offender went straight into JD’s bedroom. JD was on a video call, on his mobile phone, with some friends.

12. The offender was asking for JD’s help in relation to setting up ‘Fetch’, a hub that enables a person to watch movies, on their mobile phone. Her father could not help him, but the victim said that she knew what to do. This was to reset ‘Fetch’.

13. The victim went into her bedroom, taking the offender’s mobile phone. She was wearing black and white checked pyjamas, black underpants and a green coloured bra.

14. The victim’s bedroom was next to JD’s bedroom. The victim was on her own phone, texting a friend. But she also had the offender’s phone in her hand. She asked the offender to come with her, telling him to “just follow me” into her bedroom and to ‘walk and talk’. She asked him to go to her room three times. The first time she asked him, the offender ignored her request. This was about 10 minutes after the offender’s arrival at the home. She had the offender’s phone as she was still trying to fix it.

15. The victim said she put the offender’s phone on the bed, where it remained during the course of the incident. JD was in his bedroom whilst she was in her bedroom with the offender. She believed that RD was in the kitchen.

16. Inside the bedroom, the victim was positioned on the window side of the bed. The offender was near the end of the bed.

17. Less than 5 minutes after they had been in her bedroom, the offender whispered to the victim “Do you want my dick?”. In this period, the offender was standing near the door. She responded by asking “what” and the offender asked the same question. The victim felt scared and she told him “no”. The victim, who recalled being positioned on the right-hand side of the bed at this time, tried to walk around the bed to get out of the bedroom. She recalled that the bedroom door remained open.

18. The offender asked her where she was going and she explained that she was going to tell her father. He asked her why she wanted to do that. She said that the door was open and she walked up to it to get out, but the offender positioned himself in front of the door and stayed in the same spot.

19. The offender then told her to lay on the bed. She said “No, not when you’re in here” in an angry tone. She and the offender were near the door to the bedroom. She asked him to let her out of the room.

20. The offender moved his arms and put his hands on the victim’s chest area and held her around the waist. He tripped her in a way that caused her to land backwards on to the bed. He then fell on the bed landing on top of her.

21. The offender said to her “Just sit on my dick”. The victim said “no”. The victim felt sick and did not know what to do. The offender crawled on top of her with the front part of his body, with his hand over her waist.

22. He then rolled her so that she was on top of him and cuddled her: she described herself as sitting like a frog on him. She had both of her knees, shins and feet on the bed, with her hips on top of the offender, level with his penis. He lay straight under her. He and the victim were face to face.

23. He moved her pyjamas and undies out of the way with his hand. She sensed that he unzipped his pants, although she did not actually see him unzip them. She recalled that his shorts were still on. She felt his penis. She did not see him trying to put his penis inside her, but felt wetness in her vagina. The offender’s penis went in and out of her vagina for a short time. She described it as “in and out .. like not even a second”. The victim got angry and tried to push him off, by putting her fingers into his shoulder bone and putting her hands between his hands. Whilst she struggled to get off the offender, he said he thought “he had cummed”.

24. She had been asked by the Crown whether she ever said ‘no’ at any stage, the victim said ‘yeah’; although she also said that she blacked out. This, she later explained, was not a loss of consciousness. She said she was not paying attention.

25. The victim later explained to the police interviewer that she was unable to call out to her father, but felt sick and did not know what to do. At any rate, she did not consider herself close to her father.

26. The offender pulled the back of her head on to him in order to kiss her. He put his tongue inside her mouth for what seemed like a second. She was able to push him away, by putting her hands between his hands to break his hold. She ran to the bathroom, washed her face and had a cold shower.

27. After the shower, she returned to her father’s bedroom, where the offender and her father were. The offender left the house a short time later. The victim stayed the night and slept in her father’s bed. She was picked up by her mother the next morning.

28. Consistent with the jury’s verdict, and the victim’s evidence of clear verbal communication to him and her general conduct, I find that the offender actually knew that the victim did not consent to the penile-vaginal intercourse. That was the singular species of knowledge that the Crown had put to the jury. I agree with the Crown that such actual knowledge that he had was present notwithstanding his intellectual limitations.

29. DNA on the victim’s black underpants indicated a mixture originating from 2 individuals. The major contributor to the mixture was identified as having the same profile as the offender.

Assessment of the objective gravity of the offending

30. Beyond satisfaction of the essential elements of that offence (including the victim’s absence of consent and the offender’s knowledge of that) I take into account the following matters:

(a) the victim was 13 years old; the offender was 35 years of age; (b) the significant age differential – the offender was 22 years older than her; (c) there was no real pre-meditation: the victim asked the offender to come into the bedroom and he followed her (after some reluctance). (d) His offending should be regarded as opportunistic – even brazen, having regard to the proximity of another person – his longstanding friend – in the home when the offending occurred, (e) the offender ejaculated on or near the victim’s vagina (although it was not proven to have been in her vagina), without protection, (f) the circumstance that the offending occurred over the victim’s verbal and physical resistance; (g) once the offender had made a sexual overture towards her, he constructively blocked her means of escape from the bedroom. (h) The offending was accompanied by some relatively minor acts of force upon the victim, such as his pushing the victim on to the bed and rolling her over. (i) The offending was of relatively brief duration (although I acknowledge that this is not uncommon as an offender will have a natural motive to evade detection); (j) Whilst not diminishing the long-term effects of harm, there were no immediate physical harms visited upon the victim, such as bruising. Indeed, the victim had consumed noodles not long after the assault. In saying this, she was clearly shaken by the offending, as was apparent in her wanting to sleep in her father’s bed that evening.

31. The offending was naturally serious, but in my view fell just below what would be regarded as the mid-range of objective seriousness for offences of this kind.

Statutory aggravating factors

32. I further find that:

(a) the offending took place in the victim’s father’s home, where she periodically resided and which she was entitled to treat as a sanctuary; (b) the offending involved an abuse of trust by a person who the victim regarded (without dispute) as being an uncle-like figure, at any rate, a long-standing friend of her father.

Victim impact statement

33. The victim produced a typed statement, which was read out this morning by a support person. Amongst other things, the victim referred to the betrayal of trust and the severe disruption to her childhood and the relationships to those she was closest to, and even, very sadly, suicide attempts.

34. I have regard to the trauma of sexual abuse on children as understood at the time of sentencing. As the offender’s Counsel correctly acknowledges, child sex offences have a profound and deleterious effect upon victims for many years, if not their whole lives: R v Gavel [2014] NSWCCA 56 at [110].

The offender’s subjective case

Age, background, intellectual disability and mental health issues

35. I have already noted the offender’s age.

36. I accept the evidence, which was uncontradicted at the trial, that the offender has at least an intellectual disability. These are indications that he also has neurodevelopmental disorders of autism and ADHD, although the Crown appears to dispute this. I will refer to that matter later. This was the subject of a report of Dr Melissa Hughes, a clinical neuropsychologist and forensic pathologist, dated 17 July 2023, which had been relied upon at a fitness hearing just prior to the trial and was handed up at the sentencing hearing. The offender had also been examined by an occupational therapist and speech pathologist.

37. More recently, the offender engaged another clinical neuropsychologist, Lucienne Barhon, who reported on 25 February 2026. Ms Barhon considered Dr Hughes’ report and the views of the other professionals referred to. Much of the offender’s background appears from that report and his Counsel appropriately summarised it as having the following features:

38. The offender is indigenous and has had a history of intergenerational trauma and poor parental attachment. He himself suffered early childhood trauma, including suffering neglect and maltreatment, such as physical abuse. In one incident, he was burned to such degree as to require hospital care;

39. He was placed in foster care from as early as 2 years of age. He was exposed to violence, substance misuse and mistreatment. He moved many times in foster care before settling with supportive carers at the age of 16. Fortunately for him, he has remained supported by this family since and indeed, was living in a granny flat in that family home prior to his incarceration;

40. He has had one partner, with whom he has an 11-year-old daughter. He remains close to both of them, and requires support from them to manage his daily activities;

41. He has had lifelong impairments in his cognitive and adaptive functioning. Throughout his schooling, which he continued through to year 12 although subject to the disruption occasioned by at least two changes, he was in special classes requiring one-on-one support;

42. He had some employment through a disability empowerment program, although that broke down;

43. His financial affairs have been managed by the Public Trustee since adolescence.

44. He receives support from the disability support pension and the NDIS.

45. I note that none of this factual background was contested by the Crown.

46. Ms Barhon confirmed that the offender met the DSM-5-TR criteria for Intellectual Development Disorder (ie intellectual disability) of mild to moderate severity.

47. At the trial, there was evidence of the offender denying to the victim’s mother that he had been in the bedroom. That was a lie, as the offender acknowledged in his re-examination. The Crown did not rely upon it at trial as evidence of a consciousness of guilt.

48. The last finding does not, however, preclude a finding, where justified by the evidence, on the probabilities, that the offender did not have the capacity of an ordinary person, to fully appreciate how wrong his conduct was, or his capacity to exercise self-control; and generally impinged upon his capacity to engage in rational judgement (relative to that of an ordinary person).

Mental abnormality and Moral culpability

42. The offender invokes principles of Bugmy (at least to some extent) and De La Rosa, relating to the salience of childhood or early social disadvantage and mental abnormality, which may affect the ordinary application of sentencing considerations, such as general and specific deterrence, retribution and denunciation.

43. Not dissimilar to the offender’s submissions, the Crown submitted that the offender’s background did not quite rise to the level of ‘profound deprivation’ enlivening Bugmy principles; raising the fair observation that whatever could be said about his childhood, he had been able to live an unblemished life until his first offence at the age of 35. This accords with my recollection that in the course of the trial, emphasis was made upon the offender’s gentle nature; which was consistent with the good character direction made in his favour. On this point, I agree that such disadvantage can be taken into account in the mix, even if it is not shown how it may have contributed to the offending.

44. The Crown did not dispute that he suffered from a mental abnormality and that Muldrock and De La Rosa principles were engaged.

45. As was recently emphasised (DG v R [2025] NSWCCA 137), moral culpability is a concept that is distinctive of the concept of the objective gravity of the offending. It is well-established that the existence of a mental disorder may serve to reduce the seriousness of the offending, given the offender’s moral culpability, where it is shown that the disorder contributed, in a material way, to the offending, with such causal connection not being determined in any overtly technical way (Oliver v R [2025] NSWCCA 227 at [90]).

46. Ms Barhon did not overstate the significance of childhood disadvantage and the offender’s cognitive impairments. In a measured way, she said that these matters contributed, although do not fully explain the offending. Their contribution occurred through the demonstration of impoverished judgment, reasoning and communication skills. Ms Barhon appeared more circumspect about the significance of his Autism and ADHD and whether there was sufficient corroborative proof of these diagnoses; although she still thought that they were likely. The expert spoke of the possibility that they may have contributed to impulsive or disinhibited behaviour. But the offender’s clinical picture was complicated by his history of childhood trauma and intellectual disability. Ms Barhon also discerned that he had an anxiety disorder going back to at least the days of the Pandemic, although considered that there was no evidence that this contributed to the offending.

47. The Crown took issue that the offender’s moral culpability was significantly reduced on account of his intellectual disability. Indeed it contests, at least in its written submissions, whether it was even material. There was no evidence to indicate that he lacked the capacity as an ordinary person might.

48. I disagree. The very fact that the offender followed the victim, then 13 years old, and wearing pyjamas, into her bedroom in the evening itself bespoke an impoverished level of judgement consistent with an intellectual disability and demonstrated a diminished capacity to reason as an ordinary person might.

49. The Crown also submits that there is no evidence of such alternative diagnoses of ASD or ADHD of, if there was, symptoms associated with such diagnoses further contributed to the offending. However, that overlooks the evidence, which was referred to in Dr Hughes’ report of 2023, amongst other places, that his NDIS funding was founded upon diagnoses of Autism, ADHD, and also Obsessive Compulsive Disorder, in conjunction with his intellectual disability. Further, as his Counsel reminded me this morning, there was evidence from Mr Faull at the hearing about the offender’s strange social behaviour, including a tendency to make animal-sounding noises.

50. Although Ms Barhon was understandably circumspect on the matter, I think that ASD and ADHD materially contributed, in addition to this intellectual disability, to the offending. His conduct evinced no understanding of the needs and concerns of the victim and the circumstances of the offending struck me as impulsive. Those included the curious circumstance that the offender was initially reluctant to even follow the victim into her bedroom; where the offending occurred.

51. I further note that it is unnecessary that an intellectual disability or for that matter, associated development disorders to represent the sole, or even predominant cause, or contribution to, the offending.

52. The Crown accepted that there is scope to determine some reduction in sentence on account that he is not a suitable vehicle for general deterrence. It also accepted that his time in custody will be more onerous than a person who did not labour under those conditions. That is to say, the Crown appeared to accept the second and third of the five principles identified in De La Rosa were engaged. As indicated I would go further, however.

53. Recognising these matters in mitigation, it is also important to state, with reference to the essential elements of the offence and the facts as I have found them that the offender’s conduct involved the infliction of sexual violence against a child whom he actually knew was not consenting in the aggravating circumstances I identified.

54. Whilst I find that the offender’s mental health concerns and intellectual disabilities materially contributed to the offending and reduced his moral culpability, although the weight to be given to the considerations of general deterrence, denunciation and specific deterrence are moderated, they remain important considerations in the synthesising exercise.

Antecedents and prior good character

55. The offender has no criminal history. I also note that his time in custody has not involved any infractions. At the trial, I gave the jury a good character direction.

56. This is not an instance whereby the offender used his good character (or lack of convictions) to assist him to commit the offending, so as to preclude him relying upon these matters as mitigating factors.

57. Nonetheless, the offender’s good character is of limited assistance to him. It is generally taken to have less significance in child sex cases than other types of cases: R v PGM (2008) 187 A Crim R 152 at [42]-[43].

58. But, as a first time offender, he is entitled to some leniency.

Remorse

59. The offender maintains his innocence, in the face of the jury verdict, as is his right. Ms Barhon noted that he did not convey any empathy towards the victim; which, in fairness, I partly attribute to his Autism.

60. The offender’s outlook deprives him of the opportunity of relying upon a factor in mitigation and has knock-on effects upon an assessment of his rehabilitation prospects.

Rehabilitation prospects and likelihood of re-offending

61. I have noted the support that the offender receives from his former foster parents, former partner and continuing bonds with his daughter. It is hoped of course that this will continue after his eventual release into the community.

62. Ms Barhon confirmed that his neurodevelopmental disorders are permanent. She considered that with appropriate therapeutic support and regular functional support, he had a reasonable prospect of rehabilitation.

63. Ms Barhon specifically considered the offender’s risk of sexual reoffending, deploying the STATIC-99R scale of actuarial risk assessment. According to this scale, the offender scored in the ‘Average/Level III’ range. The percentage risks for reoffending were not insignificant. This explained why the expert considered that he would benefit from participation in a sex offender program, and one that was specifically tailored for someone with his disabilities.

64. She thought he would also be assisted by psychotherapeutic and psychiatric support.

65. Ms Barhon noted that he would also require assistance to provide for accommodation.

66. The offender’s Counsel submitted that his rehabilitation prospects are reasonably good. She emphasised that any earlier opportunities for help that had not been fully availed of did not occur for want of trying. He had not had any treatment specifically related to the index offending.

67. I regard his rehabilitation prospects as reasonable, a finding which I note that the Crown accepts. Having regard to Ms Barhon’s opinion, upon which I place significant weight, I cannot discount the possibility that he might reoffend, although I consider that unlikely. But I do not consider that he poses a serious risk to the protection of the community.

Hardship

68. Ms Barhon commented upon the offender’s special vulnerability within the custodial environment and noted the offender’s reporting that he had already been taken advantage of with coerced purchasing of goods for inmates.

69. I accept that the offender’s intellectual disability and neuro-developmental disorders is apt to make his experience in custody substantially more onerous than it would a person in normal health and probably worsen his mental health. As indicated earlier in these remarks, the Crown accepts that hardship is apparent.

70. Ms Barhon added that the continued incarceration was adversely affecting the emotional wellbeing of his daughter, which I accept as plausible, although would not be regarded as an exceptional circumstance materially influencing the sentencing exercise.

The offender as a ‘registrable person’

71. I will address this topic further after passing sentence. For present purposes, however, I note that the circumstance that the offender is or may become a ‘registrable person’ under the Child Protection (Offenders Registration) Act 2000 (NSW) cannot be taken into account as a mitigating factor. His name was not on the NSW Child Protection Register.

Instinctive synthesis

72. I have noted the maximum penalty and standard non-parole period as legislative guideposts.

73. I consider all of the sentencing considerations in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’). Ordinarily for cases of this kind, general deterrence, denunciation and recognising the harm to the victim weigh heavily in the sentencing exercise. For example, in EG v R [2015] NSWCCA 21 (‘EG’) at [42], Hoeben CJ at CL (Harrison and RA Hulme JJ agreeing) observed that:

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

74. However, as was also recognised in EG, the presence in an offender of an intellectual disability, and likely development disorders, along with trauma sourced to events in his childhood, which contributed to the offending may serve to reduce the offender’s moral culpability in a way that reduces the force of general deterrence and denunciation. Moreover, where the offending is a one-off and unpremeditated instance of offending, committed by a person of prior good character, the force of the considerations of specific deterrence, retribution, and community protection are also moderated. That is the position in this case. Nevertheless, as indicated, the sentence I impose must reflect the harm to the victim and make the offender accountable for his offending.

75. I find that the s 5(1) threshold is crossed. I note that the offender’s Counsel concedes as much.

76. It is common ground that the commencement date for the sentence is to be backdated to the date that the offender entered into custody, being 13 December 2025.

77. Having regard to his being a first time offender, his mental condition and issues and the especially onerous conditions he has faced and will continue to face in custody, and his special requirements to aid his rehabilitation, I find that special circumstances arise. The Crown did not wish to be heard against that. As will become apparent, I consider that a sizable reduction in the statutory ratio is warranted. I note, for comparative purposes, that in the seminal decision in Muldrock, the High Court appeared to countenance a very short non-parole period relative to the head sentence in the circumstances of that case.

Sentence

78. Mr Casserly, please stand.

79. You are convicted of the offence of aggravated sexual assault.

80. You are sentenced to a term of imprisonment of 3 years and 2 months, commencing on 13 December 2025 and expiring on 12 February 2029, with a non-parole period of 1 year and 8 months, expiring on 12 August 2027, after which you will be eligible for release on parole.

Registrable offender

81. The offence for which the offender has been convicted is a ‘Class 1’ offence for the purposes of s 2D(1)(b) of the Child Protection (Offenders Registration) Act 2000 (NSW).

82. (By consent) pursuant to s 2D(1)(b) of the Child Protection (Offenders Registration) Act 2000 (NSW) the offender is a mandatory registrable person pursuant to s 3C(1)(a) for a period of 15 years.

83. I direct that the report of Lucienne Barhon dated 25 February 2026 be brought to the attention of the person within Corrective Services responsible for your supervision.

84. (By consent) pursuant to s 39 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) a Final Apprehended Violence Order with standard conditions is made for protection of the victim for the duration of the non-parole period and for 2 years after the expiration of that period.

**********